In this section
If your client has been issued with an NTV, you should consider whether it can be challenged.
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 pre-emptive challenges to NTVs which require any challenge to be brought usually within 30 days or at the possession order hearing. Some NTVs can only be challenged at possession order hearings.
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.
An NTV can be pre-emptively challenged if given under the following provisions – s 91ZZS
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.
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;
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.
A NTV could be challenged, for example, on the basis of:
Challenging a NTV on the basis of retaliation pursuant to s 91ZZD is also available for NTVs issued under the following provisions:
Note that s 91ZZI(5) provides for time periods of 28 and 21 days for challenging NTVs given under s 91DDZ and s 91ZZDA.
If the renter does not challenge the NTV within 30 days of receipt of the notice, they can still challenge its validity at the possession order hearing (s 91ZZR). In Taylor v Rizvanovic (Residential Tenancies)  VCAT 484 it was 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.
Some additional timing restrictions apply to lodging challenges where the notice to vacate was issued on the basis of an expiry of a fixed-term lease (s 91ZZI(5)).
The periods of time for challenging NTVs can be extended by the Tribunal on application by a party or its own initiative (s 126 of Victorian Civil and Administrative Tribunal Act 1998).
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:
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 won’t be the best option as waiting to challenge a NTV at a possession order hearing will often maximise a client’s time in a property.
A renter that is unsuccessful in pre-emptively challenging an NTV cannot bring a further application to challenge it’s 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.
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.
When advising a client who has received a NTV, you should consider the following questions:
In determining if a notice to vacate is able to form the basis of your client’s eviction, you should further consider:
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