28-day Notice of Intention to Vacate
If the The agreement between a landlord and a tenant for the rental of a property. agreement is periodic (see ‘Fixed-term and periodic agreements’, above) and the tenant wants to leave, the tenant must give the landlord at least 28days’ notice that they intend to vacate the premises (s 235). The notice must be in writing (s 318(1)) and must be signed (s 318(3)). This notice is called a Notice of Intention to Vacate. The tenant can give this notice in the form of a letter, or on the Notice to Landlord form, which can be downloaded from the CAV website.
If the A document that sets out an agreement between a landlord and a tenant for the renting out of property, or for the use of other personal property such as a car. is for a fixed term the tenant may only give a Legally binding or effective. Notice of Intention to Vacate that expires after the last day of the fixed term.
The notice should be delivered personally or sent by mail (registered mail is preferable) (s 506). The tenant must ensure that the landlord receives 28 days clear notice (i.e. if the notice is sent by mail, the tenant should allow at least two extra days for delivery).
Alternatively, it is possible for a Notice of Intention to Vacate be served via email providing it is compliant with the A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation., and that the landlord or 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. has given To agree to something being done, to approve an action or arrangement. See also informed consent. to be served via email within the meaning of the Electronic Transactions (Victoria) Act 2000 (Vic).
Premises unfit for human habitation
A tenant can serve a landlord with an immediate Notice of Intention to Vacate if the premises are unfit for human habitation or have been destroyed totally, or to such an extent as to be rendered unsafe. This can be done prior to the tenant entering into (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. or during the tenancy (ss 226, 238). This notice can be served regardless of whether the tenancy agreement is fixed term or periodic.
Tenants should be cautious about serving a notice on these grounds. If the landlord disputes the claim that the premises are unfit for human habitation, the tenant A document that sets out what a person wants to happen to their money and other property after they die. have to establish a proper basis for serving this notice at VCAT. For this reason, it is preferable to include the statement and Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. specifically stating why the premises are unfit for habitation in the Notice of Intention to Vacate itself.
Evidence (e.g. photographs, A person who can provide direct information based on their own knowledge about a relevant fact, and appears in court to give evidence about it. In some cases a witness may provide an affidavit or deposition setting out their evidence if they are not able to attend court. statements, reports from trades people, engineers, the local council or expert builders or surveyors) may be obtained to support the notice.
There would generally need to be serious problems for a premises to be considered unfit for human habitation.
Breaking a fixed-term lease (lease breaking)
A tenant may want to vacate the premises before the end of a fixed-term agreement. Generally (without an agreement to the contrary), if a tenant moves out before the end of a fixed-term lease, the tenant is liable to compensate the landlord for breaking the lease.
Prior to handing back the keys to the premises, tenants are strongly encouraged to seek legal advice, to determine if any other avenues available to terminate the tenancy under the RT Act.
Once the tenant has vacated the premises, the tenancy agreement has terminated and they are no longer liable to pay rent. However, the landlord is entitled to make a claim for compensation for any period of lost rental that has resulted from the tenant moving out before the end of the fixed term.
Generally, tenants are advised to only pay rent up until the date the keys are returned. From this point, the tenant will remain liable for reasonable compensation at an amount similar to rent. Generally, if the rent continues to be paid, there is less incentive for the landlord to locate new tenants.
After returning the keys, tenants may attempt to recover their (1) An undertaking by someone to do or not do something, especially a good behaviour bond, which can be part of a sentence given by a court. (2) A tenant’s payment of money to a landlord at the start of a tenancy. The bond is held in case there is any damage to the property or the tenant fails to pay rent.. Such bond claims may be adjourned depending on the circumstances. Tenants should monitor the landlord’s efforts to re-let the premises. Once new tenants have been found, the landlord can apply to VCAT for compensation. The landlord has to justify the reasonableness of the amount compensation claimed.
What can the landlord claim?
If the tenant breaks a fixed-term tenancy agreement, the landlord can claim compensation (s 210 RT Act) for any loss or damage that results from the tenant ending their lease early. Such The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. may include:
- a re-letting fee (calculated on pro-rata basis);
- advertising costs (calculated on pro-rata basis);
- rent for a reasonable time until new tenants move in, or until the end of the fixed-term lease – whichever is less.
Tenants are not liable for advertising and reletting fees upon breaking a fixed-term lease that is a renewal of the original fixed term (see Craig v Mitchell (Residential Tenancies)  VCAT597 (27 April 2015)).
What constitutes reasonable costs will be determined by VCAT, which will consider factors such as:
- the amount of notice, if any, given to the landlord by the tenant;
- whether the tenant or the landlord advertised the premises for a new tenant;
- the length of time left to run on the fixed term;
- any action taken by the landlord or their agent to find new tenants; and
- the reasonableness or otherwise of any refusal by the landlord of prospective new tenants.
Costs such as re-letting fees may not apply for private landlords. Something of value, such as money, given by one person to another person as part of a contract. should also be given with respect to lease breaking of renewed leases, and the losses a landlord might have ordinarily had to bear should a new fixed-term agreement not be entered into. This is a matter VCAT may wish to consider.
Landlord should minimise loss
The landlord is not automatically entitled to lease breaking costs. Generally, tenants are advised not to sign any form that requires acknowledgement of Legal responsibility, enforced by civil or criminal courts. of the above lease breaking fees. Any terms in the tenancy agreement itself, or subsequently signed regarding lease breaking may not necessarily be enforceable (s 27), as the actual loss must still be established and evidence to VCAT.
In lieu of signing any acknowledgement regarding lease breaking liabilities, tenants should affirm, on the date they gave notice of intention to vacate, that they will not pay any further rent until determined by VCAT, and that the landlord has an obligation to mitigate loss By authority of, or in accordance with, or as directed by, some court order or legislation. section 211(e) of the RT Act. Parties may also wish to refer to the Tenancy Database information in this chapter.
The landlord has a duty to keep their loss to a minimum (s 211(e)). If the landlord does anything to increase the costs of the lease break (e.g. putting up the rent so that it is more difficult to find replacement tenants), then the tenant should argue that their liabilities should be substantially reduced. Tenant should attempt to minimise losses.
The tenant should check that the landlord or agent is prompt in advertising the property, and that they do not advertise it at a higher rental than the tenant is paying. They should also keep a record of how many prospective tenants inspect the property.
The tenant should also be as co-operative as possible with the landlord or agent’s attempts to find new tenants. For example, undertaking additional advertising and co-operating with inspections by prospective tenants will help to minimise the landlord’s loss for which the tenant may be liable.
The tenant should also apply to have their bond returned 10 business days after the The end of something. Contracts terminate when the parties have done what they agreed. A contract can also be terminated without being completed, for example if one party breaks the contract, or it is impossible to carry out. of their tenancy. This is to avoid the landlord claiming lease-breaking costs from the bond (see ‘Recovering bond money’, below).
Tenants may also claim compensation where the landlord has, by the act or omission, caused a tenancy to terminate during the fixed term. Such examples include A restriction attached to ownership of property to secure the repayment of money borrowed. The mortgage stops the owner of the property selling it until they have paid off the debt. Failure to do something that is legally required. For example, a person who fails to make a payment on their car is in default on the loan; if they continue to be in default the creditor may issue a default summons to take the debtor to court. , or letting of premises that are not zoned for residential use, and being required to leave (see ‘Compensation claims’, below).
Breaking a Form 2 long-term lease
Tenants who want to get out of a long-term lease should apply for a reduction of the fixed term (see below), rather than breaking the lease.
Clause 18 of Form 2 provides that a landlord is entitled to ask for one month’s rent for every full year remaining on the lease. This is capped at a maximum of six years (i.e. six month’s rent).
Application for reduction of a fixed-term agreement
A landlord or a tenant under a fixed-term tenancy agreement may apply to VCAT for an order reducing the term of the agreement, and making any other variations to the agreement that are necessary as a result of that reduction (s 234). Applications are made using thegeneral application formon VCAT’s website (www.vcat.vic.gov.au).
The tenant may apply under section 234 only while they remain in possession of the premises. Once the tenant has given up possession of the premises, the tenancy agreement is terminated and therefore cannot be varied or reduced. Thus, it is critical – if a tenant intends on making such an application – that they hold onto the keys until the The time and place at which a court or tribunal hears the parties argue their case and makes a decision. is determined. If the reduction is granted, they should then give the keys back on the day that the tenancy is to end, according to the order.
VCAT may only reduce the term of an agreement if it is satisfied that:
- there has been an unforeseen change in the applicant’s circumstances; and
- the applicant would suffer severe hardship if the term was not reduced; and
- the applicant’s hardship would be greater than the hardship suffered by the (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. if the term was reduced.
One tenant can apply to VCAT without the support of any remaining co-tenants. VCAT may order that one of several co-tenants is removed from the tenancy agreement, or it may shorten the fixed-term agreement for all of the tenants.
VCAT may determine what compensation, if any, should be paid by the applicant due to the reduction of the fixed term (s 234(3)). In some cases, VCAT may (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. compensation equivalent to the tenant’s liability for lease-breaking costs. However, in many cases, the amount of compensation is relatively low compared to a standard lease break.
In the case of a section 234 application, a final A court order that prohibits a person harming or harassing another person. See also family violence intervention order;personal safety intervention order. or an interim intervention order is not necessary for the application to be successful. However, VCAT will need to be convinced of the surrounding circumstances relating to the hardship. Consideration should be given with respect to examination and evidence that may be necessary to justify the application.
Generally, a section 234 application will not be dismissed unless there is unsatisfactory hardship or the keys have been returned, but the amount of compensation may be scaled to reflect the hardship imposed on each A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses.. If a section 234 application is dismissed, the tenancy is not terminated, and the tenant will need to consider their alternatives (e.g. lease breaking or Legal transfer of some right to use property. For example, putting a lease over farmland into another person’s name, or giving another person copyright in a song you have written.).
Family violence applications to VCAT to terminate or create new tenancies
Important 2020 Residential Tenancies Act A change made to a legal document or Act of parliament.
On 25 April 2020, sections 233A–233D of the RT Act were amended and now allow applications to be made to either terminate an existing tenancy, or to terminate an existing tenancy and create a new tenancy in the name of the applicant (i.e. the person affected by family violence) (s 233A(1)) for reasons of family violence. These amendments have bundled together the RT Act’s family violence provisions to allow both the creation and termination of a tenancy under sections 233A–233D.
Family violence applications to terminate or create tenancies can be made by tenants or by any other person who lives at the premises as their principle place of residence (s 233A(2)).
Fixed-term agreements in rooming houses should be considered in relation to sections 233A–233D.
It is preferable to obtain an order under these provisions to prevent lease breaking claims. An order also allows for apportioning of any liabilities that may have occurred due to the family violence (s 233C).
If a new tenancy is created, the lease and rent must be on the same terms and conditions as the existing tenancy agreement (s 233B(4)). If the existing tenancy is for a fixed term, the created tenancy cannot be for a period longer than the existing fixed term (but it may be shorter by order of VCAT if requested by the applicant). VCAT may also make orders in relation to access to collecting goods and restricting any listings on tenancy databases (s 233B(7)).
In making the order, VCAT may determine the parties’ liabilities under the existing tenancy agreement, including matters pertaining to the bond, liabilities for damage, outstanding utility charges, and liability in relation to outstanding rent (s 233C).
Family violence applications and intervention orders
Previously, tenants seeking to end a fixed-term tenancy because of family violence had to have a final intervention order if they wanted to create a new tenancy in their name (and exclude the A person who commits a crime. See also offender. of family violence from the lease). Since the April 2020 amendments came into force, a final intervention order is not required for applications to create new tenancies.
Instead, proof is required that the applicant is being subject to family violence that is being committed by a person who is a party to the tenancy agreement (s 233A(1)). In relation to considering if family violence has occurred for the purposes of sections 233A–233D, VCAT must consider the evidence (s 233B(3)).
If the perpetrator is not a party to the tenancy agreement, then an intervention order will exclude them from the premises. If the tenant is seeking to vacate the premises, they may need to apply for a reduction of the fixed-term tenancy (s 234).
Listing time for family violence applications
Most importantly, these applications must now be listed by VCAT within three business days (s 233A(7)). This is much faster than the typical two- to three-week wait for an application to be listed for an ordinary reduction of a fixed-term tenancy.
Keeping the keys
If a tenant is seeking to end a tenancy under these family violence provisions, or create a new tenancy, they must retain the keys until an order is made. Generally, VCAT cannot make an order if the keys have been returned.
What the application must establish
If the applicant is seeking to create a new tenancy (effectively removing the respondent tenant), they must establish the following (s 233B(2)):
- they could reasonably be expected to comply with a tenant’s duties;
- they or their children would be likely to suffer severe hardship if they were compelled to leave the premises;
- their hardship would be greater than the landlord’s hardship if VCAT made the order;
- the order sought is reasonable, given the length of the exclusion under the final A court order made to protect a family member from violence, intimidation or harassment by restraining a person from harmful or annoying conduct towards that family member. See also intervention order. and the length of the existing tenancy agreement; and
- the order sought is reasonable, given the interests of any other tenants (other than the excluded tenant) under the existing tenancy agreement.
A notable change under the new Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. is that a landlord is not entitled to any compensation as a result of the early termination of an agreement made under section 233B(1) (s 233C(2)).
Family violence applications and personal safety intervention orders
Section 233A-D also applies to personal safety intervention orders made under the A court order made to protect a person from violence, intimidation or harassment by someone who is not a family member. See also intervention order; family violence intervention order. Act 2010 (Vic). While the process and requirements are similar, some of the evidentiary requirements when applying to VCAT for a termination or creation of a lease are different and specific legal advice should be sought.
Support for family violence applicants at VCAT
VCAT has a dedicated family violence support worker and a dedicated Koori engagement team. These are important supports to help family violence matters run as smoothly as possible. Consideration should also be given to the use of remote witness facilities (see also s 233D) and to other Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. or support arrangements.
For more information about terminating or varying a lease due to family violence, see Tenants Victoria’s Family Violence Kit (www.tenantsvic.org.au/family-violence-protection).
Application to VCAT to create a tenancy agreement
Application to VCAT to create a tenancy agreement
‘Creation applications’ (to create a new tenancy) generally arise in two circumstances:
- if there is someone living in the premises as their primary place of residence, who is not a tenant, and the all the named tenants disappear, abscond or are deceased; or
- if, as a result of a relational breakdown, one party obtains final intervention order with a clause excluding a named tenant.
A person who lives in rented premises as their principal place of residence and who is not a tenant at those premises may apply to VCAT for an order that the landlord enter into tenancy agreement with them (s 232).
The person must satisfy VCAT that:
- the applicant could reasonably be expected to comply with tenant’s duties under the RT Act; and
- the applicant would suffer severe hardship if compelled to leave the premises; and
- the applicant’s hardship would be greater than the landlord’s (if the order were made).
See also LPB v Director of Housing (Residential Tenancies)  VCAT684 (4 May 2018).
Specialist disability accommodation: Termination of residency agreements
A SDA residency agreement must be terminated in accordance with the RT Act (s 498ZW). A SDA resident may give notice of their intention to vacate at any time (s 498ZZA). The notice must be in writing and must specify the date the resident intends to vacate the premises.
Once the notice is given by the SDA resident or their Someone who is legally responsible for taking care of another person or their property. or (1) (wills) Someone who takes legal responsibility for the possessions of a person who has died without making a will, or who is still alive but cannot manage their own possessions. For example, an administrator may be appointed to manage the money, house or other possessions of a person who has a severe mental disability. (2) (companies) A manager appointed by the directors of a company that is in financial difficulty. This may give creditors a better chance of getting their money back because the company can keep trading under supervised management instead of being wound up., the SDA provider must notify the CEO of NDIA and the Public Advocate. The resident’s guardian or administrator must also be notified if they did not submit the n