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Checking Notices to Vacate

Last updated: 29 Mar 2021

What is a notice to vacate?

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.

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.

When is a notice to vacate valid/invalid?

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:

  1. is in the relevant prescribed form (see Residential Tenancies Regulations 2021 (Vic) (Regulations) reg 37, Form 6);
  2. is addressed to the renter;
  3. is signed by the person giving the notice or by that person’s agent;
  4. specifies the reason or reasons for giving the notice;
  5. for notices to vacate issued under certain provisions (ss 91ZW, 91ZX, 91ZY, 91ZZ, 91ZZA, 91ZZB and 91ZZC), is accompanied by documentary evidence supporting the reason for the notice to vacate (see 5 below); and
  6.  specifies the termination date which is the date by which compliance with the notice is required.

The notice must also provide notice in accordance with the applicable provision. (see table of notice periods below).

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 in the table below.

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:

  1. for notices issued under s 91ZX to 91ZZE in relation to a fixed term residential rental agreement:
    1. the residential rental agreement specifies that the agreement can be terminated by giving notice (other than for breach) and the notice to vacate does not comply with the requirements of that agreement term; or
    2. in any other case, the notice specifies a date that is earlier than the end of the fixed term.
  2. for notices issued under s 91ZX to 91ZZE, the giving of the notice would constitute direct discrimination within the meaning of the Equal Opportunity Act 2010 (Vic).
  3. for notices issued under s 91ZK, the notice was given in response to the exercise, or proposed exercise, by the renter of a right under the RTA.
  4. for notices issued under s 91ZZD, the notice was given in response to –
    1. the exercise, or proposed exercise, by the renter of a right under the RTA; or
    2. the renter making a report under s 72AA.

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.

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 (s 498ZH(6)).

 

Challenging a notice to vacate

Issues with the validity of a notice to vacate can be raised in defence to a residential rental provider’s application to the Tribunal for a possession order. The Tribunal will require satisfactory proof from the residential rental provider of the validity of the basis for issuing the notice to vacate to make possession order.

It is also possible to make a pre-emptive challenge to notices to vacate issued under ss 91ZX to 91ZZC (s 91ZZS). This must be done on or before the hearing of an application for a possession order, and within 30 days of the notice being given (s 91ZZS(2)).

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

  • insufficient detail (see above);
  • invalid service: Section 506(3) of the Act provides that Notices to Vacate 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 notice to vacate issued by a landlord under the former section 261 of the Act, which is broadly equivalent to section 91ZZD, had no effect because it was retaliatory. The Tribunal found that the notice was given in retaliation to the tenants exercising their rights under the RTA in relation to a faulty air-conditioning unit.

Retaliation is available to challenge NTVs issued under sections 91ZK, 91ZZD, and 91ZZDA. Is also available as a defence at a possession order hearing.

A renter may also challenge notice to vacate issued under certain sections (ss 91ZI, 91ZJ, 91ZK, 91ZO, 91ZP, 91ZQ an 91ZR) if the conduct that forms the basis of the notice to vacate was caused by the perpetrator of family or personal violence (s 91ZZU). See Family violence provisions for more information.

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)).

If a notice to vacate is successfully challenged and found to be invalid, it cannot be mentioned on a residential tenancy database (s 439F(6)).

Rooming house residents and caravan park residents can pre-emptively challenge notices to vacate under s 142ZX and s 206AZM respectively.

Types of notices

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 the table below that collects the reasons a notice to vacate 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.

The reasons for issuing a notice to vacate can be divided into the following broad categories:

Notices to vacate due to the behaviour of the renter

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:

  • causes damage to the rental property (s 91ZI);
  • endangers the safety of others (s 91ZJ);
  • threatens or intimidates others (s 91ZK);
  • successively breaches the duty provisions in the RTA (s 91ZP);
  • uses the premises for illegal purposes (s 91ZG); or
  • fails to pay rent (s 91ZM).

Notices to vacate where the residential rental provider is the Director of Housing or a public statutory authority

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).

Where there is a premise fault, a necessary repair or required demolition

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, as specified in Reasons for Notice to Vacate table in order to be permitted to provide a notice to vacate to a renter.

Where the residential rental provider elects to change the nature of the property

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). In order to do so, the residential rental provider must meet several conditions, as specified in the table below.

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 given by someone other than the residential rental provider

Notices to vacate may also be given by:

  • the owner of the property where the person who rented the premises is not the owner (s 91ZZJ);
  • the mortgagee (s 911ZZK); or
  • by Tribunal order under certain sections of the Rooming House Operators Act 2016 (Vic) (s 91ZZL).

Other reasons

There are several other reasons a notice to vacate may be given, including where:

  • the premises are required for public purposes (s 91ZZC);
  • where a fixed term residential rental agreement of not more than 5 years ends (s 91ZZD);
  • where a fixed term residential rental agreement of more than 5 years ends (s 91ZZDA); or
  • where there is a refusal of licence under Rooming House Operators Act 2016 (Vic) (s 91ZZM).

Documentary evidence

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.

The documentary evidence requirements are new conditions under s 91ZZO(e) and as such, there is no case commentary on these matters.

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—

  • in the Government Gazette; and
  • on the CAV website.

If documentary evidence in the prescribed form is not provided the notice to vacate will be invalid.

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