In this section
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 Preparing for VCAT hearings). This must be done within six months of the date of the possession order (s 351(1)) unless the Tribunal makes an order extending the time in which the warrant may be executed: s 354.
A warrant of possession must (s 355):
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).
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. 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.
There are effectively three steps involved in a warrant of possession:
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.
You may be able to prevent your client’s eviction even after a possession order is made by strong negotiation to prevent or postpone the execution of a warrant. Postponing the purchase or execution of a warrant of possession can allow for negotiations to sustain the tenancy. Even a short postponement of execution can mean the difference between a client being evicted into homelessness or safely transitioning into new accommodation. Wherever possible, you should commence negotiations before any warrant is purchased.
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:
You should consider the decision in Burgess & Anor v Director of Housing & Anor  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  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.
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.
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).
You should always talk to your client prior to a VCAT hearing about their housing options in the event that a possession order is made. See our Social work & non-legal resources for housing options if your client is at risk of eviction.
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