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The provider of this information is Tenants Union of Victoria Ltd

NOTICES TO VACATE

NOTICES TO VACATE

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, phone the Tenants Union Advice Line on (03) 9416 2577. The Tenants Union accepts no responsibility for actions based on this information, nor for actions based on electronic translations of this information.

If the landlord wants you to move out of the property, they must give you a valid Notice to Vacate. There are various reasons why your landlord can give you a Notice to Vacate and the length of the notice period (ie 14, 60, 90 or 120 days) will depend on why the landlord is giving you notice.

It is important to note that just because you receive a Notice to Vacate, it doesn't necessarily mean that you have to move out. The landlord or agent must apply to the Victorian Civil and Administrative Tribunal for a Possession Order if they want to evict you. See the Eviction Fact Sheet for more information.

Even if the landlord is granted a Possession Order by the Tribunal, you cannot be evicted or locked out by the landlord or agent. Only the police can evict you, and only when they have been authorised to do so by an order of the Tribunal. See the Eviction Fact Sheet for more information.

Immediate Notice to Vacate

An immediate Notice to Vacate can be given if the rented premises are destroyed or unfit for habitation. An immediate notice can also be given if you (or a visitor to your home) maliciously damage the premises or endanger the safety of neighbours.

The Tribunal requires substantial proof from landlords in these cases. If you receive an immediate Notice to Vacate you should seek urgent advice from the Tenants Union or another tenant advice service.

Violence

Managers of certain premises (eg caravan parks, rooming houses, managed buildings) can give a Notice to Leave when a resident or their visitor has been violent or is endangering the safety of another person on the premises. A Notice to Leave is not the same as a Notice to Vacate. If you receive a Notice to Leave, it means you must stay away from the property for 2 business days, and the landlord can apply to the Tribunal for a Possession Order. If you receive a Notice to Leave you should contact the Tenants Union or another tenant advice service urgently.

14-day Notice to Vacate

A 14-day Notice to Vacate can be given when:

  • your rent is 14 days in arrears
  • you fail to pay the bond
  • you sub-let the premises without the landlord's consent
  • your lease has a condition prohibiting children living on the premises and you are breaking that condition
  • you use your home (or allow other people to use your home) for an illegal purpose
  • you are a public tenant and you put a statement on your application form that you knew was false or misleading
  • you fail to comply with a Compliance Order made by the Tribunal
  • you have breached the Residential Tenancies Act 1997 on 2 previous occasions and you breach the Act for the 3rd time

60-day Notice to Vacate

A 60-day Notice to Vacate can only be given when there is no fixed-term lease, or where the end date on the notice is on the last day of your fixed-term lease. The landlord can give you a 60-day Notice to Vacate when, immediately after the 60th day the premises will be:

  • demolished
  • used for any purpose other than as a rented residence (eg for a business)
  • occupied by the landlord, or the landlord's spouse, son, daughter, parent or spouse's parent, or someone who normally lives with the landlord and is dependent on the landlord
  • sold with vacant possession
  • repaired, renovated or reconstructed, and this cannot be done without the premises being vacant
  • used for public purposes if it is public property

If the landlord serves a notice for any of the first 4 reasons above, they cannot re-let the property again for 6 months after the notice is given.

The landlord can also serve a 60-day Notice to Vacate if you have a fixed-term lease for less than 6 months. The end date on the notice must be on or after the last day of your fixed term. If the notice is given in retaliation for you exercising your rights (eg asking for repairs), it is invalid. If you believe this is the case you can challenge the notice, however you must do this within 21 days of the notice being given. Contact the Tenants Union or another tenant advice service for more information.

90-day Notice to Vacate

The landlord can serve a 90-day Notice to Vacate when you have a fixed-term lease for 6 months or more. The end date on the notice must be on or after the last day of your fixed term.

120-day Notice to Vacate

The landlord can serve a 120-day Notice to Vacate for no specific reason when you have a periodic (eg month to month) tenancy.

If a 120-day Notice to Vacate is given in retaliation for you exercising your rights as a tenant (eg asking for repairs), you can challenge the notice, however this must be done within 60 days (previously 28 days). If you believe you have been given a 120-day Notice to Vacate in retaliation, you should contact the Tenants Union or another tenant advice service.

Leaving before the notice expires

If you have a fixed-term lease you are entitled to stay until the end of that term. A Notice to Vacate cannot ask you to move out before your fixed-term lease expires. However, if you do want to move out earlier you can always try to negotiate an agreement with your landlord or agent. Make sure you get the agreement in writing, signed by you and your landlord or agent.

If you don't have a fixed-term lease and you receive a 60- or 120-day Notice to Vacate, you only have to give 14 days written notice of your intention to vacate.

Landlord's principal place of residence If your lease states that a property is the landlord's principal place of residence, the rules about notice are different. This is a complex area of law and the amount of notice required depends on the circumstances. Contact the Tenants Union or another tenant advice service for more information if your lease includes these provisions.

Serving a notice

A Notice to Vacate must be given to you in person or sent by certified or registered mail. The notice must be in writing, signed and dated by the landlord or agent, and must specify the reason you are being asked to leave (except in the case of a 120-day Notice to Vacate for no reason). If the notice is sent by mail, the date on the notice must take into account the time it would take to reach you (ie 2 full business days). If it does not meet all of these requirements, the Notice to Vacate is invalid.

For more information contact the Tenants Union 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

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