An easy-to-understand explanation of specific law-related issues.
DISCLAIMER: This information does not constitute legal advice; don’t get your legal advice from a newsletter, only get legal advice from a practising lawyer!
Eviction and The Notice to Vacate (‘NTV’)
The way the NTV is currently written is misleading and encourages tenants think they legally need to be out of their property by the date listed in the NTV. But this isn’t the case! The NTV is more like a request by the landlord to leave that can later be made enforceable by VCAT. The NTV is the first step in the eviction process; not the last; and there are often options available for renters to avoid eviction after being served an NTV.
Thankfully the NTV form is being updated to be less misleading, but until this happens it’s important to understand the current NTV.
There are a number of reasons why landlords decide to evict tenants. In Victoria, if a landlord decides to evict a tenant, they MUST give the tenant a Notice to Vacate (unless the tenant agrees to ending the tenancy agreement, or the tenant abandons the property). This applies whether you’re living in a private rental, rooming house, public housing or community housing.
On top of this, the landlord MUST include a proper and detailed reason for the NTV. Landlords can’t simply cite a section of the Residential Tenancies Act 1997 as their reason for serving the NTV. They must also provide evidence to support their claim.
The NTV must also be ‘served’ (given to you) in the proper way. It can’t be just left in your letterbox or placed under your door. It must be given to you in person, sent in registered mail, or (only if you agree to it first) via email.
If you receive an NTV make sure you contact your local Community Legal Centre or Tenants Victoria for legal advice. Don’t just ignore it!
The Termination Date
The section of the NTV where the landlord gives a date when they require the tenant to vacate the property is not necessarily the date that you are required to leave. The NTV is only the first step the landlord needs to take if they want to evict the tenant.
Usually the landlord will wait until the termination date of the NTV before they make an application to VCAT for possession of the property or the room (known as a ‘possession order’) however, they are allowed to apply to VCAT for a possession order straight after they serve the NTV. VCAT will ordinarily hear the application within 14 days of the application being made, and a possession order will be made within 7 days of the hearing. The possession order will give you a new date when you are required to vacate, and it will be no more than 30 days after the order is made. It is important to note that VCAT will always list the matter for the first hearing after the termination date listed in the NTV.
If a possession order has been made by VCAT in favour of the landlord, the landlord may then apply to ‘purchase’ a warrant of possession from VCAT. If this step is successful, the warrant of possession is given to the local police station, which is then executed by the police. The police usually (but are not legally required to) give the tenant notice about when they plan to execute the warrant.
So, if you’ve been given an NTV make a note about how and when it was given to you and then contact a CLC or Tenants Victoria for free legal advice about what you can do.
USEFUL CONTACT INFORMATION:
Tenants Victoria: (03) 9416 2577
Darebin Community Legal Centre: (03) 9484 7753
If you’re at risk of homelessness, contact Justice Connect Homeless Law: (03) 8636 4408
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