The Law Handbook 2024

Chapter 6.1: Tenancy 505 Other 14-day Notices to Vacate Threats and intimidation The rental provider can serve the renter with a 14-day Notice to Vacate if the renter or another occupier was seriously threatening or intimidating to the rental provider, or agent, or their contractor or employee (s 91ZK RT Act). This Notice to Vacate can be challenged to be of no effect if the renter can show it was given in response to them exercising, or proposing to exercise, a right they have under this RT Act (s 91ZZI(3)). Threats must be more than idle and have a degree of malice and likelihood of being carried out (see Unison Housing Ltd v Perkich (Residential Tenancies) [2020] VCAT 1249 (8 November 2020)). VCAT can award a compliance order instead of a possession order if it considers it appropriate in the circumstances (s 332A RT Act). Failure to pay bond The rental provider can serve the renter with a 14-day Notice to Vacate if the rental agreement says a bond must be paid and the renter does not pay the bond (s 91ZN RT Act). Illegal purposes The rental provider can serve the renter with a 14-day Notice to Vacate if the renter uses or permits others to use the premises for any purpose that is illegal at common law or under an Act (s 91ZQ RT Act). Note there is a difference between an offence that arises out of the use of the premises (e.g. operating an unlicensed brothel) and the premises being merely the scene of an offence (e.g. an assault). Whether the renter has permitted the premises to be used for an illegal purpose may become an issue. Factors often considered to be relevant are whether: • a renter knows of the use of the premises for an illegal purpose; and • fails to take steps to prevent the illegal use. However, there may be circumstances in which the offender overbears the renter’s will, so it cannot be said that the renter voluntarily permitted the offender to remain on the premises (e.g. where the renter is the victim of family violence by the offender). It is likely that such an incident involved the police and any charges are relevant. The reasonable and proportionate test will be relevant to these matters. Assignment or sub-letting without consent The rental provider can serve the renter with a 14- day Notice to Vacate if the renter assigns, sub-lets, or purports to assign or sub-let, the premises without the rental provider’s consent (s 91ZV RT Act). (See ‘Sub-letting’, above.) Successive breaches of renter’s duties Section 91ZP of the RT Act permits a rental provider to serve a 14-day Notice to Vacate for successive breaches of a duty provision (see ‘Rental provider and renter duties’, above). This requires the rental provider to have served two previous breaches of duty notices for breaches of the same ‘duty provision’ (s 91ZP(1)(b) RT Act). Upon the third breach of the same duty provision, a Notice to Vacate may be served on the renter. Alternatively, if a third breach notice is given, the rental provider must wait for the required time to lapse before giving the Notice to Vacate (see Tidd v Jeffcott [2020] VSC 861 (17 December 2020)). The rental provider must prove on the balance of probabilities that each breach has occurred. If any breach fails to be proven, or the notice does not adequately set out the details and circumstances upon which notice was issued, then the Notice to Vacate may be dismissed. This may or may not preclude subsequent applications depending on the reasoning by VCAT regarding the validity of any of the Breach of Duty Notices. While a successive Notice to Vacate was previously a high risk for renters because it mandated VCAT to give a possession order, there may be some limited defence under the reasonable and proportionate test even if the successive breaches are established. It would be onerous, but VCAT may be able to adjourn or dismiss the application if the renter can show a genuine change in action, circumstances or willingness to address the breaches and merit the continuation of the rental agreement. A compliance order is not available (cf s 332A RT Act). Non-compliance with a compliance order If a renter has been given a Breach of Duty Notice (s 208 RT Act), a rental provider can apply to VCAT for a compliance order (s 209). If a breach is proven,