Ending a fixed term lease

End of fixed term rental agreement of not more than 5 years

Under s 91ZZD of the Residential Tenancies Act 1997 (Vic) (the Act), a residential rental provider  may give a renter a notice to vacate the rented premises at the end of the initial fixed term:

(1) …..under a fixed term residential rental agreement for a fixed term of not more than 5 years, before the end of the term of the residential rental agreement…

Section 91ZZD(2) provides that the notice to vacate must specify a termination date that is on or after the date of the end of the initial term.

Equivalent notice to vacate provisions apply to caravan park “specified period of occupancy” notices (s 206AZD) and Part 4A sites “end of fixed term” notices (s 207ZG).

Timing for issuing and challenging notices to vacate under section 91ZZD

Under s 91ZZD(3) of the Act, a notice to vacate must be given, in the case of a fixed term residential rental agreement:

(a) for 6 months or more (but not  exceeding 5 years), not less than 90 days before the end of the initial fixed term: or

(b) for less than 6 months, not less than 60 days before the end of the initial fixed term.

In Yossifidis and Bailey v Director of Housing [2021] VCAT 1127 (30 September 2021) Deputy President Proctor confirmed that s 91ZZD contains two relevant requirements as to time, that if not complied with result in the notice being invalid.

1. The specified termination date must be on or after the date of the end of the initial fixed term.
2. The notice must be given:
   • not less than 90 days before the end of the initial fixed term, for a fixed term residential rental agreement for 6 months or more (but not exceeding 5 years); or
   • not less than 60 days before the end of the initial fixed term, for a fixed term residential rental agreement for less than 6 months.

In Yossifidis, the rental provider had issued a Notice to Vacate to the tenant under s 91ZZD. However, the notice had only been posted by the rental provider 70 days before the end of the initial fixed term. Accordingly, the Tribunal found that the 90 day notice period required by s 91ZZD(3) had not been complied with and the notice was therefore invalid.

To challenge a notice to vacate given under s 91ZZD of the Act, pursuant to s 91ZZI(5), a renter must apply to VCAT

• within 28 days of the notice being given where the term of the fixed term rental agreement is of 6 months or more; or
• within 21 days of the notice being given where the term of the fixed term rental agreement is of less than 6 months.

For further information on challenging a s 91ZZD notice to vacate refer to Checking a Notice to Vacate.

What are the formal requirements of a s91ZZD notice to vacate?

Section 91ZZO lists several formal requirements of notices to vacate issued under s 91ZZD to be valid. These are detailed on Checking a Notice to Vacate.

Challenging the Notice to Vacate on retaliation grounds

A notice to vacate given under s 91ZZD has no effect under s 91ZZI(4) of the Act if the landlord gives the notice as retaliation in response to:

• the exercise, or proposed exercise, by the tenant of a right under the Act; or
• the tenant making a report as to damage and breakdown of facilities under s 72AA of the Act.

See the Tribunal’s decision in 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 s 261 of the Act (repealed), which is broadly equivalent to s 91ZZD, had no effect because it was retaliatory. VCAT found that the notice was given in retaliation to the tenants exercising their rights under the Act in relation to complaining to the landlord about a faulty air-conditioning unit. The notice therefore had no effect.

For further options to challenge a notice vacate see Checking a Notice to Vacate.

Defending a possession order application

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).

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

What evidence?

The notice to vacate must provide sufficient detail of the reason for the issuing of the notice, noting that in this case, there is no reason required apart from the residential rental provider wanting to end the fixed term rental agreement.

Therefore the best option for challenging a notice of vacate for end of fixed term tenancy agreement will be retaliation grounds (see section 3 above) or on the basis that it is not reasonable and proportionate (see section 4 above).

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.

Section 104 of the VCAT Act give powers to subpoena parties to provide evidence under oath.

Is there discretion to postpone a warrant for possession?

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.