If the landlord or agent rejects your offer or you are unable to make any payments, the landlord must follow the proper legal procedure if they want to evict you.
It is illegal for the landlord or agent to personally attempt to evict you. Only the police can evict you and even then, they must have a valid Possession Order and a Warrant of Possession from VCAT.
You can only be evicted if you have been given a valid Notice to Vacate, there has been a hearing at the Victorian Civil and Administrative Tribunal (VCAT), the Tribunal has granted the landlord a Possession Order, the landlord has purchased a Warrant of Possession and the Police come to execute that warrant.
If you get a notice from VCAT
If you receive a Notice of Hearing from VCAT, and you do not want to be evicted, you must attend the VCAT hearing.
If the landlord or agent tells you that you do not need to go to the hearing because you have paid off the arrears (or for any other reason), you should contact the VCAT on 1300 01 8228 (1300 01 VCAT) to check that the application has been withdrawn. If it hasn’t been withdrawn you should go to the hearing.
At the hearing, the VCAT Member can make a Possession Order or they can decide to either dismiss or adjourn the landlord’s application for a Possession Order. The Member may adjourn the application if:
- you can show that a repayment plan has been agreed upon; or
- you can show the Tribunal how you can pay off the arrears; and
- the landlord will not suffer any financial loss as a result
Many tenants are successful at asking VCAT not to grant a Possession Order if they have a reasonable plan to pay back the rent arrears.
You should take as much evidence as you can to the VCAT hearing to show how you got into rent arrears and that you can pay the arrears. Evidence should include a statement from a financial counsellor that outlines your income and expenditure or some kind of similar documentation (such as your pay slips, Centrelink payment statements or proof of rental payments). You can also ask anyone who can support your case to give evidence at the hearing.
If VCAT adjourns the application it will be for a set period of time, usually 3-6 months. In this case, ‘adjourn’ means that the eviction is put on hold and you are given a second chance. If you repay the arrears according to the VCAT order, on the set date VCAT will consider the application to be withdrawn and the matter will be closed.
However, if you do not follow the VCAT order (e.g. you are late in making a payment), the landlord can ‘renew’ the application and you will receive a Notice of Hearing. If this happens, you must go to the second hearing and give a good reason for not following the order, or there is a chance that you will be evicted.
If VCAT refuses to adjourn the hearing and grants a Possession Order, you can ask the VCAT Member to postpone the issue of the Warrant of Possession. This delays the time that the police can execute the warrant and evict you. VCAT can postpone the warrant for up to 30 days. When deciding whether to postpone the warrant the VCAT Member will take into account your hardship and the landlord’s hardship if the warrant is postponed. You should make sure that you bring evidence of your hardship to the hearing (such as proof that you have applied for other rental properties, medical certificates, letters from support workers).
Note: if the landlord is taking action to evict you for rent arrears we recommend you also read the information on our eviction page in case the landlord uses an alternative method to apply to VCAT for a Possession Order.
For more information contact us, your local TAAP service, Tenancy Plus provider, or Community Legal Centre.