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Danger

Last updated: 06 Apr 2021

Possession for danger

Under s 91ZJ of the Residential Tenancies Act 1997 (Vic) (RTA), a residential rental provider may give a renter an immediate notice to vacate if:

‘… the renter or the renter’s visitor by act or omission endangers the safety of –

  1. of neighbouring premises; or
  2. the residential rental provider or the provider’s agent; or
  3. a contractor or employee of a person referred to in paragraph (b).

The Director of Consumer Affairs Victoria has released a guideline under s 486 of the RTA which VCAT must consider in any applications related to danger. The guideline outlines what VCAT must consider when interpreting the term ‘endanger’ when considering if a notice to vacate is valid.

This guideline should be reviewed in relation to any applications for possession related to danger under sections 91ZJ (rented premises), 142ZC (rooming house accommodation), 206AR (caravan parks), 207X (residential parks (a park where a Part 4A site is rented)) or 498ZX(1)(b) (specialist disability accommodation (SDA) enrolled accommodation) of the Act.

 

A ‘danger’ notice to vacate cannot be given to the renter if a notice to leave under s 368 of the RTA has already been given in respect of the particular act or omission.

Although residential rental matters are decided on the ‘balance of probabilities’, in applications for possession based on danger, ‘any Tribunal should act with much care and caution before finding that a serious allegation … is established’, such as a finding that a renter or visitor has endangered the safety of occupiers of neighbouring premises: see Briginshaw v Briginshaw (1938) 60 CLR 336. See further ‘What evidence’ below.

Equivalent ‘danger’ notice to vacate provisions apply to rooming houses (s 142ZC), caravan parks (s 206AR) and Part 4A sites (s 207X). A separate scheme applies to specialist disability accommodation (s 498ZX(1)(b)).

For information on notices to vacate in general and options to challenge them see Checking notices to vacate.

Notices to vacate issued on the basis of danger can be challenged on the basis that 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.

Who is a visitor?

A visitor means a person on rented premises (or premises on which rented premises are situated) with the permission of the renter: s 3 RTA.

What conduct “endangers safety”?

Section 91ZJ RTA refers to acts which ‘endanger’ safety and is therefore not intended to deal with anti-social or a nuisance behaviour.

In Director of Housing v ‘M’ [2002] VCAT 456 the Tribunal considered what constitutes endangering conduct, holding that:

“Where the offending conduct is a threat against an occupier of neighbouring premises the Tribunal must consider whether there is a real likelihood of the threat being carried out. If there is only a remote or faint possibility of the harm threatened ensuing, threatening conduct by a (renter) is unlikely to come within the intended ambit of the section (s 91ZJ). It may be useful to consider whether an objective bystander would consider the (rental provider) entitled to give the notice in the circumstances (Nicolic). Although actual violence is not a pre-requisite, words of bravado will not usually constitute endangering conduct. However, assault or behaviour of a threatening manner may be sufficient (Footswilly). A useful test is to consider the allegedly endangering conduct through the eyes of the objective bystander (Nicolic). If the behaviour complained of is more accurately described as antisocial or a nuisance, it should be dealt with under section 60 of the Act (through a breach of duty notice)” Member Liden at [76].

More recently, in Seventh-Day Adventist Aged Care (Victoria) Pty Ltd v Stephenson [2020] VCAT 847 the Tribunal held that “conduct which is anti-social, offensive and upsetting is not necessarily conduct that endangers the safety of others”, noting that endangerment requires a “real risk of danger to the physical or mental health of occupiers and not some remote or faint possibility of such” (Member Campbell, at [40]).

The alleged danger must be continuing

In Director of Housing v Pavletic [2002] VSC 438, Smith J held that ‘endangers’ refers to danger in the “present tense”:

In my view, the prima facie interpretation of the phrase, ‘endangers the safety of occupiers’, is that it refers to a danger to such safety existing at the time of the notice to vacate. The drafter chose the word ‘endangers’ and if it had been intended to have a meaning other than ‘in endangering’, some other form of language would have been used, such as ‘has endangered’.”

Accordingly, the danger must be continuing at the time at which a notice to vacate for danger is given to the renter. A residential rental provider is not permitted to give a notice to vacate for danger that occurred in the past and which poses no current risk.

Practice tip

It can sometimes be difficult to determine whether someone is being ‘endangered’ at the time a notice to vacate has been given. Obviously temporal proximity or closeness in time will be relevant to determine whether the danger is ongoing, but all the facts would have to be considered.

Example:

On Monday morning 5 March the renter allegedly assaulted his neighbour with a cricket bat. On Tuesday afternoon a housing worker attended the rented premises and handed the renter a notice to vacate. If the allegations are proved, is this danger continuing at the time the notice is given?

The answer may depend on the circumstances. If the incident was an isolated, one off occurrence it may be possible to argue that the danger is not continuing. However, if the danger was said to stem from ongoing harassment and intimidation by the renter, it might be argued that the danger is continuing.

Dangerous to whom?

Section 91ZJ apples to endangering acts and omissions directed towards occupiers of neighbouring premises, the residential rental provider or their agent, and contractors or employees of the rental provider or their agent.

Occupiers of neighbouring premises

If the rental provider issues the notice to vacate due to danger directed at occupiers of neighbouring properties (s 91ZJ(1)(a)), the residential rental provider will need to show that the conduct was directed at persons who occupy properties with a sufficient degree of proximity to the rented premises. It has also been said that there’re must be a connection between the alleged dangerous act or omission and the rented premises (see Yarra Community Housing v Brown (Residential Tenancies) [2016] VCAT 658 at [23].

As such it would not be permissible for a rental provider to give a notice to vacate under s 91ZJ(1)(a) if the alleged incident occurred down the road from the rented premises or outside on the street. Nor would it be permissible for a rental provider to give a notice to vacate under s 91ZJ(1)(a) if the alleged endangering conduct was directed at persons who occupy properties that are not adjacent, next to or very near to the rented premises such as people who live several houses down from the rented premises.

The residential rental provider or the provider’s agent

Where the rental provider gives the notice to vacate under s 91ZJ(1)(b) of the RTA, the rental provider will need to show that the endangering acts or omissions were directed at the residential rental provider or the provider’s agent.

Contractor or employee of the rental provider or their agent.

The meaning of ‘employees’ and ‘contractors’ is well established in common law and statutory definitions vary. Neither term is defined in the RTA.

What are the formal requirements of a danger notice to vacate?

Section 91ZZO lists several formal requirements a notice to vacate must comply with in order to be valid. These are detailed on Checking a Notice to Vacate.

In Jafarpourasr v Tancevski [2018] VSC 497 at [50] (Daly AsJ), the Supreme Court held that immediate notices to vacate alleging misconduct such as malicious damage must contain a greater level of particularity than notices to vacate with longer notice periods. ‘Danger’ notices should therefore at a minimum provide details of the times, dates, incidents and affected individuals implicated in the allegations of danger.

Challenging the Notice to Vacate on family violence of personal violence grounds

A notice to vacate given under s 91ZJ can be challenged on the grounds that the relevant act or breach for which the notice to vacate was given was caused by the act of a person who has subjected the renter to family violence or personal violence (s 91ZZU) (see Family Violence Provisions).

In the alternative the renter can wait for the possession order hearing and challenge the application for a possession order based on the reasonable and proportionate test (see Reasonable and Proportionate Test).

Defending a possession order application

Notices to vacate for danger are ‘immediate’ notices which allow a residential rental provider to immediately apply to the Tribunal for possession of the premises: s 91ZJ(2). They therefore provide a swift process by which a renter may be evicted almost immediately from their home.

The Tribunal can only make a possession order if (s 330(1)):

  • a residential rental provider was entitled to give the notice to vacate (and the notice has not been withdrawn); and
  • it is reasonable and proportionate (as defined by s 330A) to make the possession order, taking into account the interests of the residential rental provider, the renter, any co-renters and any neighbours who have been affected or may be affected by the acts of the renter.

In applying the reasonable and proportionate test, the Tribunal must consider (amongst other things) whether any other order or course of action is reasonably available instead of making a possession order: s 330A(h). In making that assessment, it is important to consider the Tribunal’s power under s 332A in danger applications to dismiss the possession order application and make a compliance order on its own motion if it considers it reasonable and proportionate and appropriate to do so. The compliance order may require the renter to remedy the breach and to refrain from committing a similar breach. See Compliance Procedures. Care should be taken in arguing this as a reasonable alternative to eviction as it may create difficulties for a renter at a later stage if they should breach the compliance order.

Practice tip

If you make an argument that a compliance order would be a more reasonable course of action, you should ensure that any compliance order that you submit would be appropriate is framed as narrowly as possible to minimise the risk of future eviction.

The reasonable and proportionate test in s 330A was introduced in 2021 and therefore there is limited case law available on its operation. However, an equivalent test applied under the COVID-19 temporary tenancy laws. The following danger case decided under the COVID-19 tenancy laws may shed light on how the reasonable and proportionate test will be determined in applications for possession under s 91ZJ:

For more information see the Checking notices to vacate, When a rental provider ends the rental and Reasonable and proportionate test

What evidence?

As discussed above, the notice to vacate must provide sufficient detail of the reason for the issuing of the notice.

It would also be expected that prior to the possession order hearing, a renter would be provided with details of any evidence to be relied upon by the residential rental provider in support of its application for possession. You may wish to consider requesting an adjournment if the other party is not forthcoming with the evidence they intend to rely on during the hearing, or applying for a directions hearing under s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Section 80 empowers the Tribunal to give directions requiring a party to produce a document or provide information.

Additionally, the rule in Briginshaw (see above), has the effect that the probity of evidence required to prove allegations of danger in a civil proceeding may be elevated. It can be argued that the Tribunal should not reach “reasonable satisfaction” of the allegations in the danger notice to vacate based on “inexact proofs, indefinite testimony or indirect inferences”. Further, while the Tribunal is not bound by the rules of evidence except to the extent it chooses to be (s 98 VCAT Act), it may be appropriate to submit that hearsay evidence should be treated as inadmissible or given little weight by the Tribunal given the serious nature of the allegations.

Lastly, it is important to note that s 105 VCAT Act has been modified by cl 74 of Schedule 1 VCAT Act  such that evidence before the Tribunal in a proceeding under the RTA cannot be used in criminal proceedings except for an offence against the VCAT Act, the RTA or for perjury.

Is there a discretion to postpone a warrant for possession?

For most bases for eviction, the Tribunal has the power to postpone the issuing of a warrant for possession after a possession order is made if satisfied that the renter would suffer hardship if the issue of the warrant were not postponed, and that hardship would exceed the residential rental provider’s: s 352.

However this power does not exist where the renter is evicted for danger: see s 352(3)(a)(i). The residential rental provider will be able to request a warrant of possession immediately.

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