A notice to vacate is the initial step in the eviction process; it is a notice of the residential rental provider’s decision to evict the renter. It is important to note that this a notice to vacate is not final and the renter still has rights to challenge the reasons for the notice, its form or the way the notice was provided. For details on the eviction process see Rental Provider Ends the Rental Agreement.
This page provides information on the formal requirements for a notice to vacate, how to challenge a notice to vacate, the reasons a notice to vacate may be given, and what the requirement for documentary evidence may involve.
Notices to vacate should be closely scrutinised to ensure their validity and compliance with the Residential Tenancies Act 1997 (Vic) (RTA) and Residential Tenancies Regulations 2019 (Vic).
Under s 91ZZO of the RTA, a notice to vacate is not valid unless it:
The notice must also provide notice in accordance with the applicable provision see table of notice periods).
A notice to vacate will likely be invalid if it does not provide a sufficiently detailed reason for the notice. The notice must identify – with a sufficient degree of particularity and precision – the facts said to constitute the reason for the notice. It cannot merely repeat the words of the RTA. This requirement was considered in the decision of Smith v Director of Housing [2005] VSC 46 (Smith). The reasons that can be relied on are listed in detail on Overview of Notices to Vacate.
If each requirement is not complied with, the notice will be invalid. As emphasised in Smith with respect to the prescribed requirements of the notice to vacate under the former RTA provisions:
‘These conditions are conditions precedent to the validity of the notice. If they are not all present the notice is invalid. In the absence of some saving provision in the Act a notice which is deficient in one or other of the requirements referred to is void and of no effect.’
Section 91ZZI of the RTA also provides for certain circumstances where a notice to vacate will have no effect. Those circumstances include where:
Finally, it is important to ensure that service of the notice to vacate complies with the service requirements in s 506(3) of the RTA, particularly having regard to the minimum notice period.
If the notice to vacate is invalid the client may wish to consider whether to challenge it on or before the possession order hearing. For information on challenging notices to vacate please see Challenging Notices to Vacate.
Equivalent requirements apply to the forms of notices to vacate for rooming house residents (s 142ZT), caravan park residents (s 206AZI) and Part 4A site tenants (s 207ZK) (see Forms 11, 16 and 22 of the Regulations respectively for the form of notice to vacate required). More extensive requirements apply to notices to vacate issued to residents of specialist disability accommodation.
Notices to vacate can be given by the residential rental provider for a number of reasons. These are listed in ss 91ZI to 91ZZM of the RTA. See Overview of Notices to Vacate for the different reasons that NTVs can be given. Equivalent provisions apply to rooming house residents (RTA Part 3, Division 10, Subdivision 4), caravan park residents (RTA Part 4, Division 9, Subdivision 4) and Part 4A site tenants (RTA Part 4A, Division 11, Subdivision 5).
Some of these sections provide for special requirements that the notices must comply with. Where these conditions exist, they have been noted in the table.
There is a notice period stipulated for each reason for issuing a notice to vacate. The notice period should be calculated as being the day after the minimum notice period expires, plus any additional time taken for service. For information on the time required for service via post, see VCAT’s page on service.
The reasons for issuing a notice to vacate can be divided into the following broad categories:
In this category, references to the behaviour of the renter also includes the behaviour of the renter’s visitors. References to behaviour includes actions or omissions.
Reasons to issue a notice to vacate on the basis of the renter’s behaviour include where the renter:
The Director of Housing (DOH) and public statutory authorities have additional powers to issue notices to vacate.
The DOH can issue a notice to vacate where the renter has engaged in certain drug-related conduct (s 91ZR) or committed a prescribed indictable offence (s 91ZS) on the rented premises or in a common area. The DOH can also issue a notice to vacate where someone has refused to leave transitional housing for alternative housing (s 91ZZF).
Public statutory authorities can also issue a notice to vacate where renters gave false statements about their eligibility to rent the relevant rental premises (s 91ZU) or are no longer eligible for the housing (s 91ZZE).
This category encompasses the notices to vacate that have been provided on the basis of the condition of the premises. Specifically, if the premise is so faulty that it is unfit for human habitation (s 91ZL), requires repair (s 91ZX) or demolition (s 91ZY).
In each of these instances, there are several conditions the residential rental provider must meet in order to be permitted to provide a notice to vacate to a renter. In defending a NTV given on the basis that a property is unfit for human habitation, you should consider the reasonable and proportionate test and whether it would be reasonable and proportionate for the Tribunal to make an order for repairs rather than a possession order.
This refers to instances where the residential rental provider elects to change the nature of the rented premises to a place of residence (s 91ZW) or business (s 91ZZ).
Other reasons include where the premises are to be occupied by the residential rental provider’s family (s 91ZZA), or where the premises are to be sold (s 91ZZB).
Notices to vacate may also be given by:
There are several other reasons a notice to vacate may be given, including where:
Section 91ZZO(e), includes new documentary evidence requirements that a notice to vacate issued under s 91ZW to 91ZZC must be accompanied by documentary evidence supporting the reason for giving the notice to be valid.
Under section 486A, the Director of Consumer Affairs Victoria (CAV), from time to time, may approve documentary evidence which supports the reason for giving a notice to vacate under a s 91ZZO(e).
We recommend you check the up-to date list of approved documentary evidence which the Director publishes—
If documentary evidence in the prescribed form is not provided the notice to vacate will be invalid.
The documentary evidence requirements are new conditions under s 91ZZO(e) and as such, there is limited case commentary on these matters. There have been differing interpretations by Tribunal members about the extent to which documentary evidence can be redacted, however redaction of key details is likely to affect the validity of the notice (see Homes Victoria v Kelly [2023] VCAT 807).
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