The RAHU Guide To Evictions (Victoria edition)
Termination & Eviction
Eviction is a formal process and does take time. This document should be a quick reference for the process. It primarily covers legal evictions.
Eviction is a legal process that is usually weeks long. Private tenancy renters have time to prepare for and defend against eviction. Renters in rooming houses have less time to organise against eviction. RAHU can discuss with you possible avenues against eviction.
Notice to Vacate (NTV) – Notices To Vacate are not eviction notices!
A Notice to Vacate (NTV) is a document sent to the renter/s by the landlord or agent. This notice asks you to vacate and gives a period by which the landlord would like this to happen. This notice does not constitute eviction. It is the first formal step in a process.
NTVs contain 12 fields that cover the renters’ and landlords’ details, the date at which the landlord/REA would like you to leave by (“termination date”), the reason for the NTV, how the NTV was delivered and a signature.
All of these details must be correct; otherwise, the NTV does not apply.
- “9. Reason for Notice to Vacate” Landlords must reference a section of the Residential Tenancies Act (1997). This must be applicable to your situation. You can search for the Act and check the section at austlii.edu.au.
- Challenging an NTV happens formally at VCAT.
- Informally, it can be done anytime. If you are sure your NTV is incorrect, wait until the final day of the notice period and email your landlord/REA stating the notice is invalid. Don’t tell them why (that’s their job). RAHU can send and CC you into this email.
- If you believe the NTV was issued in retaliation for exercising your rights, such as asking for repairs or issuing a breach notice, VCAT will hear evidence.
- After the notice period expires, there will be a VCAT hearing for a Possession Order (see below). It is vital that you attend this hearing.
In some cases, a landlord might ask VCAT to terminate a tenancy. There is no NTV issued for this; VCAT is asked to make a decision. An example of when this might happen is during the COVID-19 eviction moratorium when NTVs were declared invalid, and landlords would apply to the Tribunal to have a tenancy terminated for various reasons, like rent arrears.
After the period of an NTV has elapsed, the landlord can apply for VCAT to grant a possession order. The landlord uses this order to purchase a warrant of possession.
At the hearing for the possession order, VCAT will decide whether it is reasonable and proportionate to end the tenancy. If you are in hardship, VCAT will consider this and may grant an additional tenancy period.
Warrant of Possession
The landlord purchases this from the Tribunal for $174.90. They then have 30 days to deliver it to the local police station, which has 14 days to carry out the eviction.
Only the police carrying out a warrant of possession can forcibly evict you. Not your landlord, not some thugs, not a threatening email or official-looking letter. Only official police officers.
Victorian Civil & Administrative Tribunal (VCAT)
VCAT is not a court. It lacks any power to enforce its decisions. The important thing to note about VCAT is that you lose if you don’t show up. ATTEND YOUR HEARING. RAHU can help you prepare for VCAT and give you some pointers about the process. If you don’t show up, you lose.
Decisions are made on the day by a Member. The inclinations of the Members play a role in the decisions made.
Being prepared is essential. Evidence must be submitted in the days before the hearing, which helps provide a cover letter. There are guides for this process at vcat.vic.gov.au. If you need help with this, get in touch: [email protected]. We can help with evidence organisation and submission and put you in touch with a Tenancy Assistance and Advocacy Program (TAAP) provider to represent you at your hearing.
Notices To Vacate – What reasons can be provided?
- From March 29th, 2021, the Residential Tenancies Act Amendments (RTAA) will somewhat limit the reasons a landlord can end a tenancy.
- There are no longer “No Grounds” NTVs. All Notices To Vacate must be made for a specific reason.
- There are immediate NTVs for violence toward or “endangerment” of the landlord, their agents, contractors, neighbours, etc. in private tenancies and rooming houses.
- No consent to pets
- Serious threats or intimidation
- Damages: serious and reckless
- Damage to the property (ie. breaking a smoke alarm)
- Danger: A notice cannot be given under this provision if a notice to leave has been provided for the Act or omission under the ‘violence on certain premises’
- Once the NTV period has elapsed the LL/REA may apply to VCAT for a termination order. This ends the tenancy on a given date but cannot compel the renter to leave. If the renter still remains in the property the LL/REA can apply for a Possession Order. In some circumstances the LL can apply for both termination and a possession order at the same hearing.
Don’t forget Renters’ rights are only as strong as our willingness to enforce them. Talking to your housemates, neighbours, friends and other comrades about your plans, concerns, and successes helps us all grow stronger.
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