Under s 91ZZA(1) of the Residential Tenancies Act 1997 (Vic) (RTA) the residential rental provider may give the renter a notice to vacate the rental premises if the property is immediately to be occupied after termination by:
In Jafarpourasr v Tancevski  VSC 497 at , the Supreme Court of Victoria held that a residential rental provider’s recourse to s 258(1) (repealed) (now s 91ZZA(1)) is intended to be limited to circumstances where a close family member needs immediate accommodation. If the person needing immediate accommodation does not fall within the category of family relationships under s 91ZZA(1)(b)(i), they must have a relationship of ‘co-residence and at least substantial financial dependence’ with the residential rental provider.
Section 91ZZA(2) provides that the notice must specify a termination date that is not less than 60 days after the date on which the notice was given.
Equivalent ‘premises to be occupied by residential rental provider’ notice to vacate provisions apply to caravan parks (s 206AZB).
Section 91ZZA replaced s 258 of the RTA (repealed) with no meaningful changes to the wording. A substantially identical provision (s 549(2)(o)) also appeared in the COVID-19 temporary tenancy lawyers (also repealed).
Therefore, authorities that consider the meaning of immediately to be occupied and ‘wholly or substantially dependent’ under these provisions are also likely to be applicable to s 91ZZA.
The word ‘immediately’ should be given its ordinary meaning, being ‘without delay’ (see Jafarpourasr v Tancevski  VSC 497 at ).
Immediate occupancy can include preparatory works at the premises prior to moving in, including for example, painting, carpeting or the installation of a high-speed internet connection. In Servinis v Hartwick (Residential Tenancies)  VCAT 1017 at –, the Victorian Civil and Administrative Tribunal found that repair and maintenance work taking between 4 and 6 weeks prior to move-in date satisfied the requirement of ‘immediacy’.
However, the rental premises must be occupied by the relevant person after termination of the residential rental agreement. In Rizio v XEP  VCAT 882 at , the applicants were unable to satisfy the requirement of immediate occupancy, because their current application for a permit to demolish the property and their history of attempting to redevelop the rented premises (among other factors) suggested that they did not intend to actually occupy the property after termination.
A person is ‘wholly or substantially dependent’ on the residential rental provider if they are ‘primarily, essentially or in the main dependent upon another person’ (see Re Commissioner of Superannuation v Fay Olive Scott  FCA 79 at ). The phrase ‘wholly or substantially dependent’ has also been taken to mean that a person must ‘rely upon another for financial support, as opposed to simply receiving financial support’, although it does not necessarily require total dependence (see Jafarpourasr v Tancevski  VSC 497 at ).
In Jafarpourasr v Tancevski  VSC 497 at –, the Victorian Supreme Court held that the term ‘wholly or substantially dependent’ connotes a greater dependence on someone than simply ‘being assisted by’ them. The Court held that VCAT had misconstrued the term when it found that a grandson (the intended occupant of the premises) who was ‘being assisted by’ his grandfather (the residential rental provider) was ‘wholly or substantially dependent’ on the grandfather.
Section 91ZZO lists several formal requirements of notices to vacate issued under s 91ZZB to be valid, including new documentary evidence requirements (further detail below). These are detailed on Checking a Notice to Vacate.
The Tribunal can only make a possession order if (s 330(1)):
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).
The reasonable and proportionate test in s 330A was introduced recently and therefore there is limited case law available on its operation. However, an equivalent test applied under the COVID-19 temporary tenancy laws. See below decisions made by the Tribunal in the context of an application under s 549(2)(o) of the RTA (repealed) for occupation of the property by the residential rental provider considered whether it was reasonable and proportionate to make a possession order.
As discussed above, the notice to vacate must provide sufficient detail of the reason for the issuing of the notice.
Section 91ZZO(e) includes new documentary evidence requirements that a notice to vacate issued under s 91ZZA must be accompanied by documentary evidence which supports 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. Documentary evidence in support of residential rental provider occupying the property notices to vacate were not required under s 259 of the RTA (repealed) or s 549(2)(o) of the temporary COVID-19 RTA laws (repealed), which contained similar residential rental provider occupying property provisions.
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 rental provider should be required to provide evidence supporting the intention of themselves or their family member to move into the property, including:
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.
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.
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