-->

When a rental provider ends the rental agreement

Last updated: 29 Mar 2021

 

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:

  1. Issue and serve a notice to vacate on the renter;
  2. 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;
  3. 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;
  4. Obtain a possession order;
  5. 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
    • how the notice to vacate was served or given to them (see Checking notices to vacate); 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).

When must the renter move out?

A renter is not required to leave the premises until a possession order has been made in respect of the premises: s 91B RTA; Quick v Lam-Ly Pty Ltd [2019] VSC 233 at [33]. If a renter refuses to leave they may be removed pursuant to a warrant of possession (see below).

How much notice does the renter receive?

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.

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.

See the Reasonable and Proportionate Test for more information.

When can a residential rental provider purchase a warrant of possession?

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):

 

  • be in a form prescribed by the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) Schedule 2 Form 5, 6 or 7;
  • be directed to a police officer or authorised person;
  • provide brief details of the possession order; and
  • be signed by the principal registrar.

 

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.

Postponing the issuing of a warrant of possession

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):

  • the renter, resident or site tenant would suffer hardship if the issue of the warrant were not postponed; and
  • the hardship would be greater than any hardship faced by the residential rental provider, rooming house operator, caravan park owner, caravan owner, site owner or mortgagee.

Warrants of possession in relation to notices to vacate issued under ss 91ZI (damage), 91ZJ (danger), 91ZK (threats or intimidation) or 91ZL (unfit for human habitation) cannot be postponed.

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.

What happens when a warrant of possession is executed?

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.

This page contains legal information only. View our disclaimer.

Not a lawyer?

Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.