VIC Eviction Moratorium - Covid-19

Hi all,

The below information is based in Victoria.

We recently gave our tenants notice to evict last week as our family members are seeking to move back into the property, and they have kicked up a fuss saying that they will refuse to leave.

Can someone clarify if the eviction moratorium ending on 26 September 2020 means:

1. That if notice is given prior to 26 September 2020, and it is past 60 days on that date, they can lawfully be evicted; or
2. 26 September 2020 is the earliest date a 'notice to vacate' can be given

In addition to the above, does anyone have any general tips on best process to follow to ensure an eviction in the most timely possible manner?

Kind regards

 

The option to issue a NTV has been removed from VCAT - any of these notices are null and void if served OR come into effect after the 29th March.

You will need to contact CAV to get a reference number and ask to be referred to VCAT. At VCAT you will need to present why you need vacant possession - they will not grant a date earlier than 60 days after the VCAT hearing.

If you don't wish to follow that process, you will need to wait until after the 29th September to issue the notice to vacate, allowing a minimum of 60 days plus any service time period.

 

See below from REIV website (17 April 2020 "Residential Rent Relief Package")

Reasons for Evictions
The REIV has been made aware of some of the grounds for evictions. The eviction moratorium is only for financial hardship cases caused by Covid-19. The reasons for evictions that we are aware of are:

• The owner is selling, extensively renovating or demolishing the property; or
• The owner is moving back into the property; or
• There is evidence of threatening or violent behaviour; or
• The property has been sublet without consent; or
• Malicious damage to the property; or
• The neighbours are in danger of injury or harm; or
• There is illegal activity on the property; or
• The property is unfit for occupation; or
• There is a VCAT order in effect to evict the tenant; or
• Wilful refusal to pay rent (if the person can afford to pay)

My understanding is that if the tenant is unable and/or unwilling to prove their case of financial hardship, the eviction moratorium is not applicable, and the NTV will still stand.

 

Not correct. The COVID-19 Omnibus (Emergency Measures) Act section 544(1) regulates that a notice to vacate cannot be issued under subdivision 4 of division 1 of part 6 of the Residential Tenancies Act 1997. No COVID-19 effect is required for this section to apply, so your NTV is still of no effect.

Application to VCAT is required whether COVID impacted or not.

 

Perfect, thank you.

 

If it must go to VCAT you could be looking at 2021

 

Its above cases like this the idea of withdrawing out of the resi market completely pops into my mind

 

Just sell the place and buy a new one. It'll be quicker than this process!

 

Just to clarify, while section 544(1) does preclude a NTV from having effect, it does not disallow applications being made directly to VCAT for a possession and/or termination order. See below:

Changes to the law about renting a home - COVID-19 emergency | VCAT

Rental dispute initial assessment - CAV

Based on the above exchanges, people may think that you have to wait until the end of the moratorium before starting proceedings to evict tenants. Under circumstances similar to mine, this is not the case.

Cheers

 

Isn't this a bit misleading? A landlord still needs to have grounds to apply.

 

“Under circumstances like mine” is the key point. Further to this, links above were posted as they stipulate the reasons which are not similar to mine but still provide grounds for landlords to apply to VCAT for evicting tenants.

 

That you have family members wanting to move back in? I thought that was only a ground if they lived with you currently.

 

As per above posted link:


“VCAT can only make a termination or termination and possession order if satisfied of one of the following grounds:

...

• The landlord, their family member or a relevant dependant is moving in.”

 

That's just an info sheet paraphrasing of the relevant provision. Have you actually had a look at the relevant legislation?

I believe its section 549 of the RTA - RESIDENTIAL TENANCIES ACT 1997 - SECT 549 Tribunal may terminate tenancy agreement in certain circumstances

Good luck getting a termination order. I suspect actually someone in circumstances like yours almost certainly wouldn't get a termination order, unless there's a lot more to the story that's favourable to you.

 

1. Yes I have read the legislation
2. Family member in this case is my son which directly fits within the definition of 549((2)(o)(ii)

 

I do not know anyone personally who has received a possession order from VCAT under these draconian COVID19 laws ,but my agent mentioned to me they did receive a possession order from VCAT recently for the non payment of rent or breach of the lease agreement ,when the tenant was not effected by financial hardship ,and they did not turn up for the hearing .Like to know if any one has received a possession order ?

 

I recently obtained a termination order and possession order of my property based on the above circumstances. @thatbum thought "actually someone in circumstances like [mine] almost certainly wouldn't get a termination order" but as expected, he was incorrect.

There are multiple avenues to do so under the current legislation but it must fall under one of the exceptions listed in s 549 of the RTA. The circumstances you have described fall under s 549(2)(h)(i), and assuming the reasonable and proportionate test is also met under s 549(1)(b) of the RTA, then it is likely a possession order will be successful.

 

I mean, I'm the one that literally linked that section in this thread, but hey, I guess I'm "incorrect".

 

The section is right. The interpretation and application is not.

 

Yeah so are you going to expand on that claim? Because frankly I find it a bit suspect you haven't given any details why.