Overdue rent

If you are on a low income, a pension or benefit it can be easier to pay rent on time by paying fortnightly instalments when you receive your income. However, many rental agreements require monthly payment. You can ask the rental provider if you can agree to pay it fortnightly [section 42].

If you receive a pension or benefit, then your rent can be deducted from it and paid directly using Centrepay, which is administered by Centrelink [section 42]. For more information about Centrepay, contact Services Australia.

If you have your rent paid by Centrepay, you must cancel the payments when you move out. Make sure you adjust the amount of the final rent payment if you are moving out before the next payment is due.

Rent receipts should include the period for which the rent is paid. This should tell you what date the rent is paid up to. Ask for a rent receipt whenever you pay your rent. If you are not sure when your rent is paid up to, contact the rental provider or real estate agent and ask for a copy of your rent payment record, which is often called a rent ledger.

Note that on this page sections in brackets, such as [section 42], refer to sections in Victoria’s Residential Tenancies Act 1997. There are links to these sections of the Act further down this page.

If your rent is overdue and you can’t make a payment, contact the rental provider or real estate agent as soon as possible and tell them when you will pay.

If you can’t pay the overdue rent in one payment, offer to pay it off – for example, offer to pay an extra $20 per week. Do not offer to pay more than you can afford. Make any offers in writing and keep a copy. Even if the rental provider or agent refuses your offer and takes steps to evict you, you can use your offer as evidence that you tried to resolve the problem.

If you need help to write a letter to the rental provider, see Justice Connect’s Dear Landlord website. It has self-help tools for private renters who have fallen behind in rent or are worried they might miss a payment.

If you are a private renter experiencing financial hardship, Tenants Victoria’s financial counselling service may be able to help you. It’s confidential and free. For more information see our Financial hardship page.

If you need help working out a realistic payment plan you can talk to a financial counsellor by calling the National Debt Helpline on 1800 007 007.

There are also housing services that may be able to give you financial assistance if your rent is overdue. You can find these services by calling  1800 825 955 (24 hours toll free).

If your rent is 14 days overdue the rental provider can give you a 14-day notice to vacate. The 14 days of overdue rent could be consecutive days, or they could have gradually added up if you have short-paid your rent over a period of time. Whichever way the overdue rent has added up, you must be 14 full days behind in your rent before the rental provider can give you a notice to vacate. The notice is invalid if you are not 14 days behind when you receive it [section 91ZM].

You do not have to move out just because you get a notice to vacate.

If the rental provider wants to evict you, they must first apply to the Victorian Civil and Administrative Tribunal (VCAT) and prove to VCAT that you are behind in the rent, that a payment plan isn’t appropriate in the circumstances and that they should be granted a possession order allowing them to take back possession of the property.

If you receive four notices to vacate for overdue rent within a 12-month period, and each time you pay the rent before the termination date in the notice, VCAT must dismiss any application for a possession order. Each 12-month period begins on the anniversary of the start of the tenancy. See ‘Notices that have no effect’ on this page.

It is illegal for the rental provider or agent to personally attempt to evict you [section 91P]. Only the police can evict you and they must have a valid possession order and a warrant of possession from VCAT.

For more information see our page Notices to vacate.

If the rental provider wants to evict you because your rent is overdue they must follow the proper legal procedures, which are:

• Giving you a valid notice to vacate
• Applying to VCAT for a possession order, which is an order allowing them to take back possession of the property
• Purchasing a warrant of possession from VCAT, if it made a possession order
• Giving the warrant of possession to the police, which the police will use to evict you

Remember, it is illegal for the rental provider or agent to personally attempt to evict you [section 91P]. Only the police can evict you and they must have a valid possession order and a warrant of possession from VCAT.

First, second, third and fourth notices

A notice to vacate has no effect for the first, second, third and fourth notices to vacate for non-payment of rent in a 12-month period if you paid all the unpaid rent before the termination date in the notice. The rental provider cannot apply to VCAT for a possession order [section 91ZM(1)(c)].

If the rental provider has applied to VCAT and continues to want to go to VCAT even though you have paid off the unpaid rent, we strongly recommend you attend the hearing. VCAT must dismiss the rental provider’s application at the hearing [section 331].  Bring with you evidence that the unpaid rent was paid before the termination date to confirm to VCAT that the application must be dismissed.

The 12-month period

The first 12-month period is set from the day your tenancy starts, followed by a second 12 months, and so on [section 91ZM]. The ‘count’ for the first 4 notices to vacate for non-payment of rent restarts each time the next 12 months begins.

First, second, third and fourth notices

If you have been given first, second, third and fourth notices to vacate for non-payment of rent within the applicable 12-month period, and you have not paid the unpaid rent before the termination date, the notice will have effect. This means the rental provider can apply to VCAT for a possession order if you choose to stay beyond the termination date and seek a payment plan or make other arrangements through VCAT.

Note that the rental provider cannot apply to VCAT for a possession order until after the termination date in the notice to vacate [section 91ZM].

Fifth notice to vacate

If the rental provider has given you 5 notices to vacate in a 12-month period and you have not moved out by the termination date, the law is slightly different [section 91ZM]. You cannot be given a payment plan or referred to a financial counsellor. VCAT is also required to give a possession order if it is reasonable and proportionate to do so [section 330].

It is important to attend the VCAT hearing as technical challenges, a submission about whether it is reasonable and proportionate to make the order, and extension of time (postponement of the warrants) can still made at the hearing. It is also important that any orders that are made correctly state the amount of arrears owed.

The option to adjourn – put the application on hold – to allow for a payment plan is also not available as it was for first 4 notices to vacate [section 91ZM].

However, there is still a possibility that VCAT could dismiss or adjourn the rental provider’s application for a possession order if they do not think it is reasonable and proportionate to make a possession order [sections 91ZM and 330].

If a rental provider applies to VCAT for a possession order they must send you a copy of their application and any evidence they want to rely on at the possession order hearing.

If the rental provider applies to VCAT for a possession order, VCAT will set a hearing date. You will be notified of the time, date and place of the hearing. If you do not want to be evicted you must go to the hearing to dispute the rental provider’s claim.

If the rental provider or agent tells you that you do not need to go to the hearing because you have paid the unpaid rent (or for any other reason), you should contact VCAT on 1300 018 228 to check that the application has been withdrawn. If the rental provider has not withdrawn their application you should go to the hearing.

First, second, third and fourth notices

A notice to vacate for the first, second, third and fourth times in a 12-month period still ‘has effect’ if the unpaid rent has not been paid before the termination date in the notice. In these cases VCAT can hear an application from the rental provider for a possession order [section 91ZM].

VCAT can decide to dismiss the application, adjourn the application (put it on hold), including making a payment plan, or make a possession order [sections 91ZM and 331].

Evidence

Usually there is a reason people fall behind in their rent. Make sure you take as much evidence as you can to the hearing to show how you got behind, such as unexpected car repairs, and how you can pay off the overdue rent over time while also continuing to pay your usual rent.

This shows VCAT that there will be no loss to the rental provider if you stay on at the property and that there is no need to make a possession order.

Evidence should include details about your income and expenditure. Gather any documents that support this, such as pay slips, Centrelink payment statements, proof of rental payments and bank statements. You can also ask anyone who can support your case to give evidence at the hearing, or provide a statutory declaration if they are unable to attend.

Payment plans and financial counselling

If VCAT thinks you could pay off the overdue rent over time they can decide to adjourn the application –put it on hold – and make an order for a payment plan instead of making a possession order [section 331].

Many renters are successful in asking VCAT not to grant a possession order if they have a plan to pay back the overdue rent over a reasonable period of time.

If VCAT is not sure of your financial ability to enter a payment plan, they can put the application on hold and refer you to a financial counsellor who can help assess your financial situation [section 331].

If VCAT refers you to a financial counsellor they may ask the counsellor to write a report after their assessment. This can help VCAT decide if a payment plan should be ordered instead of a possession order [section 331].

When a payment plan is made

If VCAT decides to adjourn the application and makes an order for a payment plan, the rental provider’s application for a possession order will be put on hold, usually for 3 to 6 months.

The payment plan order will set out how much you need to pay towards the overdue rent over time to get the rent back up to date.

If you follow the VCAT order and pay your rent and overdue rent on the terms in the order, VCAT must dismiss the rental provider’s application for a possession order.  Your lease will continue as normal, and you can stay in your home [sections 331 and 91ZM].

If you do not follow the payment plan

If you do not follow the VCAT order – for example, you do not make an ordered payment, or you accumulate more overdue rent while the order is in place – the rental provider can renew their application.

This means they can take the application that has been put on hold back to VCAT and ask it to make a possession order.

If this happens VCAT will send you a notice of hearing telling you when the next hearing will be. You must go to this hearing to tell VCAT why you did not, or could not, follow the payment plan order or why you accumulated more overdue rent. If you do not attend there is a chance VCAT will make the possession order and you will be evicted.

If your financial circumstance has become worse, you can ask VCAT to make an order for a different payment plan that you will be able to better follow.

As at the first hearing, if VCAT decides that you can afford to pay the overdue rent and not get further behind with your rent, it may change your payment plan, or order a new one with different payments and time periods [section 331].

If VCAT decides you cannot afford to pay the overdue rent and your current rent without getting further behind in your rent at a possession order hearing, or a renewed possession order hearing, they will consider if it is reasonable and proportionate to make a possession order that that rental provider could use to evict you [section 330].

Fifth notice to vacate

The rental provider can apply to VCAT for a possession order if you have been given a fifth notice to vacate in a 12-month period and you have not moved out by the termination date, even if you paid the unpaid rent before the termination date [section 91ZM(2)].

If the rental provider does apply to VCAT for a possession order, VCAT must make an order if it is reasonable and proportionate to do so [section 330].

The option to refer you to a financial counsellor is not available for the fifth notice to vacate. The option to adjourn – put the application on hold – to allow for a payment plan is also not available as it was for first 4 notices to vacate [section 91ZM].

However, there is still a possibility that VCAT could dismiss or adjourn the rental provider’s application for a possession order if they do not think it is reasonable and proportionate to make a possession order [sections 91ZM and 330].

Before making a possession order which the rental provider can use to end your lease and evict you, VCAT must decide whether it is ‘reasonable and proportionate’ to make the order.

VCAT must consider the impact a possession order would have on you, any of your co-renters and the rental provider [section 330].

VCAT must also consider a range of factors including:

• The hardship you and your household may suffer if a possession order is made
• The hardship of other parties such as the rental provider if a possession order is not made
• The nature, frequency and duration of overdue rent that led to the notice to vacate
• Whether the amount of rent overdue is trivial or minimal
• Any family violence or personal violence intervention orders or related matters
• Whether the breach to pay rent on time was caused by someone else who is not a renter
• Whether the breach has been fixed, or as much as it practically could be, or whether it soon will be. For example, whether attempts have been made to get the rent back up to date
• The effect on other renters
• Whether any other order by VCAT or other course of action is reasonably available instead of ending the tenancy. For example, could a payment plan be ordered instead?
• The behaviour of the rental provider
• Anything else VCAT thinks is relevant [section 330A]

If a possession order is made the rental provider can purchase a warrant of possession from VCAT, which VCAT sends to the police, who can use it to evict you [section 351].

At the possession order hearing, if a possession order is made, you can ask VCAT to postpone issuing the warrant of possession.  The request must occur in the hearing when the possession order is being made. This delays the time that the police can execute the warrant to evict you. VCAT can postpone a warrant for up to 30 days [section 352].

In deciding whether or not to postpone a warrant, VCAT will consider the hardship you and your household may suffer if the warrant is not postponed and the hardship the rental provider may suffer if the warrant is postponed [section 352].

You should take any evidence of hardship to the possession order hearing, such as proof that you have applied for other rental properties, medical certificates, and letters from support workers.

Remember you are responsible for the rent while you live in the property and this includes any extra time you may live there after a possession order is made or postponed by VCAT.

For more information see our Eviction page.

If you have been given a notice to vacate for non-payment of rent and you move out the rental provider is not entitled to claim compensation from you for any loss of future rent they might have received from you if they had not given you the notice to vacate [section 213(3)].

For more information contact us, your local Tenancy Assistance and Advocacy Program (TAAP) service, Tenancy Plus provider, or Community Legal Centre.

Eviction
Applying to VCAT
Financial hardship