Premises to be occupied by rental provider or their family

Last updated: 29 Mar 2021

Possession for premises to be occupied by the residential rental provider or the residential rental provider’s family

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:

  1. the residential rental provider;
  2. in the case of a residential rental provider who is an individual;
    1. the residential rental provider’s partner, child, parent or parent’s parent; or
    2. by another person who normally lives with the residential rental provider and is wholly or substantially dependent on the residential rental provider.

In Jafarpourasr v Tancevski [2018] VSC 497 at [79], the Supreme Court of Victoria held that a residential rental provider’s recourse to s 258(1) (repealed) (now s 91ZZA(1)) is intended to be limited to circumstances where a close family member needs immediate accommodation.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).

Practice tip

Section 91ZZA replaced s 258 of the RTA (repealed) with no meaningful changes to the wording. A substantially identical provision (s 549(2)(o)) also appeared in the COVID-19 temporary tenancy lawyers (also repealed).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.

What is “immediate” occupation?

The word ‘immediately’ should be given its ordinary meaning, being ‘without delay’ (see Jafarpourasr v Tancevski [2018] VSC 497 at [67]).

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) [2020] VCAT 1017 at [16]–[17], 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 [2020] VCAT 882 at [21], 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.

When is a person ‘wholly or substantially dependent’?

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 [1987] FCA 79 at [14]). 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 [2018] VSC 497 at [85]).

In Jafarpourasr v Tancevski [2018] VSC 497 at [81]–[82], 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.

What are the formal requirements of a section 91ZZB notice to vacate?

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.

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).

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.

  • Baldacchino v Campbell [2020] VCAT 1032: the tenant was in her late 60s, received a disability support pension and suffered from numerous physical and mental health conditions. The Tribunal did not make a possession order where stage 4 COVID restrictions were still in place and where the tenant was at greater risk if she caught COVID-19.
  • Koh v Thomas (Residential Tenancies) [2020] VCAT 591: the tenant was in the final stages of completing her Masters education, suffered a health condition, had no family support in Melbourne and had precarious finances. She had unsuccessfully searched for alternative housing and was concerned about being evicted into homelessness.  The Tribunal declined to make a possession order due to the future uncertainty during COVID-19.
  • Mikho v Burgess [2020] VCAT 691: the Tribunal found that any termination order would not be reasonable and proportionate, having regard to the tenants’ difficulty finding a suitable home for their children, one of the tenant’s medical issues, the tenants’ financial stress, the tenants’ continued payment of rent despite that stress, the landlord’s failure to substantiate his financial stress, the ownership by the landlord of a number of other properties and the landlord’s lack of ties to the Mordialloc home (at [13]).
  • Rizio v XEP [2020] VCAT 882: the Tribunal found there were no grounds for making a termination order. The Tribunal was not satisfied that the landlord’s intended to occupy the rented premises after the termination date given the landlords’ demolition plans and the existence of their family home in Eltham and another rented property in Sorrento. The Tribunal found that the impact of making a termination order would be more severe for the tenant than the impact on the landlords of not making a termination order, having regard to the tenant’s medical and financial situation and the availability of other properties for the landlords to live in (at [31]-[33]).
  • Struth v Thwaites [2020] VCAT 788: the Tribunal found it reasonable and proportionate to make a termination and possession order. The landlords were living in a caravan park and could not fund alternative accommodation and had compromised health.

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.

Documentary evidence requirements

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.

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 Consumer Affairs Victoria website.

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

Residential rental provider’s evidence

The rental provider should be required to provide evidence supporting the intention of themselves or their family member to move into the property, including:

  • where they are currently living;
  • evidence that their current property cannot be occupied;
  • whether they have an alternative property they can live at, including why they can’t rent somewhere else;
  • whether and why they need to move into the property immediately after the termination date; and
  • what their financial circumstances are.

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.

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