Eviction

You cannot be evicted unless the rental provider (landlord) follows all the legal steps. The information on this page covers the regular steps for eviction.

Legal steps for eviction

Before you can be evicted, the rental provider must undertake all these steps:

  1. Give you a valid notice to vacate.
  2. Apply to the Victorian Civil and Administrative Tribunal (VCAT) for a possession order.
  3. If VCAT made a possession order, purchase a warrant of possession from VCAT.
  4. Give the warrant of possession to the police, which the police will use to evict you.

The rental provider cannot have you evicted until they have taken these 4 steps.

The rental provider or their agent cannot lock you out or personally carry out an eviction. Only the police can evict you and only when they are acting on a warrant of possession.

Applications for possession orders

A rental provider can apply to VCAT for a possession order to allow them to take back possession of the property.

However, before they can make this application they must have first given you a notice to vacate [section 322]. Note that on this page sections in brackets, such as [section 322], refer to sections in Victoria’s Residential Tenancies Act 1997.

See our page, Notice to vacate for more information, including information on the reasons notices to vacate can be given, minimum notice periods, which notices require additional documentary evidence, when a notice has no effect and challenging a notice to vacate.

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.

Overdue rent

In addition to reviewing the information on this page, see our page, Overdue rent if you have received a notice to vacate for rent arrears and the rental provider has applied to VCAT for a possession order.

When the application can be made

If the rental provider has given you a notice to vacate for non-payment of rent, they can only apply for a possession order if you have not moved out by the termination date in the notice to vacate [section 91ZM].

For all other notices to vacate they can apply any time after they have given you the notice. However, VCAT cannot hear the application until after the termination date in the notice to vacate [sections 322 and 329].

VCAT hearings

If the rental provider applies to VCAT for a possession order, it will set a date for a hearing to occur. The hearing date cannot be before the termination date in the notice to vacate [section 329].

You will be notified of the time, date and place of the hearing. You must go to the hearing to dispute the rental provider’s claim if you do not want to be evicted.

‘Reasonable and proportionate’

If VCAT decides the rental provider has proved they had grounds to give you a notice to vacate, it must then decide whether it is ‘reasonable and proportionate’ to end your tenancy.

VCAT must consider the impact a possession order would have on:

  • You
  • Any co-renters who live with you
  • The rental provider
  • Neighbours or other people who may be, or were, affected by your acts or behaviour [section 330].

VCAT must also consider a range of factors [section 330A] 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 any conduct that led to the notice to vacate
  • Whether the breach is trivial or minor
  • Whether the breach was caused by someone else who is not a renter
  • Whether the breach has been fixed, as much as it practically could be, or soon will be
  • The effect of your conduct on other renters
  • 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
  • The behaviour of the rental provider
  • Anything else VCAT thinks is relevant

VCAT orders

If VCAT decides it is ‘reasonable and proportionate’ to make a possession order, taking into consideration factors including those outlined above, they must make a possession order [section 330].

If VCAT decides it is not ‘reasonable and proportionate’ to make a possession order they could dismiss the rental provider’s application or make a different order if a different order may be more appropriate. [330, 330A]

For example, in some circumstances VCAT could put on hold (adjourn) a rental provider’s application for a possession order based on a notice to vacate for non-payment of rent and make an order for a payment plan instead [section 331]. For more information see our page, Overdue rent.

Remember however, if you do not go to the hearing, it is most likely that VCAT will grant a possession order to the rental provider.

Compliance orders instead of possession orders

In some circumstances where a rental provider has applied for a possession order, VCAT may decide to make a compliance order instead.

VCAT may consider doing this where a rental provider has applied for a possession order after giving a notice to vacate to a renter for:

  • Causing serious damage, either deliberately or recklessly [section 91ZI]
  • Causing danger to neighbours, the rental provider, or agent, or a contractor or employee of the rental provider or agent [section 91ZJ]
  • Being threatening or intimidating to the rental provider, or agent, or a contractor or employee of the rental provider or agent [91ZK]

VCAT may decide that instead of making a possession order that would end the tenancy, it may be more reasonable and proportionate to dismiss the rental provider’s application and instead make a compliance order [section 332A]. This is an order telling you that you need to comply with your duties under the law. For example, it could tell you to fix the issue that resulted in you getting a notice to vacate and not commit the same breach of your duties again [section 332A].

Warrants of possession

If the VCAT Member, the person who hears and decides cases, grants a possession order, the rental provider has up to 6 months to purchase the warrant of possession [section 351], which gives the police the power to evict you.

Once purchased, the warrant of possession is valid for a fixed time, usually 14 days.

However, if the possession order requires you to vacate the property immediately the rental provider can purchase a warrant of possession on the same day as the possession order hearing [section 351]. If they did that and gave the warrant straight to the police, you could be evicted on the same day as the possession order hearing.

If your rental provider is granted a possession order, you can contact your local police to find out when they plan to carry out the eviction.

If you think you are likely to be evicted, it is a good idea to make arrangements so you will have somewhere to stay, especially if you may be evicted on the same day or at short notice.

If you have nowhere to go, there are housing services that may be able to help you with crisis accommodation. You can find these services via the Victorian Government’s advice service, on a 24-hour toll-free number –  1800 825 955 – or online.

Crisis accommodation

Postponing a warrant of possession

At the possession order hearing, if a possession order is made you can ask VCAT to postpone, or delay, issuing the warrant of possession. This delays the time that the police can execute the warrant to evict you [section 352].

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
  • The hardship the rental provider may suffer if the warrant is postponed [section 352]

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

Exceptions

You cannot ask for a warrant of possession to be postponed in some circumstances.

You cannot ask for a postponement where a possession order has been made based on a notice to vacate for:

  • Causing serious damage, either deliberately or recklessly [section 91ZI]
  • Causing danger to neighbours, the rental provider, or agent, or a contractor or employee of the rental provider or agent [section 91ZJ]
  • Being threatening or intimidating to the rental provider, or agent, or a contractor or employee of the rental provider or agent [section 91ZK]
  • Where the property is destroyed or unfit for human habitation [section 91ZL]

While you cannot ask for a warrant of possession to be postponed, you can still ask VCAT to set a vacate date in the possession order that gives you a similar postponement [section 352]. VCAT can set the vacate date in a possession order 30 days from the date the order is actually made, which can give you more time to move out [section 333].

Review hearings

If you find out that a possession order has been granted but you did not go to the hearing, you can apply to VCAT for a rehearing or a review [section 120, Victorian Civil and Administrative Tribunal Act 1998]. You must do this before the police evict you. This is because once you have been legally evicted VCAT has no power to allow you back into the property.

If possible, you should apply for an urgent review hearing by going to VCAT in person. If you live in the country or cannot get to VCAT, you should phone VCAT on 1300 018 228 and ask them how to apply for a review hearing, or contact us for advice.

When you apply for a review hearing, you should ask VCAT to contact the police and ask them to put a stop on the warrant until further notice. You should also call the police yourself to confirm this.

At the review hearing you will need to convince VCAT that you had a good reason for not going to the original hearing. If it accepts your explanation, they will set aside their earlier decision and allow the matter to be reheard. There is no fee for applying for a review hearing.

Illegal evictions

It is illegal for a rental provider or agent, or anyone acting on their behalf, to attempt to physically evict you or to change the locks. Only the police can carry out an eviction.

If the rental provider or agent threatens to evict you, you should apply to VCAT for a restraining order. If the rental provider or agent shows up at the property and attempts to evict you, you should call the police immediately.

If you have been illegally evicted, you should immediately apply – in person if possible – for an urgent hearing at VCAT. It can order the rental provider to let you back into the property.

You should also lodge a complaint with the Director of Consumer Affairs Victoria. There are harsh penalties for individuals and companies that are convicted of carrying out an illegal eviction [section 91P].

You can also seek compensation for any inconvenience, costs, loss or damage to your goods caused by the rental provider’s illegal actions.

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