The Law Handbook 2024

Chapter 6.1: Tenancy 511 is employed to be present, or is available to be present, at least seven hours a day, five days a week (s 367). A manager may give a resident, or a resident’s visitor, a Notice to Leave the premises if they have reasonable grounds to believe that a serious act of violence by the resident has occurred on the premises, or that the safety of any person on the premises is in danger from the resident (s 368(1)). A Notice to Leave under section 368 of the RT Act must be given as soon as the manager can safely do so after the serious act of violence has occurred (s 326(4) RT Act). A Notice to Leave must be in the prescribed form (s 368(3) RT Act). A Notice to Leave has immediate effect. The resident or visitor must not remain on the premises after receiving the notice (s 369). Templates of the Notice to Leave forms are available to download from CAV’s website (www. consumer.vic.gov.au) . A rental agreement or residency right is suspended when the renter is given notice, but the renter must continue to pay rent (s 370 RT Act). The suspension remains in force for two full business days after it commences (s 371). It is an offence to re-enter the managed premises during the suspension (s 372). The manager must tell VCAT’s principal registrar that the Notice to Leave was given regardless of whether they apply to VCAT (s 373 RT Act). They must do so no later than the end of the next business day after the day on which the Notice to Leave was given (s 373). If within these two business days the manager of the premises applies to VCAT for an urgent hearing to terminate the rental agreement, the suspension continues until the matter is determined (s 371 RT Act). Any application for an urgent hearing to terminate a rental agreement must be heard within two days of the application being made. VCAT must not adjourn hearing such an application for more than a total of five days (s 375). This means that a renter must seek urgent assistance to defend the Notice to Leave. For this reason, before re-entering the premises, parties should contact VCAT to confirm if any application has been made, and, if so, at what time the application was lodged. At an urgent hearing, VCAT will determine whether it was appropriate for the rental provider to issue the Notice to Leave. If VCAT deems it was appropriate, VCAT may make a termination order, but only if VCAT is satisfied that it is ‘reasonable and proportionate’ to do so, considering the factors set out in section 330A of the RT Act (s 376(1A). (See ‘Reasonable and proportionate test’, below.) If the rental provider has not made an application to VCAT within two business days, the notice lapses and the renter can return. The suspension will also cease if VCAT determines that it was not appropriate to give the resident a Notice to Leave (s 376(1B) RT Act). The rental provider must not allow any other person to occupy the premises while the suspension is in force (s 377). It is an offence to give a Notice to Leave or purported Notice to Leave without reasonable grounds (s 368A RT Act). If reasonable grounds cannot be established, the renter may seek to apply for compensation (s 376). However, careful consideration is required with respect to the evidence that may be given in the proceeding. Renters who have received, or who anticipate receiving, a Notice to Leave should ensure they are contactable (e.g. they have their mobile phone and charger) and should let any support services they use know how to contact them. As indicated on the notice, an excluded person should contact VCAT to determine whether an application has been made and what the anticipated hearing date is. If the renter relies on any health care aids or medications, it is permissible for the renter to negotiate with the rental provider to send an authorised third party on their behalf to collect these (s 372A RT Act). Family or personal violence Amanager must not give a resident a Notice to Leave: • if the serious act of violence or the act that endangered the safety of a person is family violence; or • if the resident’s visitor is a family member of the resident (s 368(5) RT Act). Procedure for ending a rental agreement Overview Section 91B of the RT Act provides that: Despite any Act or law to the contrary, a residential rental agreement does not terminate and must not be terminated except in accordance with this Division or Part 7 or 8.