Warrants of possession

There are effectively three steps involved in a warrant of possession:

1. A residential rental provider purchases a warrant from VCAT. Once the date in a possession order passes, the applicant has six months to purchase a warrant of possession (s 351(1)(b)). You can contact VCAT to confirm whether a warrant has been purchased.
2. VCAT sends the warrant to the local police station for execution. You can contact your client’s local police station after a warrant has been purchased to find out if VCAT has sent the warrant to them yet.
3. The police execute the warrant in the time stated in the possession This is usually 14 days but can be up to 30 days (s 351(4) RTA). Sometimes the police will visit a house to let the renter know when they intend to execute the warrant. If the renter does not leave the property when the police execute the warrant, the police can remove them with reasonable force.

The Tribunal can also make an order extending the time in which the warrant may be executed (s 354) or for immediate issue of the warrant if the warrant was postponed and the renter has failed to comply with s 353 of the RT Act.

Even if a possession order is made, you can still advocate for the client using the Charter and the social housing provider’s policies and procedures to prevent eviction. Homeless Law’s policy position is that evictions from social housing should be an absolute last resort and lawyers should continue to robustly advocate for their clients after a possession order is made, emphasising the social housing provider’s Charter obligations and policies to consider alternatives to eviction.

Negotiation strategies can include:

• Seeking an agreement for the social housing provider to delay purchasing a warrant, ultimately letting the possession order lapse and the tenancy to continue. This may require the client agreeing to address behaviour which is of concern to the provider or entering into a repayment agreement for rental arrears.
  • The Director of Housing has a policy which expressly provides for post-possession order agreements for rental arrears. See Rental Arrears Operational Guidelines.
• If the social housing provider is unwilling to agree to allow the client to retain their current tenancy, negotiating for the social housing provider to arrange alternative suitable housing for the client including transferring them to another property as an alternative to eviction into homelessness.

You should consider the decision in Burgess & Anor v Director of Housing & Anor [2014] VSC 648 and build this into our post-eviction negotiations. As Burgess involved the Director of Housing, the position may be different for community housing providers especially considering Durney v Unison Housing Ltd [2019] VSC 6. It is important that if you are considering advising your client to bring judicial review proceedings in the Supreme Court in relation to the decision to purchase a warrant that you can only do this after the purchase of the warrant and before its execution.

Because private residential rental providers are not bound by the Charter, we approach post-possession order negotiations differently.

Although it is crucial that the residential rental provider understands the client’s circumstances and the impact of eviction on them, it’s important to highlight any practical benefit for the residential rental provider in delaying the execution of a warrant. For example, delaying the warrant will allow the renter to move their belongings and thoroughly clean the property, sparing the residential rental provider the inconvenience of navigating their obligations in relation to goods left behind, the costs of removing belongings or paying for cleaners and the need to make a further application to VCAT to recoup those costs.

The possession order provides a time limit for police to execute the warrant of possession once it is issued by the Tribunal (s 351(4)). This is usually 14 days but can be up to 30 days. As a last resort, we should consider contacting the files officer at the police station the warrant was issued to and request they wait the maximum amount of time before executing the warrant.