The Law Handbook 2024

510 Section 6: Houses, communities and the road If the renter does not apply to VCAT within the specified time, they can argue that the notice is retaliatory when the rental provider applies to VCAT for possession. In the case of a Notice to Vacate that is given for threats and intimidation (s 91ZK RT Act), the notice has no effect if it has been given in response to a renter exercising, or trying to exercise, their rights under the RT Act (e.g. requesting repairs). Strictly speaking, ‘retaliation’ is limited to sections 91ZZD, 91ZZDA and 91ZK of the RT Act. However, if renters believe other notices are used in retaliation, they should place the rental provider on notice of section 91ZZH and monitor the property after termination of the rental agreement. If a Notice to Vacate has purportedly been in retaliation, evidence of this should be included with evidence about the credibility of the rental provider’s conduct and whether they have acted in good faith. The rental provider will need to satisfy VCAT that they will follow through with the action set out in the Notice to Vacate. It will be a factual matter for VCAT to determine if it is genuinely satisfied that a possession order ought to be given in the circumstances based on the evidence before it. Challenging a Notice to Vacate A renter can challenge a 60-day Notice to Vacate – except for a notice by a mortgagee or a notice for the end of a fixed-term agreement (see ‘Notices to Vacate that have no effect’, above, for when notices about the end of fixed-term agreements can be challenged) – if they think that it is invalid, including if it has ‘no effect’ (s 91ZZS(1) RT Act). If a renter wants to challenge a Notice to Vacate before there is a possession order hearing at VCAT, they must apply to VCAT within 30 days of the date that they received the Notice to Vacate. If they do not challenge the notice within 30 days, they can still challenge its validity at the possession order hearing (s 91ZZS(2) RT Act). (See also Ross v Tacton Building Design & Development (Residential Tenancies) [2019] VCAT 1420 (17 September 2019).) Family or personal violence If a renter has been given a Notice to Vacate for an act or breach that was caused by someone who has subjected the renter to family or personal violence, the renter can apply to VCAT to challenge the notice (s 91ZZU RT Act). This defence is only available to the following reasons for the Notices to Vacate: • damage (s 91ZI); • danger (s 91ZJ); • threats and intimidation (s 91ZK); • failure to follow a VCAT order (s 91ZO); • breaching a duty after having received two previous breach of duty notices for the same breach (s 91ZP); • using the property for an illegal purpose (s 91ZQ); and • drug-related conduct in public housing (s 91ZR). If a renter receives a Notice to Vacate and would like to know if they can challenge it, they should contact Tenants Victoria as soon as possible (see ‘Contacts’ at the end of this chapter). A renter can challenge the Notice to Vacate at, or before, a VCAT possession order hearing. If they want to apply to VCAT to challenge the Notice to Vacate they must do this within 30 days of being given the Notice to Vacate (s 91ZZU RT Act). If the renter has not applied before the possession order hearing, leave might be sought for the renter to make the application (see South Port Community Housing Group Inc v Ng (Residential Tenancies) [2022] VCAT 614 (3 June 2022)). Safety and seeking support should always be considered if this defence is to be raised. VCAT must make an order that the Notice to Vacate is invalid if it is satisfied that the renter has been, or is being, subjected to family or personal violence, and the act or breach for which the notice was given was caused by the perpetrator of that violence (s 91ZZV RT Act). Notice to Leave, offences and suspensions The RT Act contains specific provisions relating to violence on ‘managed premises’. Managed premises are defined as caravan parks, rooming houses, Part 4A parks, and ‘managed high-density buildings’, which are buildings that contain two or more rented premises and have an onsite manager. A Notice to Leave is different from a Notice to Vacate. Only a manager of a managed premises may give a Notice to Leave (s 368 RT Act). A ‘manager’ includes an onsite manager, rooming house owner, caravan park owner or site owner. An ‘onsite-manager’ is specifically defined as a person whose duties include security, day-to-day operational responsibility, and who