The Law Handbook 2024

Chapter 6.1: Tenancy 517 been an increasing trend in VCAT delaying the day of possession (s 333; see also ‘Exceptions’, below) rather than postponing the warrant. In either case, the maximum additional time period to be provided is 30 days. SDA residents are entitled to seek a postponement of a warrant for up to 30 days. This applies to all possession orders under Part 12A of the RT Act (s 498ZZQ). Exceptions VCAT cannot order that a warrant be postponed when the application relates to a Notice to Vacate for the following reasons: • causing serious damage, either deliberately or recklessly (s 91ZI RT Act); • causing danger to neighbours or intimidating the rental provider, or agent, or a contractor or employee of the rental provider or agent (s 91ZI); • being threatening or intimidating to the rental provider, or agent, or to a contractor or employee of the rental provider or agent (ss 91ZK); or • where the property has been destroyed or it is unfit for human habitation (ss 91ZL). While a renter cannot ask for a warrant of possession to be postponed, they can ask VCAT to set a vacate date in the possession order (this gives the renter a similar postponement). VCAT can set the vacate date in the possession order 30 days from the date the order is made, which can give the renter time to move out, access social supports, or locate alternative accommodation (s 333(1B) RT Act). Possession orders A possession order must include: • the date by which the renter must vacate the premises (at most, 30 days after the order is made); • a directive that the renter vacates the premises by this date; • a directive to VCAT’s principal registrar to issue a warrant of possession at the applicant’s request; and • a warning that if the renter fails to comply with the above directive, they may be forcibly evicted from the premises by a police officer (or ‘authorised person’) (s 333(1), (2) RT Act). A possession order requires the renter to leave the premises on a specific date (usually the date of the hearing). However, the renter cannot be forced to vacate the property unless it is by a police officer who has a warrant of possession. A renter continues to be liable for rent for as long as they are in possession of the property. However, once a possession order has been made, renters should ensure they seek any supports and resources required to relocate and protect their personal belongings and future welfare. A possession order is valid for up to six months (s 351 RT Act). In some cases, especially in social housing, this means that a rental provider may not necessarily purchase a warrant immediately once they are able to do so. Renters who are promised to not have the warrant executed against them in exchange for paying rent arrears, or other undertakings, should ensure that any agreement is clear and in writing as a deed. This is because the rental provider can simply purchase the warrant without going back to VCAT. A renter who wishes to show a reason why the warrant should not be executed has to make their case at VCAT. Review hearings (reopening an order) Where a possession order has been made and the renter or their representative did not attend the VCAT hearing, the renter may apply to VCAT for a review hearing (this is called ‘reopening an order’). This allows the absent party to explain why they did not attend the hearing, and to make submissions and give evidence as if the original hearing had not ended. This should be done no later than 14 days after becoming aware of the order (s 120 VCAT Act; r 4.24 VCAT Rules). VCAT will consider whether the renter had a reasonable excuse for not attending the original hearing when determining whether a review should be granted. VCAT may consider both the reasonable excuse for non-attending, as well as whether or not there is a reasonable case to argue and the prejudice to the other party (s 120(4), (4A) VCAT Act). In relation to eviction hearings, renters who are likely to be evicted may still argue that a ‘reasonable case to argue’ includes making submissions in relation to the ‘reasonable and proportionate test’ under section 330A of the RT Act, and in relation to section 352 of the RT Act for a postponement of the warrant. This is not intended as an abuse of process, but is a legitimate right that may not have been observed or contested in the original hearing and would produce a substantially different outcome.