(April 2005)

The information in this Fact Sheet is not legal advice. It is intended as a general guide only. It applies only to legislation current in the state of Victoria, Australia. For information regarding a specific tenancy problem, contact the Tenants Union. The Tenants Union accepts no responsibility for actions based on this information, nor for actions based on electronic translations of this information.

If you do not pay your rent on the day it is due, you will be 'in arrears'. If you are unable to make a payment, contact your landlord or agent as soon as possible and tell them when you'll be paying.

If you can't pay the arrears in one payment, you should offer to pay the arrears off over time (eg an extra $20 per week). If you make this kind of offer, you shouldn't offer to pay more than you can afford. Make the offer in writing and keep a copy. Even if the landlord or agent doesn't accept your offer, you can use your letter as evidence that you tried to resolve the problem.

If the landlord or agent rejects your offer or you are unable to make any payments, they must follow the legal procedures below if they want to evict you.

It is illegal for your landlord or agent to personally attempt to evict you. Only the police can evict you and even then, they must have an order and warrant from the Victorian Civil and Administrative Tribunal. (See the Eviction and Complaints about landlords and agents Fact Sheets for more information.)

The Eviction Process

Step 1. 14-day Notice to Vacate

If you are 14 days or more in rent arrears, the landlord can give you a 14-day Notice to Vacate. This notice must be hand delivered or sent by registered mail.

If you receive a Notice to Vacate, you do not have to move out of the property if you don't want to. The notice is just the first step in taking the matter to the Tribunal. You can still try to negotiate an agreement with the landlord or agent. If you can do this, get their agreement in writing and check with the Tribunal that any application the landlord has made has been withdrawn.

If you want the Tenants Union (or another tenant advice service) to help you prepare for the Tribunal hearing, seek advice as soon as you receive the Notice to Vacate.

Step 2. Application for a Possession Order

There are two procedures the landlord can follow if they want to evict you for rent arrears. The first is the standard procedure for a Possession Order and the second is the alternative procedure.

Standard procedure

To make a standard application for a Possession Order, the landlord must send you a 14-day Notice to Vacate and a copy of their application to the Tribunal.

The Tribunal will then send you a Notice of Hearing, which sets the time, date and place of the hearing. You must go to the hearing. If you don't go to the hearing, the landlord may be automatically granted a Possession Order. If you are unable to attend, you must contact the Tribunal before the hearing date to arrange for an adjournment. You must be able to prove there is a good reason for needing an adjournment, or else get the landlord's consent.

Alternative procedure

The second procedure that the landlord can use to apply for a Possession Order is the alternative procedure. To use this procedure, the landlord must send you the following documents:

• a 14-day Notice to Vacate
• a copy of their application to the Tribunal for a Possession Order
• 2 copies of a Notice of Objection
• a statement setting out your rights in relation to the Possession Order

If you want to argue the landlord's application, you must fill out the Notice of Objection and send one copy to the landlord and the other to the Tribunal. The Notice of Objection must be returned by 4.00pm on the day that the 14-day Notice to Vacate expires. Send the Notice of Objection by certified or registered mail and allow 2 business days for delivery. If it is less than 2 days until the Notice to Vacate expires, take the Notice of Objection into the Tribunal in person to make sure it arrives in time.

If you don't return the Notice of Objection, the landlord may be automatically granted a Possession Order. You won't have the chance to present your case at the Tribunal and you may be evicted without further notice. If you do return the Notice of Objection, the Tribunal will set a hearing date and the application will proceed as normal.

Step 3. Tribunal hearing

Before the hearing, you should collect as much evidence as you can to support your case. You should get a statement from a financial counsellor that outlines your income and expenditure and shows you can pay off the rent arrears. Contact the Financial and Consumer Rights Council for assistance on (03) 9663 2000.

Other useful documents are medical certificates, letters from your employer or a social worker and receipts for any extra expenses you have had. You can also ask anyone who can support your case to give evidence at the hearing.

At the hearing, explain how you fell into arrears and how you intend to pay them off. If you can convince the Tribunal that you had a good reason for falling behind in your rent, you intend to pay it back and you can afford to pay the rent in future, the Tribunal may decide not to evict you.

If the Tribunal makes the order that you pay off the arrears, you must obey the order. Otherwise the landlord or agent can go back to the Tribunal without giving you any further notice. If they do this, it is unlikely you will be given a second chance and you will probably be evicted.

Step 4. Possession Order

If the Tribunal doesn't accept your explanation or you didn't attend the hearing, the Tribunal will grant a Possession Order. This means the landlord or agent can purchase a Warrant of Possession, which is a direction to the police to evict you from the property. The landlord or agent have 6 months from the day they get the Possession Order to purchase a Warrant of Possession, but they usually do this on the same day as the hearing.

Once they are given the warrant, the police can evict you at any time within the timeframe specified on the warrant, which could be 7, 14 or a maximum of 30 days. While the police will often inform the tenant when they plan to carry out the eviction, it could be as early as the same day. Remember, only the police can evict you.

If you are evicted, your possessions may still be in the property and you will have to make arrangements with the landlord or agent to let you into the property to get them. The landlord or agent cannot hold onto your goods because you owe them money. (See the Abandoned goods Fact Sheet for more information.)

Review hearings

If you didn't attend the Tribunal hearing and weren't represented at the hearing, you may be able to have the case reheard. You must apply to the Tribunal within 14 days of becoming aware of the Possession Order, and you must also apply before the police evict you. Once you have been evicted, the Tribunal has no power to get you back into the property.

If possible, you should apply for an urgent rehearing by going to the Tribunal in person. If you live in the country or are unable to get to the Tribunal, you should fax the Tribunal registry with the details of the hearing and your request for a rehearing. Contact the Tenants Union if you need help sending a fax to the Tribunal.

Victorian Civil and Administrative Tribunal

55 King Street Melbourne 3000

(03) 9628 9800

1800 133 055 (Freecall)

fax (03) 9628 9822

Open 9.00am to 4.30pm Monday to Friday

When you apply for a review hearing, you should immediately contact your landlord/agent and the police to make sure they don't carry out the Warrant of Possession.

At the review hearing, you will need to convince the Tribunal that you had a good reason for not appearing at the original hearing. You should collect evidence to prove your reasons for not appearing (eg medical certificates or witnesses) as well as evidence to support your case that you should not be evicted.

There is no fee for making an application for a review hearing.

For more information phone the Tenants Union Advice Line on (03) 9416 2577.

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PO Box 234, Fitzroy, VIC 3065, Australia

Admin 9419 5577

Advice 9416 2577

Fax 9416 0513

Last updated 17 December 2003