How is a tenancy agreement terminated?
If the landlord gives a Legally binding or effective. Notice to Vacateor the tenant gives a valid Notice of Intention to Vacate, the The agreement between a landlord and a tenant for the rental of a property. agreement ends when:
- the tenant vacates the premises; or
- the landlord obtains a (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property. order from VCAT and the tenant vacates; or
- a A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. of possession is executed.
- For information about Intention to Vacate and Notice to Vacate, see below.
A possession order does not, by itself, allow the landlord to evict the tenant. The landlord must also obtain a warrant of possession from the principal The officer in charge of the administrative section of a court, which is known as the registry. See also prothonotary. of VCAT. The warrant of possession is then executed by the police, the locks changed, and the tenant evicted. The landlord may or may not be present.
It is an A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). for a landlord or their A person who acts for someone else. They can make decisions, carry out tasks or make agreements for the other person. For example, if you ask someone to bid for you at an auction they will be acting as your agent. to require or compel the tenant to vacate the rented premises except in accordance with the RT A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.. It is also an offence for the landlord or their agent to obtain possession of the rented premises by entering them, whether the entry is peaceable or not. It is a (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. if the landlord can show that they had reasonable grounds to believe that the tenant had abandoned the premises (s 229).
If a landlord threatens the tenant with an illegal The lawful removal of a tenant from a property. If a tenant who has been lawfully told to leave refuses to leave, the owner can take possession back by asking a court to issue an order. The order can then be enforced by the Sheriff’s Office., the tenant should urgently apply to VCAT under sections 452 and 472 of the RT Act for a In family law, a court order that prohibits someone from harassing or molesting another person. See also intervention order; personal safety intervention order; family violence intervention order., by immediately attending VCAT in person. They need to show Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. of the threat.
It is strongly recommended in such circumstances, that the tenant take photographs of their personal belongings, tenancy agreement, rent rental receipts and other documents to support the existence of their tenancy and the goods inside the premises at the time of a possible illegal eviction. It is good practice to email these to the tenant, for accessibility and safe keeping.
If the landlord has threatened violence, the tenant may also have grounds for obtaining an A court order that prohibits a person harming or harassing another person. See also family violence intervention order;personal safety intervention order. from the Magistrates’ An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate..
If the landlord attempts to illegally evict the tenant, the tenant should call the police. The police should restrain the landlord from evicting the tenant; however, they are often reluctant to act unless the tenant has a restraining or intervention order against the landlord.
If the tenant has been illegally evicted, they should apply immediately (in person if possible) for an urgent The time and place at which a court or tribunal hears the parties argue their case and makes a decision. at VCAT. The tenant should ask VCAT for an order restraining the landlord from further illegal actions, and an order under section 472 that requires the landlord to allow the tenant back onto the premises.
Such conduct may amount to a repudiation of the agreement, and the tenant may seek to recover their goods and apply for compensation for the tenancy being unlawfully terminated. This is best discussed with VCAT or a legal advisor.
In the event of illegal eviction, the tenant should lodge a complaint with CAV or the police and ask for the landlord to be prosecuted for a breach of section 229. The tenant can also make a compensation claim against the landlord for any loss or damage caused by the illegal eviction. The tenant should be advised to keep receipts and details of any expenditure caused by the illegal eviction (such as the cost of alternative accommodation).
If a person is not complying with a restraining order, evidence of their non-compliance should be acquired, and legal advice sought immediately (see Chapter 2.4: Legal services that can help).