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Evicting a Tenant – Should You Seek Legal Advice?

When a landlord (now known as a rental provider) wants a tenant (renter) to move out of their property, they can either talk to the renter to reach an agreement or give the renter a notice to vacate. If a renter will not leave, or if the notice is not given in accordance with the necessary rules and regulations, the situation can become extremely complicated and stressful for everyone involved. Read on to learn more about evicting a renter legally in Victoria.

Giving Notice

In Victoria, a rental provider can request a tenant/renter to vacate the property for a wide variety of reasons by serving a notice to vacate. A notice to vacate is a formal statement that the rental provider wants to end the rental agreement and it must include a reason.

In some situations, a rental provider can give a notice to vacate before the end of the rental agreement (lease). They can ask for immediate eviction if:

• The tenant or visitor intentionally inflicts malicious damage to the premises or common areas.
• The tenant or visitor endangers neighbours, the rental provider, the provider’s agent, or their contractors or employees.

A notice can also be given before the end of lease date for the following reasons:

• If the tenant owes at least 14 days rent.
• If the tenant has breached a VCAT (Victorian Civil & Administrative Tribunal) order.
• If the premises are being used for illegal purposes (like drug manufacturing).
• If other tenants have been brought in without consent (subleasing).
• If the tenant has not paid the bond as agreed.
• If the tenant has a child living at the premises when the agreement does not allow children.

In any of these situations, 14 days’ notice must be given.

A rental provider cannot give a renter notice for doing something, or saying they will do something, they are legally allowed to do. For example, requesting repairs, asking to have a pet, or challenging a rent increase.

Giving Notice at the End Of a Rental Agreement

If a rental provider wants the renter/s to move out when an agreement ends, they are still required to give them notice. The notice to vacate for an end of fixed-term agreement must specify a termination date on or after the end date listed in the rental agreement. The rental provider must also provide a reason as to why they are asking the tenant to vacate. Such reasons may include:

• The rental provider is planning to move in at the end of the rental agreement.
• Reconstruction, repairs, or renovations are planned and cannot go ahead unless the renter vacates. You may be required to supply evidence of the works with the notice to vacate.
• The rental property is going to be demolished and all necessary permits have been obtained. Evidence will be required. Additionally, the rental provider must not re-let the premises before the end of 6 months after the date on which notice was given, unless approved by VCAT.
• The property is to be sold or put up for sale and vacated immediately after the rental agreement ends. If you are giving a notice to vacate for this reason you must include evidence with the notice to vacate. It’s also important to note that a landlord cannot shorten the length of the rental agreement to give a notice to vacate for this reason. 

A Valid Notice to Vacate

According to Consumer Affairs Victoria, for a notice to vacate to be valid, it must:

• Be sent to the tenant at the premises by registered post or hand delivered to an occupant aged 16 years or over.
• Be addressed to the tenant’s full legal name.
• Give a specific reason or state that no reason is given in the case of a 120-day notice.
• Be signed by the landlord (or their agent).
• Allow the correct amount of time to give the notice.
• Give the date for the tenant to leave.

A renter can challenge a notice to vacate if they:

• Believe it was not given to them properly.
• Disagree with the reason given on the notice.

What Happens if a Renter Does Not Leave?

If the tenant has been served a notice to vacate that complies with the above requirements but has failed to vacate the premises, then the landlord or managing agent can seek a possession order for eviction from VCAT. In extreme circumstances, this order can be used to obtain a warrant that can be executed by the Victorian Police to evict the occupant/s.

Seeking Legal Advice

In many cases, requesting a tenant to vacate or evicting a renter is straightforward, especially when done via a professional property management team. However, if you are a landlord who self-manages a property, or if your renter is refusing to leave you should seek legal advice to determine the best course of action. For an experienced property lawyer, Ringwood locals choose Robert Wood and Associates for expert advice at affordable rates.

The Legal Experts in the Eastern Suburbs

Our team specialises in several areas of law – including commercial law, family law, wills and probate, estate planning, criminal law, and conveyancing. Whether you need a divorce lawyer, business law solicitor or even a VOCAT lawyer, Melbourne can rely on us for the expertise and solutions to assist in a wide range of legal matters. Call us on (03) 9762 3877 today.