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:
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.
When assisting a renter to challenge eviction proceedings, some general tips include:
There are a variety of notices to vacate and time periods vary. The notice periods applicable to each type of notice to vacate are listed on this page (see below). 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.
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  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.
In order for the Tribunal to make a possession order, the Tribunal must be satisfied that (s 330):
See the Reasonable and Proportionate Test for more information.
A person who obtains a possession order may apply to the Tribunal’s principal registrar for a warrant of possession (unless the warrant is postponed – see below). This must be done within six months of the date of the possession order (s 351(1) RTA) unless the Tribunal makes an order extending the time in which the warrant may be executed: s 354 RTA.
A warrant of possession must (s 355 RTA):
A warrant of possession must be executed within the time stated in the possession order, which must not exceed 30 days after the date of the issue of the warrant: s 351(4) RTA.
A possession order lapses if it the person named in the possession order does not apply for the issue of a warrant of possession within six months of the date of the possession order, or if is not executed within the time stated in the order or Tribunal extension order: s 356 RTA. The Tribunal has the power to extend the time in which a warrant of possession may be executed. The extension cannot be for more than 30 days from when the warrant would otherwise expire: s 354.
The Tribunal can order that a warrant of possession be postponed for up to 30 days from the date of the possession order if the Tribunal is satisfied that (s 352 RTA):
If a renter, resident or site tenant fails to pay rent or otherwise fails to comply with their occupancy agreement or the RTA during the period of postponement, the Tribunal can order that the warrant of possession be issued without delay: s 353 RTA.
A warrant of possession authorises the police officer or authorised person to whom it is directed to enter the rented premises, room and rooming house, building, site or caravan (as the case may be), by force if necessary, and compel all persons for the time being occupying the rented premises, room (other than a shared room), building, site or caravan to vacate and give possession of them to the applicant for the warrant: s 355 RTA.
The police officer or authorised person may also compel any person named in the possession order to vacate a shared room, but cannot give possession to the applicant: s 355(2)(b)(ii) RTA.
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