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EVICTION

EVICTION

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.

legal evictions

In order to evict you, the landlord must:

  • give you a valid Notice to Vacate (see the Notices to Vacate Fact Sheet for more information)
  • apply to the Victorian Civil and Administrative Tribunal for a Possession Order

A landlord cannot legally have you evicted without first obtaining a Possession Order and a Warrant of Possession. A Warrant of Possession directs the police to evict you from the property. Only the police can carry out the eviction; the landlord cannot personally evict you.

applications for Possession Orders

standard procedure

There are two procedures that landlords can use to apply for a Possession Order. With the standard procedure, the landlord sends you a Notice to Vacate and a copy of their application to the Tribunal for a Possession Order. See the Notices to Vacate Fact Sheet for more information. The Tribunal will then send you a notice telling you the time, date and place of the Tribunal hearing.

alternative procedure for rent arrears

The other procedure the landlord can follow if they want to evict you for rent in arrears is the 'alternative' procedure. To use this procedure, the landlord must send you the following documents at the same time:

  • 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 against 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 reach the Tribunal no later than 4pm on the day the Notice to Vacate expires. Send the Notice of Objection by certified or registered mail, but allow at least 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 that it arrives in time.

If you don't return the Notice of Objection, the landlord may be automatically granted a Possession Order without any hearing taking place. You won't get an opportunity to dispute the matter and you may be evicted without any further notice. If you do return the Notice of Objection, the Tribunal will set a hearing date and the application will proceed as normal.

alternative procedure when fixed-term tenancy is ending

If your landlord gives you a Notice to Vacate for no reason and your fixed-term tenancy is due to expire, and the notice expires on the same day that the fixed term expires, they may also use the alternative procedures to obtain a Possession Order.

The landlord must send you a further notice informing you that they intend to apply to the Tribunal for a Possession Order if you do not move out on the last day of your fixed term. If your fixed-term agreement is for less than 6 months, the further notice must be given to you between 7 and 14 days before the end of the fixed term. If your fixed-term agreement is for 6 months or more, the further notice must be given to you between 14 and 21 days before the end of the fixed term.

If you do not move out on the last day of your fixed term, the landlord or agent can apply to the Tribunal. They must send you a copy of their application, together with 2 copies of the Notice of Objection and a statement of your rights in relation to the application for a Possession Order.

If you want to argue against 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 reach the Tribunal no later than 4 pm on the day the Notice to Vacate expires. Send the Notice of Objection by certified or registered mail, but allow at least 2 business days for delivery. If it is less than 2 days until the Notice to Vacate expires, take the Notice of Objection in to the Tribunal in person to make sure it arrives in time.

If you do not return the Notice of Objection, the landlord can request that the Registrar make a Possession Order and issue a Warrant of Possession. There will be no further notices and no opportunity for you to put your case to the Tribunal. If you do return the Notice of Objection, the Tribunal will set a date for the hearing and the application will go ahead in the same way as a standard application.

Tribunal hearings

The Tribunal will schedule a hearing to take place after your Notice to Vacate has expired. You will be notified of the time and place of the Tribunal hearing and you should always attend. You may wish to dispute the grounds on which the landlord is wanting to evict you, or explain your circumstances and ask the Tribunal for an extension of time. The Tribunal member can order that you be given more time, or if they are convinced that you should not be evicted, they can order that you be allowed to stay. If you do not attend the hearing, the Possession Order will almost always be granted.

Warrants of Possession

If the Tribunal member believes you should move out, they will grant a Possession Order. This allows the landlord to take out a Warrant of Possession which gives the police the power to evict you. Usually the police must act on the warrant within 14 days (although in special circumstances the Tribunal will sometimes allow 30 days).

If the landlord has been granted a Possession Order by the Tribunal, you should contact your local police station to inform them you will leave the premises on the 14th day. If you contact the police they will be less likely to exercise their power to evict you before then. Usually the police will give you a couple of days warning before they evict you, but be aware that they can lawfully act on the Warrant of Possession as soon as they get it (which can be the same day as the Tribunal hearing).

Tribunal rehearings

If you find out that a Possession Order has been granted but you did not attend the hearing, you can apply to the Tribunal for a rehearing. You will need to do this before the police evict you, as once you have been evicted the Tribunal has no powers to allow 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 ring the Tribunal registry and ask them how to apply for a rehearing.

Victorian Civil and Administrative Tribunal

55 King Street, Melbourne 3000

(03) 9628 9800

(Freecall) 1800 133 055

fax (03) 9628 9822

Open 9.00am to 4.30pm

Monday to Friday

When you apply for a rehearing you should immediately contact your landlord or agent and the police to make sure they do not act on the Warrant of Possession. You should also make sure that the Tribunal staff contact the police to put a stop on the execution of the warrant.

When your application for a rehearing is heard you will need to convince the Tribunal member that you had a good reason for not appearing at the original hearing. If the Tribunal member accepts your explanation, the initial decision will be set aside and the landlord's application reheard. There is no fee for applying for a rehearing.

illegal evictions

It is illegal for a landlord or agent (or anyone acting on their behalf) to attempt to physically evict you or change the locks. Only the police can carry out an eviction. If the landlord or agent attempt to evict you, you should call the police and charge the landlord or agent with trespassing.

If you have been illegally evicted, you should immediately apply (in person if possible) for an urgent hearing at the Tribunal. The Tribunal can restrain the landlord or agent from further illegal actions and order them to allow you back into the property.

You should also lodge a complaint with the Director of Consumer Affairs Victoria. There is a maximum penalty of $2000 if the landlord is convicted. You can also seek compensation for any inconvenience, costs, loss or damage to your goods caused by the landlord's illegal actions. See the Complaints about Landlords & Agents and Claiming Compensation Fact Sheets for more information.

For more information contact 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

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