The Law Handbook 2024

506 Section 6: Houses, communities and the road VCAT may make a compliance order. To be a valid compliance order, the order must contain a caution that if the renter does not comply with order, the rental provider may serve a Notice to Vacate (s 212 (4)). If this order is not complied with, then the rental provider may serve a Notice to Vacate pursuant to section 91ZO of the RT Act. The rental provider bears the onus of proof of showing there has been non-compliance with the order. There is some, but limited, discretion afforded to VCAT with respect to trivial non-compliance that is not a recurrence of a previous breach and is not likely to occur again (s 332 RT Act). The RT Act now also provides that compliance orders may be made in lieu of possession orders for Notices to Vacate for danger, damage or threat and intimidation (s 330A RT Act). Any compliance order made should be measurable, specific and, most importantly, time limited (as the compliance order will otherwise operate indefinitely while the rental agreement continues). See ‘Social housing’ and ‘Rental agreements and human rights’, below. Permitting a child to live in the premises The rental provider can serve the renter with a 14-day Notice to Vacate if the renter has failed to comply with a term of the rental agreement that prohibits the renter from permitting a child aged under 16 years to live at the premises (s 91ZT RT Act). Renter living in public housing If the renter lives in public housing, a 14-day Notice to Vacate can also be served on the renter by the rental provider if they have: • committed, or allowed another person to commit, drug offences, such as trafficking, supplying, and cultivating (s 91ZR RT Act); or • misled the rental provider about their eligibility for public housing (s 91ZU). Rental provider moving back into principal place of residence The rental provider can serve the renter with a 14-day Notice to Vacate if the property was their principal place of residence immediately before the rental agreement started, but only if: • the rental agreement stated that the property was their principal place of residence and they intended to move back in at the end of the renter’s first or second fixed-term rental agreement; and • the notice is given before the end of the first, or second, fixed-term rental agreement (s 91ZW RT Act). The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO RT Act). The documentary evidence required is both: • the rental agreement; and • a witnessed statutory declaration signed by the rental provider, confirming the date they intend to resume occupancy. 60-day Notice to Vacate The following notices to vacate are sometimes referred to as ‘no-fault’ notices to vacate because the rental provider can give them at any time as long as the termination date is on or after the last day in the fixed-term agreement. A no-fault Notice to Vacate with a termination date before the end of the fixed- term agreement will generally be invalid (s 91ZA) (1) b) RT Act). Most of the no-fault notices also have documentary evidence requirements, which are published on CAV’s website (www.consumer.vic. gov.au) . A notice that does not have the required documentary evidence attached to the Notice to Vacate at the time of serving is invalid (s 91ZZO(e) RT Act). See, for example, Ahern v Niazoy (Residential Tenancies) [2022] VCAT 205 (23 February 2022). In general, the reasonable and proportionate test may provide a defence in exceptional circumstances to ‘no-fault’ Notices to Vacate. However, the law is still relatively new in this regard, and Notices to Vacate should always be treated seriously as they pose a genuine risk that VCAT will make a possession order. Premises to be occupied by rental provider or rental provider’s family The rental provider may give the renter a 60-day Notice to Vacate if the premises are to be immediately occupied: • by the rental provider, or rental provider’s partner, child, parent or partner’s parent; or