Where the residential rental provider or other accommodation provider wants to regain possession of the rented premises, this must be done in accordance with the Residential Tenancies Act 1997 (Vic) (RTA).
What is the process for eviction?
In order to evict a renter, the residential rental provider must do the following:
Issue and serve a notice to vacate on the renter;
If the renter does not move out of the premises by the date on the notice to vacate, apply for a possession order from the Tribunal;
Attend a hearing at the Tribunal in relation to the application and establish that the notice was validly given and the reasonable and proportionate test is satisfied;
Obtain a possession order;
Purchase a warrant and have the warrant executed (thereby removing the renter from the premises).
The renter in this process, can also challenge the notice to vacate (see below).
An equivalent process applies for rooming house residents, caravan park residents, Part 4A site tenants and SDA residents.
Practice tip
When assisting a renter to challenge eviction proceedings, some general tips include:
Obtain copies of all Tribunal documentation
If your client has no documents, you will need to contact the Tribunal or the residential rental provider to obtain them. We recommend contacting the Tribunal and requesting all documents that have been filed in relation to the renter’s name and address
Obtain instructions
Ask your client about:
the reasons for the notice to vacate and test whether the reasons given match with the legislation and support an entitlement to have given the Notice to Vacate (s 330(1)(a)); and
the length of the residential rental and their history as a renter;
their responses to the various factors set out in the reasonable and proportionate test in s 330A, which the Tribunal must consider in determining whether to make a possession order (see also the Reasonable and Proportionate Test).
How much notice does the renter receive?
There are a variety of notices to vacate and time periods vary. See Overview of notices to vacate for notice periods applicable to each type of notice to vacate. As discussed, the renter does not have to leave until the Tribunal makes a possession order and the residential rental provider executes a warrant.
The residential rental provider can only apply for a possession order once the notice period of the notice to vacate has expired and the renter has not left: s 322(2) RTA. The application must be made within 30 days of the expiry of the notice: s 326.
What must be included in the application for a possession order?
The application for a possession order should not raise issues outside the scope of the matters raised in the notice to vacate. In Smith v Director of Housing [2005] VSC 46, the Supreme Court held that:
“The source of the application, and thus the jurisdiction of VCAT, was the notice to vacate. (A VCAT application for a possession order) could never be wider than that notice nor could it validly allege any facts not alleged in the original notice to vacate.”
The Victorian Civil and Administrative Tribunal Rules 2018 (Vic) (VCAT Rules) r 8.08 also requires that certain applications must specify the acts, matters and circumstances, including relevant dates, being relied upon in support of the application.
What must be established at the Tribunal hearing?
In order for the Tribunal to make a possession order, the Tribunal must be satisfied that (s 330):
the residential rental provider (or other type of housing provider as applicable) was entitled to give the notice;
the notice has not been withdrawn; and
that in the circumstances of the application it is reasonable and proportionate to make a possession order.
If the Tribunal makes a possession order, it can order that a warrant of possession be postponed for up to 30 days from the date of the possession order in certain circumstances. See Preparing for VCAT hearings for more guidance.