Notices to vacate and eviction

The only reasons you can be asked to leave immediately are:

• Your home is destroyed or unfit to live in (section 91ZL)
• You or one of your visitors:
  • Seriously damaged the property, either intentionally or recklessly (section 91ZI)
  • Endangered your neighbours or someone working for Homes Victoria (section 91ZJ). For more on what ‘endanger’ means, see our page about the Consumer Affairs Victoria guidelines. These are official guidelines that set out how renters and rental providers (such as Homes Victoria) must follow the rental laws

If you get an immediate notice to vacate, contact us for urgent advice. This page has information about getting help.

You can be given a minimum of 14 days notice to vacate if you:

• Are 14 days or more overdue in your rent (section 91ZM). In many cases you should be able to get an affordable repayment plan rather than being evicted. See more on our page about overdue rent
• Threatened or intimidated someone working for Homes Victoria (section 91ZK)
• Didn’t follow a compliance order from VCAT (section 91ZO)
• Sublet your home, or part of it, without consent from Homes Victoria (section 91ZV)
• Used, or let others use, your home for illegal activity (section 91ZQ)
• Breached your duty as a renter after receiving 2 previous breach notices for the same duty (section 91ZP)
• Let a child under 16 live at your home when your lease (officially called a rental agreement) said children under 16 couldn’t live there (section 91ZT)
• Committed, or let others commit, drug offences like trafficking, supplying and cultivating (section 91ZR)
• Misled Homes Victoria about your eligibility for public housing (section 91ZU)

You can be given a minimum of 28 days notice to vacate if you keep a pet at home after VCAT has said it needs to go (section 91ZZG).

This is only for pets brought home after new pet laws started on 2 March 2020. See more on our page about pets and your tenancy.

You can be given a minimum of 60 days notice to vacate if:

• Your fixed-term lease (officially called a rental agreement) is less than 6 months and Homes Victoria wants you to move out when it ends (section 91ZZD). You must receive the notice to vacate at least 60 days before the last day of your lease
• The property has been, or is being, sold (section 91ZZB)
• The property is to be repaired, renovated or reconstructed (section 91ZX)
• The property is to be demolished (section 91ZY)
• The property is to be used for a business instead of for renting (section 91ZZ)
• The property is needed for a public purpose (section 91ZZC)

Homes Victoria must attach specific supporting documents to the notice as proof. Consumer Affairs Victoria lists these documents on its page about notices to vacate in rental properties. If the supporting documents are not attached, you may challenge the validity of the notice.

If you have a fixed-term lease (officially called a rental agreement) of 6 months or more and Homes Victoria wants you to move out when it ends, it needs to give you a 90-day notice to vacate (sections 91ZZD and 91ZZDA). It must give this to you at least 90 days before the last day of your lease.

You can wait until Homes Victoria applies to VCAT for a possession order before you challenge the notice to vacate.

The possession order hearing cannot be held until after the date you were asked to leave has passed.

You should go to the hearing so you can have your say. You don’t have to pay a fee to do this.

Homes Victoria must prove to VCAT that the notice to vacate is legally valid. Before the hearing, it has to send you a copy of its application and anything else it wants to use as evidence. This may include a community impact statement about how your actions affected others.

For some notices to vacate, you can apply to VCAT to challenge the notice before there is a possession order hearing. This is often called a ‘pre-emptive challenge’.

You can do this if you are asked to leave because:

• The property is to be repaired, renovated or reconstructed (section 91ZX)
• The property is to be demolished (section 91ZY)
• The property is to be used for a business instead of for renting (section 91ZZ)
• The property has been, or is being, sold (section 91ZZB)
• The property is required for a public purpose (section 91ZZC)

You can also challenge a notice before a possession order hearing if:

• You believe you received it because of direct discrimination. See more on our website about discrimination
• The reason given in the notice was caused by someone being violent towards you. See more on this page about notices to vacate when there is family or personal violence
• You believe you received it because you reported damage, asked for repairs or stood up for your rights as a renter, and the reason given in the notice is that you or one of your visitors threatened or intimidated someone working for Homes Victoria, or because your initial fixed-term lease (officially called a rental agreement) is ending. If the reason is because your lease is ending, you must apply to VCAT within 21 days if your lease is less than 6 months, or within 28 days if your lease is longer than 6 months

For all other pre-emptive challenges, you need to apply to VCAT within 30 days of getting the notice. Find out more on our website about applying to VCAT.

With a pre-emptive challenge, you have to prove at a VCAT hearing that the notice is not legally valid.

If VCAT agrees it is not valid, you won’t have to move out.

If VCAT decides it is valid, Homes Victoria must still apply for a possession order. You can go to the possession order hearing but you cannot raise the same arguments you used for the pre-emptive challenge at this hearing. You can, however, tell VCAT other reasons why you should stay.

Challenging a notice to vacate pre-emptively is just an option – you don’t have to do it. If you prefer, you can wait until Homes Victoria applies for a possession order, then challenge the notice to vacate at the hearing.

If you want to know if you can make a pre-emptive challenge, you can contact Tenants Victoria or another organisation for advice. See the information on this page about where to get help.

If VCAT decides the notice to vacate is not valid, it will dismiss the application for a possession order. Your lease (officially called a rental agreement) will continue as normal. You won’t have to move out.

If VCAT decides the notice to vacate is valid, it doesn’t necessarily mean you will have to move out. The next important step is for VCAT to consider if it would be ‘reasonable and proportionate’ to make a possession order and end your tenancy.

To do this, it considers the impact ending your tenancy would have on:

• You and any dependants or children who live with you
• Any co-renters who live with you
• Homes Victoria
• Any neighbours or other people who may be, or were, affected by your actions

VCAT must also consider:

• Your behaviour and the behaviour of Homes Victoria
• The seriousness of the problem, how long it has been going on and whether it can be fixed
• Whether someone else was responsible, and if family or personal violence was involved
• Whether any other renters have been affected
• Whether a different order could be made instead of you being evicted
• The hardship you and your household may suffer if evicted, compared to the hardship others – such as Homes Victoria – may suffer if you are not evicted
• Any community impact statement provided by Homes Victoria
• Anything else VCAT thinks is relevant

At the hearing, you can have your say. This page has more about telling VCAT why you should stay.

If VCAT decides it would not be ‘reasonable and proportionate’ to make a possession order, it cannot make that order. It may dismiss the application or it may make another order instead. You won’t have to move out. See more on this page about other orders instead of possession orders.

If VCAT decides it is ‘reasonable and proportionate’ to make a possession order, it must make a possession order. This page has more on what happens if VCAT makes a possession order.

If VCAT decides the notice to vacate is legally valid, you should give any evidence you have to show that it would not be ‘reasonable and proportionate’ to make a possession order and end your tenancy.

You can give this information to VCAT and Homes Victoria at the hearing. Or you can give it to them beforehand – this is a good idea if you have documents, like support letters or details about your financial situation, that you want them to look at before the hearing. VCAT has more information on preparing for the hearing.

If you are concerned about sharing personal information relating to issues like trauma or your mental or physical health, you can raise this with VCAT and ask that the information be restricted under the Open Courts Act 2013. This usually means that your personal information will be anonymous and not made public. It will be up to VCAT to decide if this is appropriate.

To show VCAT that a possession order is not ‘reasonable and proportionate’, you can provide evidence about:

The behaviour of Homes Victoria

Did its behaviour contribute to you getting a notice to vacate?

Did it do something unlawful, such as turning up at your home without notice or harassing you?

Was it unreasonable in giving you a notice to vacate? Why?

Your behaviour

Why were you given the notice to vacate? Was it because of something you did?

Was it something trivial?

Have you fixed, or can you fix, the problem?

Has it happened before? Can you show that it is unlikely to happen again?

Was someone else responsible?

If you weren’t at fault, can you show that?

Were there any witnesses who could write a statement or give evidence at the hearing?

If it was for something serious or criminal, are there police reports?

Family or personal violence

Family violence is committed by a family member. Personal violence is committed by someone who is not a family member. Was the reason for the notice to vacate related to someone being violent towards you?

Do you have any evidence of this? Evidence could include:

• Letters or statements from support workers, friends and family
• Reports from support workers or medical professionals
• Photo and video evidence
• Emails and texts
• An intervention order or an application for one
• Police reports or charges

Could a different order be made instead?

Could VCAT make another order that would allow you to stay instead of making a possession order?

For example, could VCAT make a compliance order telling you to fix the problem and not repeat it?

Or order a payment plan to pay off overdue rent?

VCAT does not have the power to make you get health treatment or therapy at this type of hearing. You can, of course, volunteer to do this, which may help with VCAT’s decision about whether to end your tenancy.

Hardships you may face if evicted

You should provide details of any hardships you may face if evicted. Try to get letters of support and other documents to help show that these hardships are likely to happen.

Hardships may include:

• Homelessness: If evicted, would you be at risk of homelessness? Have you tried to find other accommodation but been unsuccessful? Do you have evidence of this that you could show VCAT?
• Financial hardship: Are you struggling to make ends meet? Can you afford to leave? Can you afford to find a new home? Are you working or is Centrelink your only income? Do you have evidence of your financial situation you could show VCAT?
• Connections to your home and local community: What connections might you lose if evicted? Do you have cultural links to your home or area? Are there local services you would no longer be able to use?
• Family connections and considerations: Do you have family connections in the area? If you have children, how would eviction affect them? For example, instability, insecurity, changing schools, or not being able to access support services
• Mental and physical health: Could being evicted affect your health? For example, is your current home easily accessible or modified to suit a disability? Would having to find a new home affect your mental health? Will you lose any current health supports, or find them more difficult to access?

Hardships Homes Victoria may face if you stay

Homes Victoria may say it will experience hardship if you don’t move out. While it cannot experience hardship itself, the people on its waiting list can.

You should still explain to VCAT that a possession order would not be ‘reasonable and proportionate’ because the impact on you would be greater, and detail how you would be affected. VCAT may agree with you.

For example, if you sublet part of your property, the impact on Homes Victoria once you stop subletting it will be minimal and a possession order may not be justified.

If VCAT decides it would not be ‘reasonable and proportionate’ to make a possession order, it may make a different order instead. You won’t have to move out.

If VCAT makes a different order, you will be told on the day of the hearing about what happens next.

Payment plan instead of possession order

If your notice to vacate was for overdue rent, VCAT could put the application for a possession order on hold and make an order for a payment plan instead. This means you could pay the overdue rent back over a reasonable period of time.

Find out more on our website about overdue rent.

Compliance order instead of possession order

In some cases, VCAT may make a compliance order instead of a possession order, giving you a chance to avoid eviction.

A compliance order requires you to follow your legal duties as a renter. If you don’t comply, you could receive another notice to vacate, return to VCAT, and risk eviction again.

VCAT may consider a compliance order if your notice to vacate was for:

• Seriously damaging the property
• Endangering your neighbours or someone working for Homes Victoria. For more on what ‘endanger’ means, see our page about the Consumer Affairs Victoria guidelines. These are official guidelines that set out how renters and rental providers (such as Homes Victoria) must follow the rental laws
• Threatening or intimidating someone working for Homes Victoria

For example, you may struggle with excessive clutter in and around your home and receive a notice to vacate because the clutter is causing danger to someone else. VCAT might consider that it is not ‘reasonable and proportionate’ to make a possession order, and instead make a compliance order that requires you to tidy up your home over a reasonable period of time. For more on what ‘reasonable and proportionate’ means, see the section on this page about what happens if VCAT decides the notice to vacate is legally valid.

Orders VCAT cannot make at the hearing

VCAT can only issue possession orders, compliance orders and payment plans for overdue rent at this hearing. It cannot order you to use support services to change your circumstances. For example, it does not have the power to make you get health treatment or therapy.

It is best to discuss your situation with Homes Victoria or support people you trust to address the issues behind the notice to vacate. While VCAT cannot force you to seek support, seeking support may influence its decision on whether you have to move out.

In exceptional circumstances, Homes Victoria may negotiate a ‘post-possession-order agreement’ with you as a last chance to avoid eviction. It may do this in circumstances such as:

• You are in rent arrears
• Your entire household is facing eviction
• You have significant disability
• You are experiencing, or are at risk of, family violence

This negotiation balances:

• The objectives of Homes Victoria
• The negative effect of eviction on you and your household
• The Charter of Human Rights and Responsibilities Act 2006

If you accept a post-possession-order agreement, you will be able to stay in your home but may need to follow certain conditions.

If you comply with the agreement and Homes Victoria doesn’t get a warrant of possession from VCAT within 6 months, your lease (officially called a rental agreement) will continue. If Homes Victoria wants to evict you in future, it will need to give you a new notice to vacate.

If you don’t comply with the agreement, Homes Victoria can immediately get a warrant of possession from VCAT and have the police evict you and change the locks without another hearing.

Once Homes Victoria has obtained a warrant of possession, it is usually valid for 14 days. This is the time when the police can evict you. But they cannot do it overnight between 6 pm and 8 am or on a Sunday or public holiday.

If Homes Victoria gets a warrant of possession, the police will come to your home or call to let you know. They then usually give you a couple of days to leave before they return and change the locks.

If you have to move out immediately

Some possession orders say you have to move out on the same day as the VCAT decision. This means Homes Victoria can get a warrant of possession immediately and give it to the police. From this time on, there is a risk of the police coming to your home to evict you.

Before this happens, Homes Victoria should make every effort to assess and properly consider any risks or new information that may be relevant to its decision to evict you and to your wellbeing.

If you think you are going to be evicted immediately, try to arrange for somewhere safe to stay.

If you have nowhere to go, there are housing services that may be able to help. Contact the Victorian Government’s crisis accommodation services or call the 24-hour number: 1800 825 955.

You should contact these services as soon as the possession order has been made. Try to gather information that may help prioritise you for access to accommodation. For example, evidence of having young children or expecting to give birth, health conditions such as diabetes or a chronic mental health condition, or experience of family violence.

If you don’t have time to move all your possessions out, take photos as proof of ownership in case anything is unlawfully disposed of or stolen. Find out more on our page about goods left behind.

At the possession order hearing, you can ask VCAT to postpone issuing a warrant of possession. This delays your eviction. VCAT can postpone a warrant for up to 30 days.

In deciding whether or not to postpone a warrant, VCAT considers:

• The hardship you and your household may suffer if the warrant is not postponed
• The hardship Homes Victoria may suffer if the warrant is postponed

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 postponement in some circumstances. These include if you got the notice to vacate because:

• Your home is destroyed or unfit to live in
• You or one of your visitors seriously damaged the property
• You or one of your visitors endangered your neighbours or someone working for Homes Victoria. For more on what ‘endanger’ means, see our page about the Consumer Affairs Victoria guidelines. These are official guidelines that set out how renters and rental providers (such as Homes Victoria) must follow the rental laws
• You threatened or intimidated someone working for Homes Victoria

You cannot delay the warrant of possession, but you can ask for a later vacate date in the possession order, to give you extra time. VCAT can set the vacate date to be up to 30 days after the possession order is made.

For example, if the possession order is made on 1 July, it may say you have until 30 July to leave. After that, Homes Victoria can get a warrant of possession, which means the police can evict you.

If VCAT makes a possession order and you (or someone representing you) were not at the hearing, you can apply to VCAT to reopen the order. This is sometimes called a review.

Reopening an order gives you the opportunity to present your case and have the previous order cancelled.

You need to apply to reopen the order within 14 days of finding out about the order.

You also need to apply before the police evict you. Once you have been legally evicted, VCAT has no power to order that you be allowed to move back into the property.

If possible, go to VCAT in person and apply for an urgent review. If you cannot get to VCAT, use the form on VCAT’s website to apply: Application to reopen an order. If you need assistance with the form, call VCAT on 1300 018 228. Also see the information on this page about getting help.

When you apply to reopen the order, ask VCAT to get the police to put a stop on the warrant of possession (if Homes Victoria has one). You should also call the local police station to confirm that you have lodged the application to reopen the order with VCAT.

At the review hearing you will need to convince VCAT that you had a good reason for not going to the original hearing, and that you have a reasonable case to argue if they reopen the order.

If VCAT accepts your explanation, it will set aside its earlier decision and re-hear the application for a possession order. Be ready to tell your side of the story on the same day.

There is no fee for applying for a review hearing.

A restraining order is an order from VCAT that tells someone they must do something, or stop doing something.

If Homes Victoria intends to evict you other than as allowed by Victoria’s rental laws, the Residential Tenancies Act, you can apply to VCAT for a restraining order to stop it doing this. If you think you are going to be illegally evicted by Homes Victoria, seek urgent advice. This page says where you can get help.

Find out more on our page about restraining orders.

If you are illegally evicted, you can also lodge a complaint with Consumer Affairs Victoria. There are harsh penalties for individuals and organisations convicted of carrying out an illegal eviction.

You can also seek compensation for any inconvenience, costs, loss or damage to your goods caused by any unlawful action by Homes Victoria. Find out more on our website about claiming compensation.

If you need support in dealing with a notice to vacate or eviction, help is available.

These extra resources may assist if you are dealing with a notice to vacate or eviction.

The Residential Tenancies Act 1997 is Victoria’s main law for renting. It describes the rights and duties of renters and rental providers (like Homes Victoria) in numbered sections.

The sections in this list relate to notices to vacate and eviction in public housing. Click on a link to see the section in the Act.

• Section 91F – Termination by abandonment
• Section 91P – Offence to obtain possession of premises
• Section 91ZG – Order of Tribunal that premises are abandoned
• Section 91ZI – Notice to vacate for intentional or reckless, serious damage
• Section 91ZJ – Notice to vacate for danger
• Section 91ZK – Notice for threats and intimidation
• Section 91ZL – Notice to vacate property destroyed or unfit for habitation
• Section 91ZM – Notice to vacate for rent arrears
• Section 91ZN – Notice to vacate for failure to pay bond
• Section 91ZO – Notice to vacate for failure to comply with Tribunal order
• Section 91ZP – Notice to vacate for successive breaches of duty
• Section 91ZQ – Notice to vacate for illegal use
• Section 91ZR – Notice to vacate for drug related conduct in public housing
• Section 91ZS – Notice to vacate for committed an indictable offence on the rented
• Section 91ZT – Notice to vacate for permitting child to reside in property
• Section 91ZU – Notice to vacate for false statement to housing authority
• Section 91ZV – Notice to vacate for assignment or sub-letting without consent
• Section 91ZW – Notice to vacate – residential rental providers principal place of residence
• Section 91ZX – Notice to vacate for renovations/repairs
• Section 91ZY – Notice to vacate for demolition
• Section 91ZZ – Notice to vacate as rental property to be used for business
• Section 91ZZA – Notice to vacate as residential rental provider or family member to occupy
• Section 91ZZB – Notice to vacate as property to be sold
• Section 91ZZD– Notice to vacate for end of fixed term not more than 5 years
• Section 91ZZDA – Notice to vacate for end of fixed term more than 5 years
• Section 91ZZE – Renter no longer meets eligibility criteria
• Section 91ZZG – Notice to vacate when pet kept without consent
• Section 91ZZH – Prohibition on letting premises after Notice
• Section 91ZZI – Notice to have no effect in certain circumstances
• Section 91ZZK – Notice by mortgagee
• Section 91ZZO – Requirements for the Notice to Vacate
• Section 91ZZP – Multiple Notice to Vacate given for different reasons
• Section 91ZZS – Renter may apply to tribunal
• Section 91ZZU – Renter may challenge Notice to Vacate on grounds of family violence or personal violence
• Section 91ZZV – What VCAT can order if a renter challenges a Notice to Vacate on grounds of family violence or personal violence
• Section 322 – Application for possession order by rental provider
• Section 329 – Hearing of an application for a possession order
• 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 332A – VCAT may dismiss possession order application and make a compliance order in certain circumstances
• Section 333 – Contents of possession order
• Section 351 – Issue of warrant of possession
• Section 352 – Postponement of the warrant of possession

The Residential Tenancies Regulations 2021 provide more detail and definitions, and specify updates to the Residential Tenancies Act.

These other Acts and regulations also apply to notices to vacate and eviction in public housing:

• Victorian Civil and Administrative Appeals Tribunal Act 1998: Section 120 – Re-opening an order on substantive grounds
• Victorian Civil and Administrative Tribunal Rules 2018: Regulation 4.24 – Reopening an order

Homes Victoria policies

Homes Victoria also has policies (rules) that set out its obligations to assess issues and communicate respectfully with you to try to resolve them. It must follow these policies.

The tenancy management manual on the DFFH website has operational guidelines relating to the following aspects of notices to vacate and eviction:

• Rental arrears
• Residential rental agreement terminations and deceased estates
• Tenancy breaches
• Temporary absence
• Abandoned properties and goods
• Undeclared occupants, subletting and squatters
• Neighbourly behaviour and support
• Appointed representatives of tenants and applicants

You can access the policies and procedures for housing appeals in the business practice manual.

You can access the policies and procedures related to moving out in the relocation manual.

If you wish to make a complaint about Homes Victoria, see our page on public housing.