Overdue rent
- Published:
This information is a guide and should not be used as a substitute for professional legal advice.
Rental Dispute Resolution Victoria (RDRV) now handles some rental disputes instead of VCAT. While we update our website, see our overview on going to RDRV.
Summary
In community housing, you either pay market rent or rebated rent. To learn more about rebated rent, including how and how often it is assessed, and how you can challenge an assessment, see our page on community housing. Market rent should not be more than the amount stated in the lease (officially called the rental agreement), and if the community housing provider wants to increase the rent, there are rules it must follow.
It is important to note that any service charge for services or facilities that are made available to you – such as water, central heating or laundry – is separate to your rent and must not form part of your rent amount.
You are responsible for paying your rent on time and according to your lease. If more than one person is named on the lease, you are all equally responsible for paying rent. This means that if one renter doesn’t pay their share, all co-renters are still responsible for this, even if they have paid their share.
If you have 14 days or more of unpaid rent, this is known as being in ‘rent arrears’ (overdue with your rent). At this point, your community housing provider can give you a 14-day ‘notice to vacate’ for non-payment of rent. The 14 days of unpaid rent could be consecutive (days in a row), or they could have gradually added up to 14 days because you underpaid your rent over a longer period.
If the notice to vacate is not legally valid, then you can challenge it at the Victorian Civil and Administrative Tribunal (VCAT). The notice to vacate may be found to be legally invalid if it was not created or delivered to you according to the legal rules. Examples include if it wasn’t signed by your community housing provider, proper reasons weren’t given, certain documents weren’t provided with the notice to vacate or if it was not sent to you correctly – for example, by ‘regular post’ instead of ‘registered post’.
Even if the notice to vacate is legally valid, it does not necessarily lead to eviction. Before you can be evicted, your community housing provider must first apply for a ‘possession order’ from VCAT. VCAT then decides what to do next. VCAT may adjourn (delay) your community housing provider’s application and put you on a payment plan if you can pay the overdue rent over a reasonable period of time. Or VCAT may end your lease if it is ‘reasonable and proportionate’ to do so. If VCAT ends your lease, it may also give you more time before you have to move out.
If the notice to vacate is legally valid, but you have paid back the unpaid rent on or before the move-out date (termination date) listed on the notice to vacate, VCAT must dismiss your community housing provider’s application to evict you. However, if this is your fifth notice to vacate for unpaid rent in the relevant 12-month period, VCAT will instead decide whether it is ‘reasonable and proportionate’ to evict you.
What is community housing?
Community housing is a house, unit or apartment you rent from a registered not-for-profit organisation. Find out more on our page about community housing. If your community housing is also a rooming house, please select the ‘rooming house’ rental type at the start of this page.
Steps for dealing with overdue rent
There are steps that you can take before your rent becomes overdue. If you know that you or your household are going to be late with a rent payment, or cannot pay the full amount, it can be a good idea to speak to your community housing provider, as early as possible, to discuss when you might be able to catch up on your rent payments. However, your community housing provider does not have to agree to this. If you do agree to anything, get it in writing.
If you do receive a notice to vacate for unpaid rent, and you don’t want to move out, there are steps you can take. These steps depend on various factors, including whether:
- The notice to vacate is legally valid
- You have paid back or have capacity to pay the unpaid rent
- You have previously received notices to vacate for unpaid rent
- VCAT thinks you may be suitable for a payment plan
During the notice to vacate process, your community housing provider must consider the impact on your human rights under the Charter of Human Rights and Responsibilities Act 2006. VCAT can also look at this when deciding whether to make a possession order (the next stage of the legal process). Learn more in the information on this page about your community housing provider and your human rights.
Avoid being late with or underpaying your rent
There are steps you can take to help you avoid being late with or underpaying your rent.
Financial counsellors provide independent and non-judgemental information, advice, advocacy and support to people experiencing or at risk of financial difficulty. Government and other agencies also offer rent assistance and other financial programs that may help you.
If you need assistance with other matters that are affecting your ability to pay rent, such as family or personal violence or gambling, there are also services that can help.
To learn more, visit our page on financial hardship.
If you are paying rebated rent, your community housing provider will have policies about what information you need to supply in order to accurately calculate your rent. You should be able to view these policies on your community housing provider’s website, or you can request a copy.
Things that you must disclose and keep up to date include who is living with you in your rental home (including if any children become adults) and any Centrelink benefits you are eligible for (even if you don’t claim them).
If you are on a low income or a pension, it may be easier to pay your rent on time by paying fortnightly instalments when you receive your income. While your lease (officially called a rental agreement) may require a monthly rent payment, you can ask, in writing, whether your community housing provider will agree to a fortnightly payment.
It is important to remember that if your lease requires you to pay monthly, this is by calendar month, which is usually 2 or 3 days more than 2 fortnights (28 days). To avoid falling into rent arrears (getting behind in your rent), you need to pay enough rent to cover the extra days each month.
If you receive a pension or benefit from Centrelink, your rent can be deducted from it and paid directly to your community housing provider (officially called the rental provider) using Centrepay, which is a payment system administered by Centrelink (Services Australia). If you pay your rent via Centrepay, you must cancel the payments when you move out.
Visit the Services Australia website for more information on Centrepay.
Rent receipts 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 your community housing provider and ask for a copy of your rent payment record, which is often called a rent ledger.
Utility providers – such as for electricity, water and gas – are required to provide reasonable payment plans if you are struggling to pay your bills. Being on a payment plan may make it easier to pay your rent.
If you are on a payment plan with a utility provider, don’t switch providers until the debt is fully paid. If you change providers before fully paying the debt, you may have to pay it immediately.
If you receive Centrelink benefits, you may also be eligible for the Victorian Government’s Utility relief grant scheme.
Here’s what you can do next
- Talk to your community housing provider about your overdue rent. A conversation can sometimes help resolve an issue. If you agree to anything, get it in writing
- Visit Justice Connect’s Dear Landlord website. It has self-help tools for renters who have fallen behind in rent or are worried they might miss a payment
- Visit the National Debt Helpline’s webpage about keeping on top of your rent
- Consider contacting Tenants Victoria’s free financial counselling service
- If you need advice or support, see the information on this page about how to get help
Check if the notice to vacate is valid
If you have 14 days or more of unpaid rent, your community housing provider can give you a 14-day notice to vacate. The 14 days of unpaid rent could be consecutive (days in a row), or they could have gradually added up to 14 days if you have underpaid your rent over a longer period.
If you do receive a notice to vacate, it may not be legally valid if:
- It was not created in the right way – for example, it is not signed or has errors, such as not naming you correctly
- It was not delivered to you in the right way
- You had not reached 14 full days of unpaid rent at the time the notice to vacate was given to you. To check your rent calculations, use Consumer Affairs Victoria’s rent calculator
- The notice to vacate did not give you a clear 14 days before the termination date (date you need to move out)
- The amount of unpaid rent listed on the notice to vacate is not accurate. See the information on this page about what to do if you believe your rental rebate calculation is incorrect or if there has also been a rent increase
If you receive a notice to vacate, but are unsure whether it is valid, or what to do next, seek legal advice. Tenants Victoria and other organisations can help. See the information on this page about how to get help.
This is the official notice to vacate form from the Consumer Affairs Victoria website: Notice to vacate to renter/s of rented premises [Word]
The official notice to vacate form must be delivered to you:
- In person
- Electronically (such as email), but only if you have agreed to receive notices this way, or
- By registered post
It cannot be sent by ordinary (regular) post or left in your letterbox or under your door or handed to someone else.
To learn more, see our page on notices to vacate and eviction.
The notice to vacate must:
- Be in the correct form, which is Consumer Affairs Victoria’s: Notice to vacate to renter/s of rented premises [Word]
- Be addressed to you
- Be signed and dated by your community housing provider
- Clearly say why you are being asked to leave, and the reason must be legally valid. In this case, the reason is that you have 14 days or more of unpaid rent
- Say the date they want you to leave by (the termination date). This cannot be less than 14 days from the date of the notice to vacate
- List the amount of rent that is owing
- Have any necessary supporting documents attached. See the Consumer Affairs Victoria website for information on what evidence must be provided with a notice to vacate
To learn more, see our page on notices to vacate and eviction.
If you believe that you have received a notice to vacate for unpaid rent due to a recent rent increase, you should check whether the rent increase is legally valid. This includes whether the community housing provider told you about the rent increase in the right way (in writing and using the correct form) and that it was allowed to make the increase. Learn more on our page on rent increases.
If you believe that an invalid rent increase is why you have received a notice to vacate for unpaid rent, you should request that VCAT adjourn (delay) any hearing about your notice to vacate until you have had a chance to challenge your rent increase.
If the rent increase is found to be legally invalid and, as a result, the amount of unpaid rent listed in the notice to vacate is significantly incorrect, VCAT may decide that the notice to vacate is invalid and dismiss your community housing provider’s application to evict you.
If you are unsure about whether your rent increase is legally valid, Tenants Victoria and other organisations can help. See the information on this page about how to get help.
If you receive a notice to vacate for unpaid rent, but you believe that the amount listed on the notice is incorrect because your rental rebate calculation is incorrect, you should ask VCAT to adjourn (delay) the possession order hearing. You can then lodge an internal appeal with your community housing provider about your rental rebate calculations. If you are not happy with the outcome, you can appeal to the Housing Registrar. To learn more about how to lodge an internal appeal, see our page on community housing.
If you do lodge an appeal and it is found that your rental rebate was miscalculated and this means that the amount listed in the notice to vacate is significantly incorrect, VCAT may decide that the notice to vacate is invalid and dismiss your community housing provider’s application to evict you.
Challenge an invalid notice to vacate at VCAT
If you believe that the notice to vacate is not legally valid, you can contact your community housing provider to discuss it or send it a letter. If you agree to anything, get it in writing.
Tenants Victoria has a template letter with different points you may wish to raise, depending on your situation. These include informing your community housing provider that it has given you a notice to vacate that is not legally valid, asking it to stop harassing you to leave, and asking it to stop threatening to evict you illegally.
Download our template letter: Letter about an invalid notice to vacate [Word].
Sending this letter is optional, and it may result in a new notice to vacate being issued. If you don’t send a letter, or if you send one and your community housing provider does not cooperate, you can challenge your notice to vacate at VCAT when your community housing provider applies for a hearing (known as a ‘possession order hearing’). Your community housing provider can only apply to VCAT for a possession order once the termination date on the notice to vacate has passed.
At this hearing, VCAT may dismiss your community housing provider’s application for a possession order to evict you if:
- Your community housing provider does not follow the rules for preparing and sending you the notice to vacate, or
- Your community housing provider cannot prove the required facts about the overdue rent, and
- This is not your fifth notice to vacate for unpaid rent within the relevant 12-month period
When deciding whether a notice to vacate for unpaid rent is legally valid, VCAT will check:
- If the notice to vacate is in the correct form
- If the notice to vacate was served (given or delivered to you) in the right way
- If you were given at least 14 days notice of the termination date on the notice to vacate
- If you had 14 full days of unpaid rent at the time the notice to vacate was given to you
To learn more about challenging a notice to vacate, see our page on notices to vacate and eviction. See also our page on going to VCAT.
If VCAT dismisses or ‘strikes out’ your community housing provider’s application because it decides that the notice to vacate is not valid, you can stay in your home.
If VCAT decides the notice to vacate is not valid (which means you can stay in your home), it can still make a separate order requiring you to pay back the unpaid rent, including putting you on a payment plan. This order must be followed. If not, you may be ordered to pay additional compensation on top of the unpaid rent. You could also receive a new 14-day notice to vacate from the community housing provider for not complying with the order.
If the notice to vacate is valid
If the notice to vacate you have received for non-payment of rent is valid (including if VCAT decides this) this does not necessarily mean that you will be evicted.
What happens next depends on several factors, including whether:
- You have paid back the overdue rent before the termination date on the notice to vacate
- This is your fifth notice to vacate for unpaid rent in the relevant 12-month period
- VCAT believes that you could follow a payment plan to pay back the overdue rent
- If it is reasonable and proportionate for an eviction to occur. See the information on this page about what is reasonable and proportionate
If you need legal advice, Tenants Victoria and other organisations can help. See the information on this page about how to get help.
Even if the notice to vacate is legally valid, if you have paid all overdue rent before the termination date on the notice to vacate, and are up to date with your current rent, VCAT must dismiss your community housing provider’s application to evict you because the law says the notice is of no effect.
However, if VCAT sets a hearing date, it is still very important that you attend. You should bring evidence with you that you have paid back all overdue rent before the termination date on the notice to vacate. For advice, including information about gathering evidence, see VCAT’s webpage about preparing for a hearing. See also the information on this page about bringing evidence to VCAT.
Note: This is not the process if this is your fifth notice to vacate for overdue rent in the relevant 12-month period. See the information on this page about what happens if this is your fifth notice to vacate.
If this is your fifth notice to vacate for overdue rent in the relevant 12-month period and you have not moved out by the date listed on the notice to vacate, the law is slightly different. The first 12-month period starts on the first day of your lease (officially called the rental agreement).
If you do not move out before the termination date on the notice to vacate, your community housing provider can apply to VCAT for a possession order (the next stage of the legal process) once the termination date on the notice to vacate has passed. To learn more, see our page on notices to vacate and eviction.
VCAT is not obliged to put you on a payment plan or refer you to a financial counsellor, even if you have paid back the overdue rent and are currently up to date with your rent payments. Instead, VCAT will decide whether it is reasonable and proportionate to evict you. See the information on this page about how VCAT decides what is reasonable and proportionate.
It is very important to attend the VCAT hearing where this is decided. If you need legal advice, Tenants Victoria and other organisations can help. See the information on this page about how to get help.
During the notice to vacate process, your community housing provider must consider the impact on your human rights under the Charter of Human Rights and Responsibilities Act 2006. VCAT can also look at this when deciding whether to make a possession order. Learn more in the information on this page about your community housing provider and your human rights.
If the notice to vacate is legally valid, and you cannot or have not paid the overdue rent before the termination date on the notice to vacate, then your community housing provider can apply to VCAT for a possession order (the next stage of the legal process).
Your community housing provider cannot apply to VCAT for a possession order until after the termination date on the notice to vacate. To learn more, see our page on notices to vacate and eviction.
At a possession order hearing, you can ask VCAT for a payment plan. If VCAT thinks you could pay off the overdue rent over time, while not getting behind in your current rent, it can adjourn (delay or put on hold) the possession order application and make an order for a payment plan.
Many renters are successful in this application 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 follow a payment plan, it can put the application on hold and refer you to a financial counsellor who can help assess your financial situation. If VCAT refers you to a financial counsellor, it may ask the counsellor to write a report after their assessment. This can help VCAT decide if it should make an order for a payment instead of a possession order.
Note: The rules are different if this is your fifth notice to vacate in the relevant 12-month period. See the information on this page about what happens if this is your fifth notice to vacate for unpaid rent.
If you need legal advice, Tenants Victoria and other organisations can help. See the information on this page about how to get help.
Bring evidence to VCAT
Usually there is a reason people fall behind in their rent. Make sure you take as much evidence as you can to the VCAT possession order hearing to show how you got behind, such as unexpected car repair expenses or any hardship you are experiencing, 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 your community housing provider if you stay at the property and that it does not 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.
If VCAT decides to make an order for a payment plan, it will put the application for a possession order 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 up to date. You will also need to stay up to date with your current rent obligations.
If you follow the payment plan by paying back your overdue rent and staying up to date with your current rent, as required by the VCAT order, VCAT must dismiss your community housing provider’s application to evict you. If this happens, your lease (officially called the rental agreement) will continue as normal, and you can stay in your home. However, for this to happen, you need to avoid developing additional overdue rent during the payment plan period (or any time from the date of the original application by your community housing provider to the date of the next hearing at the end of the payment plan).
If you do not follow the VCAT order for a payment plan – for example, you do not make an ordered payment, or you end up with more overdue rent while the order is in place – your community housing provider can renew its application for 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 ended up with 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 situation has become worse, you can ask VCAT to make an order for a different payment plan that you can follow more easily.
As at the first hearing, if VCAT decides that you can afford to pay the overdue rent and not get further behind with your current rent, it may change your payment plan or order a new one with different payments and time periods.
If VCAT decides you cannot afford to pay the overdue rent and your current rent without getting further behind in your rent, it will decide if it is reasonable and proportionate to make a possession order that your community housing provider can use to evict you. See the information on this page about what is reasonable and proportionate.
If VCAT decides not to put you on a payment plan or refer you to financial counselling, before it can make a possession order it must consider a range of factors and decide whether it is reasonable and proportionate for your community housing provider to evict you.
See the information on this page about how VCAT decides what is reasonable and proportionate.
The factors that VCAT will consider in deciding whether it is reasonable and proportionate to make a possession order (for eviction) include:
- The hardship you and your household may suffer if it makes a possession order
- The hardship other parties, such as your community housing provider, may suffer if it does not make a possession order
- The nature, frequency and duration of overdue rent that led to the notice to vacate
- Whether the total amount of overdue rent is small
- Any family violence or personal violence intervention orders or related matters
- Whether you or someone else who is not a renter caused the failure to pay rent
- Whether you have paid back the unpaid rent or are close to paying it back, or you have made attempts to pay it back
- Whether it can make any other orders, instead of ending your lease (officially called the rental agreement)
- The behaviour of your community housing provider
- Anything else it thinks is relevant
If VCAT makes a possession order and allows the eviction, it may allow you more time to move out.
It is important that you know your rights during the eviction process. These rights include that only the police can carry out an eviction, not your community housing provider. See our page on notices to vacate and eviction.
If you need legal advice, Tenants Victoria and other organisations can help. See the information on this page about how to get help.
Here’s what you can do next
- Watch our video on going to VCAT and view our going to VCAT infographic [PDF]
- See VCAT’s advice on preparing for a hearing, which includes information about gathering evidence
- Consider contacting Tenants Victoria’s free financial counselling service
- If you need advice or support, see the information on this page about how to get help
Particular circumstances
Unpaid rent when a renter has died
If a renter is the only person named on the lease, they are a sole renter. If others are named on the lease, they are co-renters.
When a co-renter dies, the other renters are responsible for the rent.
When a sole renter dies, their next of kin or legal representative can deal with your community housing provider to end the lease. This can involve:
- Sending a notice of intention to vacate, or
- Agreeing with your community housing provider on a date that the lease will end, or
- Handing back the vacant property to your community housing provider (removing all belongings and giving back the keys)
Rent does not need to be paid after the property has been vacated or otherwise agreed with your community housing provider, even if it is before the end of a fixed-term lease.
Learn more on our page about ending or breaking your lease.
If a relative or someone else was living with the renter in the rental property, but their name was not on the lease, if eligible they could apply to have the lease transferred into their own name, upon the death of the renter. To learn more about this process, see our page on lease transfers and subletting.
Your community housing provider and your human rights
Under the Charter of Human Rights and Responsibilities Act, your community housing provider is required to consider your human rights when it makes decisions. It should consider your human rights:
- Before it decides to give you a notice to vacate
- When it applies to VCAT and asks for a possession order
- When it seeks to have the police evict you (gets a warrant of possession from VCAT)
These considerations are also required under your community housing provider policies. The policies ensure that the focus is on trying to resolve the issues that led to the notice to vacate rather than evicting you. Policies should be available on your community housing provider’s website, or you can request a copy.
If you believe that your community housing provider has not followed its own policies or considered your human rights, seek legal advice. This page has information on how to get help. See also the information on appeals and complaints on our page about community housing.
VCAT can also consider the impact on your human rights when deciding whether to make a possession order.
Get help and other resources
If you need support to deal with overdue rent or a notice to vacate for unpaid rent, help is available.
Tenants Victoria services
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Social Housing and Rooming House Priority Line
For Victorian renters in public housing, community housing and rooming houses.
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Financial counselling
For all Victorian renters.
Other organisations
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Anika Legal
For Victorian renters who cannot afford a private lawyer.
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Federation of Community Legal Centres
For all Victorians.
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Tenancy Assistance and Advocacy Program (TAAP)
For Victorian renters in private rentals, rooming houses and caravan parks who are in financial hardship or affected by family violence.
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Victoria Legal Aid
For all Victorians.
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Consumer Affairs Victoria
For all Victorians.
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Victorian Civil and Administrative Tribunal (VCAT)
For all Victorians.
There are resources to assist you with understanding more about overdue rent.
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Letter about a notice to vacate that is not legally valid
This Tenants Victoria template letter includes points you may wish to raise with your community housing provider after receiving a notice to vacate that you think is not legally valid.
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Dear Landlord self-help tool
Dear Landlord is a free online self-help tool by Justice Connect, which can help you understand your rights, guide you through your options, and help you take action, including if you are struggling with your rent.
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Notices to vacate factsheet
Tenants Victoria has a handy factsheet summarising information about notices to vacate.
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Consumer Affairs Victoria webpage
Consumer Affairs Victoria has an informative webpage about overdue rent.
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Calculate your rent
Consumer Affairs Victoria has a calculator to help you work out the rent you pay daily, weekly, fortnightly, monthly, 6-monthly and yearly.
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Step-by-step video on going to VCAT
This Tenants Victoria video walks you through the entire VCAT process – from gathering the necessary documents to understanding what happens during a hearing.
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Prepare for a VCAT hearing
VCAT has step-by-step information on how to prepare for a hearing.
The Residential Tenancies Act 1997 is Victoria’s main law for renting. It describes the rights and duties of renters and landlords in numbered sections.
The sections in this list relate to overdue rent (rent arrears) in community housing. Click on a link to see more about the section.
- Section 42 – Where and how is rent to be paid?
- Section 57 – Homes Victoria or registered housing agency may impose service charge
- Section 91ZM – Notice to vacate for non-payment of rent
- Section 91ZN – Termination after death of a sole renter
- Section 213 – Compensation for unpaid rent
- Section 330 – VCAT order for a possession order
- Sections 330A – What is reasonable and proportionate
- Section 331 – Application for possession may be dismissed or adjourned
- Section 352 – Postponement of the warrant of possession
- Section 353 – Immediate issue of warrant if failure to comply during postponement
- Section 452 – General applications to the Tribunal
- Section 506 – Service of documents
The Residential Tenancies Regulations 2021 provide more detail and definitions, and specify updates to the Residential Tenancies Act.
Your community housing provider policies
Your community housing provider will have policies on rent setting for both market rent and rebated rent. You should be able to view these policies on your community housing provider’s website, or you can request a copy.
