Under s 91ZZB of the Residential Tenancies Act 1997 (Vic) (RTA) of, a residential rental provider may give a renter a notice to vacate the premises if:
(1) the premises are immediately after the termination date to be sold or offered for sale with vacant possession;
Section 91ZZB(4) of 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 ‘sale’ notice to vacate provisions apply to rooming houses (s 142ZJ), caravan parks (s 206AZ) and mortgagees entitled to recover possession of Part 4A sites (s 207ZI). A separate scheme applies to specialist disability accommodation (s 498ZX(1)(k)).
Vacant possession refers to a purchaser’s right to have exclusive use of a property on completion of a contract of sale. The property must be free from any occupants, including tenants.
In contracts for the sale and purchase of land, it can be advantageous for the seller to sell property with vacant possession, rather than subject to a tenancy.
The residential rental provider’s notice to vacate and documentary evidence should be interrogated to confirm the property is to be sold with vacant possession.
The word ‘immediately’ was considered by the Tribunal in Wade v McKenzie (Residential Tenancies)  VCAT 482 which cited the decision of Lister v Forth Dry Dock & Engineering Co Ltd  1 AC 546 at 576 that the word ‘in its ordinary signification […] involves the notion that there is, between two relevant events, no intervening space, lapse of time or event of any significance’. The Tribunal opined that ‘immediately’ varies with context, and the circumstances may determine the proximity to the event that is necessary.
Similarly, if the fixed term lease includes a provision permitting the residential rental provider or the renter to terminate the agreement by notice, other than on the grounds of a breach, the notice to vacate is of no effect if the notice period is less than what is required under the lease: s 91ZZI(1)(a)(i).
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 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. Despite this, the majority of decisions by the Tribunal in the context of an application under s 549(2)(j) of the RTA (repealed) for sale of the property by the rental provider considered whether it was reasonable and proportionate to make a termination order, not a possession order.
Criteria (h) to (j) of s 330A are relevant considerations where the landlord intends to sell, or move into the rented premises. It has been observed that criteria (h) overlaps (j). In particular, the Tribunal has considered in relation to:
The following decisions of the Tribunal in relation to termination and possession order applications brought under s 549(2)(j) also consider issues:
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 91ZZB 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 a sale notice to vacate was not required under s 259 of the RTA (repealed) or s 549(2)(j) of the temporary COVID-19 RTA laws (repealed), which contained similar sale of property provisions.
We recommend you check the up-to date list of approved documentary evidence which the Director publishes—
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 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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