Challenging Notices to Vacate

Issues with validity of NTVs 

If your client has been issued with an NTV, you should consider whether it can be challenged and whether it is strategic to do so. 

Challenges to some NTVs can be made pre-emptively (i.e. before a possession order hearing) or at a possession order hearing. There are time limits that apply to some pre-emptive challenges to NTVs which require any challenge to be brought usually within 30 days.  

For a summary of which NTVs can be challenged, refer to the Overview of Notices to Vacate 

This page will provide information on what NTVs can be challenged pre-emptively, timing for pre-emptively challenging NTVs, grounds for challenging NTVs and strategies to consider. 

What NTVs can be pre-emptively challenged 

An NTV can be pre-emptively challenged if given under the following provisions – s 91ZZS

1. Repairs – s 91ZX; 
2. Demolition – s 91ZY; 
3. Premises to be used for business – s 91ZZ; 
4. Premises to be occupied by residential rental provider or provider’s family – s 91ZZA; 
5. Premises to be sold – s 91ZZB; or 
6. Premises to be required for public purposes – s 91ZZC. 

The Tribunal has power to determine the validity of an NTV for an application bought pursuant to s91ZZS (s 91ZZT(1). 

If a notice to vacate is not pre-emptively challenged within the 30 days provided for under s 91ZZS, it can be challenged at the possession order hearing. 

Rooming house residents can pre-emptively challenge notices to vacate given under s 142ZJ (sale of rooming house) or s 142ZK (repairs or demolition) pursuant to s 142ZX. Caravan park residents can pre-emptively challenge a notice to vacate given under s 206AZ (sale of caravan) pursuant to s 206AZM. Both provisions require the pre-emptive challenge to be made within 30 days but allow for a challenge to the notice to vacate at a possession order hearing. 

Pre-emptive challenge on grounds of family or personal violence 

The following NTVs can be pre-emptively challenged on the grounds that the relevant act or breach for which the notice was given was caused by the act of a person who has subjected the applicant to family violence or personal violence – s  91ZZU; 

1. Damage – s 91ZI; 
2. Danger – s 91ZJ ; 
3. Threats and intimidation – s 91ZK; 
4. Failure to comply with Tribunal order – s 91ZO; 
5. Successive breaches by renter – s 91ZP; 
6. Use of premises for illegal purpose – s 91ZQ; or 
7. Drug-related conduct in public housing – s 91ZR. 

In this context “family violence’ has the same meaning as in the s 5 Family Violence Protection Act 2008. Personal violence means prohibited behaviour or stalking within the meaning of the Personal Safety Intervention Orders Act 2010. See Family Violence Provisions for more information.

To challenge a notice to vacate under s 91ZZU, the renter should use this VCAT application form.

Similar protections apply for rooming house residents (s 142ZZ), caravan park residents (206AZO), and residents of site agreements (s 207ZN).

Other grounds for challenging NTVs 

A NTV could be challenged, for example, on the basis of:  

• insufficient detail (See section 2 of Checking Notices to Vacate)
• invalid service: Section 506(3) of the Act provides that a NTV must be served personally or sent by registered mail;  
• retaliation: see Mitchell v Aa Integrity Holdings Pty Ltd (Residential Tenancies) [2019] VCAT 1306 (28 August 2019), in which VCAT held that a NTV issued by a residential rental provider under the former section 261 of the Act, which is broadly equivalent to section 91ZZD (end of fixed term agreement of not more than 5 years), had no effect because it was retaliatory. The Tribunal found that the notice was given in retaliation to the renters exercising their rights under the RTA in relation to a faulty air-conditioning unit. 

Challenging a NTV on the basis of retaliation is also available for NTVs issued under the following provisions: 

1. Threats and intimidation – s 91ZK. On this see, s 91ZZI(3). 
2. End of fixed term residential rental agreement of not more than 5 years – s 91ZZD. On this see s 91ZZI(4). 
3. End of fixed term residential rental agreement of more than 5 years – s 91ZZDA. On this see s 91ZZI(4). 

Note that s 91ZZI(5) provides for time periods of 28 and 21 days for challenging NTVs given under s 91DDZ and s 91ZZDA and the applicable time period depends on the length of the fixed term lease. 

Timing for challenging NTVs 

Time period applicable for a challenge under s 91ZZS

A renter may apply to the Tribunal on or before the hearing of an application for a possession order in relation to a NTV to challenge the validity of the NTV (s91ZZS(1)). 

If the renter wants to challenge the NTV before a possession order hearing at the Tribunal, they must apply to the Tribunal within 30 days from the date they receive the NTV (s91ZZS(2)). Otherwise the renter will have to wait until the possession order hearing to make the challenge under s 91ZZS or apply for an extension of time under s 126 of the VCAT Act to make the application prior to the possession order hearing.

If the renter does not challenge the NTV within 30 days of the receipt of the notice, where a challenge is available under s 91ZZS, the renter can still challenge it at the possession order hearing. 

In Taylor v Rizvanovic (Residential Tenancies)  [2016] VCAT 484 (which related to a similarly worded section in force at the time) the Tribunal held that the provision of time limits for pre-emptive challenge an NTV do not specifically prevent a renter from raising the issue of validity of an NTV at the time of hearing for possession order. 

Time period applicable for a challenge under s 91ZZU

Following South Port Community Housing Group Inc v Ng [2022] VCAT 614, a challenge under s 91ZZU must be made within 30 days after the notice is given. If the challenge is not made within 30 days, it is necessary to request that the Tribunal waive the 30 day requirement under s 126(2)(b) of the VCAT Act. This means that if a client wants to challenge a notice to vacate and the possession order hearing is listed more than 30 days after the date of the notice, the client will need to apply to challenge before the possession order hearing.

Other issues to note on time periods for challenging notices to vacate

The periods of time for challenging notices to vacate can be extended or waived by the Tribunal on application by a party or its own initiative (s 126 of VCAT Act).

Things to consider when challenging pre-emptively or at the possession order hearing 

A key distinction in making a pre-emptive challenge as opposed to a challenge at possession order hearing is that the onus of proof will rest with the renter (the party challenging the NTV) in a pre-emptive challenge. Where no pre-emptive application is made, the Tribunal will require satisfactory proof from the RRP of the grounds of the NTV. 

Some factors to consider in deciding whether to challenge pre-emptively or at a possession order hearing include: 

• whether the client needs more time in the property and which approach best achieves that outcome. 
• the strength of the challenge – a weak pre-emptive challenge may compromise a challenge later on at possession hearing stage. 
• whether the RRP will be able to issue a new NTV that would be valid. In considering this, you should consider whether a pre-emptive challenge would trigger the RRP to withdraw the invalid NTV and immediately issue a new one. 
• if the client wants certainty about their tenancy.  

Where an NTV has been given that is not open to pre-emptive challenge via one of the above provisions and the NTV appears invalid, the challenge will need to be made at the possession order hearing.  

For most Homeless Law clients, pre-emptive challenges may not be the best option as waiting to challenge a NTV at a possession order hearing or just before the relevant 30 day period expires under s 91ZZU will often maximise a client’s time in a property. 

What if the pre-challenge is unsuccessful? 

A renter who is unsuccessful in pre-emptively challenging an NTV cannot bring a further application to challenge its validity unless the Tribunal is satisfied that exceptional circumstances exist which justify reconsideration (s 91ZZT(2)).  

A further review avenue is available to a party under s 479, which allows the Tribunal to rescind or vary a determination if it is satisfied that there has been a breach of, or failure to comply with the RTA.  

What if the challenge is successful? 

If an NTV is determined to be invalid, whether through a pre-emptive challenge or at possession order hearing, as it is the originating document, any possession order proceedings will fall away as VCAT cannot make a decision based on an invalid NTV.  

An invalid NTV also cannot form the basis of a listing on a residential tenancy database (s 439F(6)).  See Blacklistings for further information.