Eviction

The Victorian Government has temporarily banned some evictions until 28 March 2021.

From 29 March 2020 until 28 March 2021, you cannot be issued with a Notice to Vacate or be evicted if you are behind in rent as a result of financial hardship that is a result of the COVID-19 pandemic.

You can still be evicted under the new laws in certain circumstances, for example if:

• The landlord is selling or moving into the property.
• A renter sub-lets the property without the landlord’s consent.
• A renter does not pay their ordinary rent, and they are not experiencing financial hardship.
• A renter does not comply with their obligations under their rental agreement or the rental laws, and it is not because of COVID-19.

You cannot be given a Notice to Vacate if you have fallen behind in your rent as a result of Covid-19.

However, if the landlord thinks you can afford to pay rent without it causing you financial difficulty, they can still apply to terminate your lease.

Previously, landlords and tenants who were in any sort of dispute could apply directly to VCAT to get the matter resolved or to reach an agreement.

Now all disputes go to Consumer Affairs Victoria, which decides whether the dispute is referred first to alternative dispute resolution or whether it goes straight to VCAT.

For more information about the new Residential Tenancies Dispute Resolution Scheme go to VCAT – dispute resolutions.

To evict a tenant, the landlord requires a Termination Order and a Possession Order.

A Termination Order is an Order telling you the date you should leave your rented premises.

If you cannot leave by the date in the Termination Order, you will not be in trouble.  The landlord cannot evict you unless VCAT has made a Possession Order.

If you stay past the termination date you will be responsible for paying the rent up to and including the day you move out and return the keys, or, if a Possession Order is made and a warrant issued, until you are evicted.

VCAT cannot make a Termination Order (an order to end the tenancy) if the reason you didn’t do everything you were obliged to do, including paying rent, was because of the pandemic.

To terminate a lease:

• A landlord must prove they have a lawful reason – the “grounds” or basis for the Termination Order and
• VCAT must decide whether it is “reasonable and proportionate” that the tenancy be terminated given the impact on everyone affected by the decision.

Broadly, there are two categories of grounds to terminate a lease – “fault” and “no-fault” grounds.

“Fault” grounds is where the tenant is alleged to have broken the contract or the Act somehow.

The most common “fault ground” is:

• the landlord thinks you can afford to pay rent without it causing you financial difficulty,

“No-fault grounds” are where the tenant is not at fault, but the landlord has a lawful basis to seek to get the property back.

The most common “no fault grounds” are:

• the landlord, or a person that is financially dependent on the landlord that lives with them, needs to move in
• the landlord is selling.

There are other “fault” and “no fault” grounds but they are all need to meet the test of whether it is “reasonable and proportionate” for the tenancy to end.

If VCAT decides the landlord has proved they have grounds to terminate a lease, VCAT must then decide whether it is “reasonable and proportionate” to end it.

VCAT must consider a range of factors including (but not limited to):

• the hardship you and your household may suffer if the termination order is made
• the hardship of other parties – such as the landlord – if the termination order is not made
• the nature, frequency and duration of any conduct that led to the application for a termination order
• any family violence or personal violence intervention orders or related matters
• whether any other order by VCAT or other course of action is reasonably available instead of ending the tenancy

There are two types of Termination Orders VCAT can make:

• a Termination Order under section 549(3) which will entitle you to a minimum grace period before the tenancy ends
• a Termination Order under section 549(4) where there is no minimum time provided and VCAT may also make a Possession Order at the same time

TIP: If VCAT is going to make a termination order, you should ask that it be made under section 549(3). This means that, by law, you get a minimum time period before you have to move out. If VCAT refuses and wants to make a termination order and possession order at the same time (under section 549(4)), you should ask for the hearing to be postponed (adjourned) to allow you to get legal advice.

For information on asking for an adjournment – See VCAT – hearings.

See “Termination orders – minimum times” for more information.

Once the landlord has a Termination Order, they can apply to VCAT for a Possession Order.

If VCAT makes a Possession Order, the landlord can purchase a “warrant to evict” from VCAT, which is given to police.

This warrant is not a criminal process, but it authorises the police to conduct the eviction if you do not move out by the date set in the Possession Order.

The police will generally try to contact you to let you know the day the eviction will take place.

By law, if VCAT makes a Termination Order, but not a Possession Order, you will be given a minimum number of days before your tenancy will end.

Reminder: As a result of the emergency laws introduced as part of the pandemic response, a tenant cannot be given a Notice to Vacate if they have fallen behind in their rent as a result of Covid-19.

The minimum time periods for each possible Termination Order are below:

Zero days

If a tenant

• caused damage
• caused danger
• was violent, on certain properties

if the property

• is destroyed or unfit to live in.

At least 14 days

If a tenant

• was threatening or intimidating
• didn’t comply with an existing VCAT compensation or compliance order
• assigned/sublet without consent
• used the property for an illegal purpose

If a public housing tenant

• committed an indictable offences
• committed drug offences e.g. trafficking, supplying, cultivating etc
• misled the landlord about their eligibility for public housing

At least 28 days

If a tenant

• has failed to comply with their obligations under their agreement, including not paying rent when they could have without experiencing severe hardship
• kept a pet after VCAT had made an order for it to be removed

At least 30 days

If a tenant in a public housing property

• was provided with the property as transitional housing, and has refused to seek, or refused to accept an offer for, alternative accommodation if the landlord has published requirements for this

At least 60 days

If a landlord

• is selling
• or they or their family needs to move in

If a public housing property

• needs repairs, renovations, rebuilding that can’t be done with a tenant in the property, or if the property needs to be demolished.
• is needed for a public purpose

At least 90 days

If a public housing tenant

• is no longer eligible for public housin

While VCAT hearings are now generally conducted on the phone, there may be circumstances where you have missed your hearing.

If this has happened to you, you have up to 14 days from finding out about an Order that was made, or until the warrant to evict is executed by the police (whichever is first), to apply to VCAT to reopen the matter. To do this, fill in the following form:

You can ask VCAT to give written reasons for any decisions and orders they make. You must make this request during the proceeding. It is polite to flag at the start of the hearing that you might make this request. This allows the VCAT Member to make appropriate notes.

Getting written reasons is particularly useful if you could not get legal advice before an order was made, or if you believe VCAT made an error in ruling on the application.

Note: If you ask for written reasons for the decision, your details and details about the hearing will be included, which can be made public.

If you had a hearing where VCAT made a termination order and possession order at the same time, please tell us your story. Your stories can help us campaign for better laws for tenants.

If the landlord lives interstate, there are constitutional limitations that prevent VCAT from hearing the matter. You still have a valid tenancy and the landlord still cannot evict you contrary to the law but you should seek legal advice from your local legal service or contact us.

If the landlord or agent does not follow all the steps in the law, if they threaten to evict you or if they attempt to illegally evict you, seek legal advice immediately. You can also write a letter to the landlord asking them to abide by the law and stop breaching your rights.

Remember if you are seeking a restraining order, you will need to make sure you get a Consumer Affairs Referral number as soon as possible before applying to VCAT.

You can use one of the example letters below and fill in details about your specific situation:

For more information see Restraining orders and Illegal evictions.