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unpaid rent (or for any other reason), you should contact VCAT on 1300 018 228 to check that the application has been withdrawn. If the rental provider has not withdrawn their application you should go to the hearing.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