The Law Handbook 2024

512 Section 6: Houses, communities and the road Therefore, a rental agreement continues until it is ended in accordance with the termination provisions of the RT Act. Any attempt to end a rental agreement that does not accord with the termination provisions (e.g. an illegal eviction) is of no effect. To legally evict a renter, the rental provider must: • serve a valid Notice to Vacate (or have been served with a Notice of Intention to Vacate by the renter); • make an application to VCAT for a possession order; • be granted a possession order by VCAT; and • purchase a warrant of possession, to be executed by the police. A rental provider cannot legally evict a renter without obtaining a possession order and a warrant of possession. A warrant of possession directs the police to evict the renter from the property. Only the police can carry out the eviction; the rental provider cannot evict the renter (ss 91P, 355 RT Act). The procedures for applying for a possession order vary according to the type of Notice to Vacate the rental provider has served. Parties should also consult the relevant VCAT Rules. Notice to Vacate: Form and serving of notices Notice of Intention to Vacate (renter) A renter’s Notice of Intention to Vacate must be in writing and signed by the renter or their agent (s 91ZZN RT Act). A Notice of Intention to Vacate does not need to be in the prescribed form. Renters may wish to use the ‘Notice of Intention to Vacate Premises by Renter’ form, which is available on CAV’s website (www.consumer.vic.gov.au) . Notice to Vacate (rental provider) A Notice to Vacate must comply with the six mandatory conditions listed in section 91ZZO of the RT Act; these conditions require the notice to: • be in the relevant prescribed form; • be addressed to the renter; • be signed by the person giving the notice or their agent; • specify the reason for the giving of the notice; • be accompanied by documentary evidence (if required) to support the reason for giving the notice; and • specify the termination date. An application for a possession order supported by a Notice to Vacate that fails to comply with the six conditions is incapable of invoking VCAT’s jurisdiction. Such an application should be dismissed at VCAT. The Notice to Vacate cannot be amended to confer jurisdiction upon VCAT. Validity of Notices to Vacate Any Notice to Vacate should be checked carefully to ensure that it is valid. Common mistakes on Notices to Vacate that render them invalid include: • the notice is not given to the renter in person, or it is not sent by registered post, or electronically (if consent to electronic service has been given and not revoked) (s 506(3) RT Act); • less than the required amount of notice has been given (e.g. the rental provider has not allowed time for delivery, if it was sent by registered post, or has miscounted the days); • the rental provider is not entitled to serve the notice (e.g. the rental provider has served a Notice to Vacate for demolition but has not obtained the necessary permits; see ‘60-day Notice to Vacate’, above); • the rental provider has not specified the actual reason for the notice or has not provided sufficient details for the notice (s 91ZZO(d)); • documentary evidence, if required, is not attached (s 91ZZO(e)); or • the notice is not in the prescribed form (s 91ZZO(a)). Reason for Notice to Vacate The Notice to Vacate must state the reason for which it was given (s 91ZZO(d) RT Act). This requirement is not satisfied by merely quoting the legislation. Rather, the notice must be completed with a sufficient degree of detail to enable the renter to understand the facts being alleged as a basis for terminating the rental agreement. (See Smith v Director of Housing [2005] VSC 46; Jafarpourasr v Tancevski [2018] VSC 497 (4 September 2018).) An application for