How is a rental agreement terminated?
A residential rental agreement can only be terminated in a way set out in the Residential Tenancies Act 1997 (Vic) (‘RT Act’) (s 91B). It is an offence for a rental provider (or a person acting on their behalf) to try, require, compel or attempt to compel a renter to vacate a premises (s 91P RT Act).
If a rental provider gives a valid Notice to Vacate or the renter gives a valid Notice of Intention to Vacate, the tenancy agreement ends when:
- the renter vacates the premises and returns the keys; or
- the rental provider obtains a possession order from VCAT and the renter vacates; or
- a warrant of possession is executed.
An illegal eviction occurs where a renter has been compelled to leave their rental premises. Even when the renter has been given a possession order by VCAT, only the police can validly evict a renter.
For a lawful eviction, the rental provider must obtain a warrant of possession from the principal registrar of VCAT. The warrant of possession is then executed by the police, the locks changed, and the renter evicted. The rental provider may or may not be present.
None of this can occur unless the rental provider has issued a Notice to Vacate and obtained a possession order. All renters are given a reasonable opportunity to attend VCAT hearings to challenge possession orders. An eviction that occurs contrary to the RT Act is not a valid termination of the rental agreement.
It is an offence for a rental provider or their agent to require or compel a renter to vacate their rented premises except in accordance with the RT Act (s 91P(1)). It is also an offence for a rental provider or their agent to obtain, or attempt to obtain, possession of the rented premises by entering the premises, whether the entry is peaceable or not (s 91P(2) RT Act). However, it is a defence to entering a premises if the rental provider can show they had reasonable grounds to believe that the renter had abandoned the premises (s 91P(2)).
If a rental provider threatens a renter, or illegally evicts a renter, the renter should urgently apply to VCAT under sections 452 and 472 of the RT Act for a restraining order. The renter needs to show their rental agreement and evidence of the threat.
It is strongly recommended in such circumstances that the renter take photos of their personal belongings, rental agreement, rent receipts and other documents to support the existence of their rental agreement and the goods inside the premises at the time of a possible illegal eviction. It is good practice for the renter to email these to themselves, for accessibility and safe keeping.
If a rental provider has threatened violence, a renter may also have grounds for obtaining an intervention order from the Magistrates’ Court.
If a rental provider attempts to illegally evict a renter, the renter should call the police. The police should stop the rental provider from evicting the renter; however, police officers are often reluctant to act unless the renter has a restraining or intervention order against the rental provider. Using a phone to record any incidents or unlawful conduct may be beneficial.
If a renter has been illegally evicted, they should apply immediately (in person if possible) for an urgent hearing at VCAT. The renter should ask VCAT for an order restraining the rental provider from further illegal actions, and an order under section 472 of the RT Act that requires the rental provider to allow the renter back onto the premises.
Such conduct may amount to a repudiation of the rental agreement, and the renter may seek to recover their goods and apply for compensation for the rental agreement being unlawfully terminated. It is recommended that renters in such situations seek legal advice.
In the event of an illegal eviction, the renter should lodge a complaint with CAV or the police and ask for the rental provider to be prosecuted for a breach of section 91P of the RT Act. The renter can also make a compensation claim against the rental provider for any loss or damage caused by the illegal eviction. The renter should keep receipts and details of any expenditure caused by the illegal eviction (e.g. 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 (s 480 RT Act; s 122 VCAT Act).