The Law Handbook 2024

508 Section 6: Houses, communities and the road provider must also be able to demonstrate to VCAT that they have all necessary permits, if applicable. If there is a fixed-term rental agreement, the notice must not specify a termination date that is earlier than the last day of that agreement (s 91ZZI(1)(b)). The prohibition on re-letting premises for six months after the date the notice was given does not apply to notices issued under section 91ZX of the RT Act. The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO). The documentary evidence required is: • a building permit for repairs or renovation; or • photographic proof that the repairs are required and a contract with, or quotation from, a suitably qualified tradesperson for carrying out planned repairs stating: 1 the nature of the repairs required, 2 the reasons why the premises need to be vacated by the renter in order to carry out the repairs, and 3 an estimate of the length of time it will take to complete the repairs. Premises to be demolished A rental provider may give a 60-day Notice to Vacate if they intend to demolish the premises immediately after the termination date (s 91ZY RT Act). A rental provider must have obtained all the necessary permits before issuing the Notice to Vacate (s 91ZY(1)(b)). A rental provider must be able to show VCAT that they have all the necessary permits to demolish the premises. If they cannot show this, the renter can ask VCAT to dismiss the rental provider’s application for possession. The local council can tell the renter if a demolition permit has been granted. If there is a fixed-term rental agreement, the notice must not specify a termination date that is earlier than the last day of the agreement (s 91ZZI(1) (b) RT Act). A rental provider who obtains possession of the premises after serving a notice under this section must not re-let the premises to another person within six months of giving this notice (s 91ZZH(1) RT Act). The notice must include documentary evidence to support the reason for giving the notice (s 91ZZO). The documentary evidence required is a building permit for the demolition and a contract with a suitably qualified builder-demolisher, stating the date that demolition will occur. Notice to Vacate to end a fixed-term agreement This notice is only available in relation to first fixed- term rental agreements. If a rental provider wants the renter to move out once the initial fixed-term rental agreement has ended, the Notice to Vacate must be served: • at least 90 days before the last day of the initial fixed-term rental agreement, if the rental agreement is for a fixed term of six months or more (s 91ZZD(3), 91ZZDA(3) RT Act); or • at least 60days before the last dayof the initial fixed- term rental agreement, if the rental agreement is for a fixed term of less than six months. The termination date in the notice cannot be a date that is before the end of the initial fixed-term agreement (s 91ZZD, 91ZZDA RT Act) (see also ‘Retaliation’, below). Notice to Vacate by mortgagee When a mortgage over the premises was entered into before the rental agreement was entered into, and the mortgagee (usually a bank) becomes entitled to possession of, or the right to exercise a power of sale over, the premises, the mortgagee may give the renter a 60-day Notice to Vacate (s 91ZZK(1) RT Act). This Notice to Vacate may be given during a fixed- term or a periodic rental agreement. Mortgagees may also be entitled to give other notices under Part 5 of the Act (s 91ZZK(3)). However, in most cases, the mortgagee will rely upon default of mortgage as the reasons for termination (s 91ZZK). If the mortgagee applies under the RT Act, if there are any court orders showing the mortgagee’s entitlement to possession and to exercise the right of sale, copies of the orders must be attached to the application. Failure to do so will result in their application being dismissed (s 325) (see Commonwealth Bank of Australia v Shrestha (Residential Tenancies) [2023] VCAT 331 (28 March 2023)). There has, however, been controversy over whether or not a mortgagee must end an agreement according to the RT Act when they become entitled