- caused serious damage, either deliberately or recklessly [section 91ZI]
- caused danger to neighbours, the rental provider, or agent, or a contractor or employee of the rental provider or agent [section 91ZJ]
VCAT requires substantial proof from rental providers in these cases.
Note that on this page sections in brackets, such as [section 91ZL], refer to sections in Victoria’s Residential Tenancies Act 1997. There are links to these in the Resources section near the end of this page.
For notices to vacate the rental provider gives for causing danger, VCAT must also consider guidelines issued by Consumer Affairs Victoria (CAV). The guidelines set out relevant case law and other factors that VCAT must take into account in deciding whether the behaviour resulting in the renter being give a notice to vacate is behaviour that caused danger to the safety of neighbours or others [section 330].
CAV Guidelines14-day notice to vacate
A 14-day notice to vacate can be given if a renter:
- Is 14 days, or more, overdue in their rent [section 91ZM]
- Was threatening or intimidating to the rental provider, or agent, or their contractor or employee [section 91ZK]
- Did not pay a bond where the rental agreement required them to [section 91ZN]
- Did not comply with an existing VCAT compensation or compliance order [section 91ZO]
- Assigned or sublet without consent [section 91ZV]
- Used, or allowed others to use, the property for an illegal purpose [section 91ZQ]
- Has breached their duty under the law and have received two previous breach of duty notices for the same breach [section 91ZP]
- Failed to comply with a term of their agreement prohibiting them from letting a child under 16 years of age live at the property [section 91ZT]
If the renter lives in public housing, in addition to the above, a 14-day notice to vacate can be given if they have:
- Committed an indictable offence on the property or common property [section 91ZS]
- Committed, or allowed other to commit, drug offences, such as trafficking, supplying, and cultivating [section 91ZR]
- Misled the rental provider about their eligibility for public housing [section 91ZU]
A rental provider can also give a 14-day notice to vacate if the property was their principal place of residence immediately before the rental agreement started, but only if:
- The rental agreement stated that they intended to move back in at the end of the renter’s first or second fixed-term agreement
- The notice is given before the end of the first, or second, fixed term in the rental agreement [section 91ZW]. Documentary evidence is required [section 91ZZO]).
28-day notice to vacate
A 28-day notice to vacate can be given if a renter kept a pet after the Victorian Civil and Administrative Tribunal (VCAT) made an order for it to be removed [section 91ZZG].
This only applies to pets brought into the property after new pet laws commenced on 2 March 2020. See our page Pets and your tenancy.
60-day notice to vacate – rental provider
A 60-day notice to vacate (other than a 60-day notice to vacate by a mortgagee) can only be given where there is no fixed-term tenancy agreement, or when the termination date on the notice – the date you have been asked to move out by – is on or after the end date of your fixed-term agreement.
This means the rental provider cannot make you leave your home before the end of your fixed-term agreement.
Documentary evidence
All 60-day notices to vacate must include documentary evidence from the rental provider to prove the reason in the notice to vacate is legitimate [section 91ZZO].
Reasons the notice can be given
A 60-day notice to vacate can be given if:
- The property is sold or offered for sale with vacant possession. Documentary evidence is required [section 91ZZB]
- A dependent family member who normally lives with the rental provider needs to move into the property. Documentary evidence is required [section 91ZZA]
A 60-day notice can also be given if the property is to be:
- Repaired, renovated or reconstructed, and this cannot be done without you moving out. Documentary evidence is required [section 91ZX]
- Demolished. Documentary evidence is required [section 91ZY]
- Used for a business instead of for renting. Documentary evidence is required [section 91ZZ]
A 60-day notice can be given to a renter in a public housing property if the property is needed for a public purpose. Documentary evidence is required [section 91ZZC]
6-month restriction on re-renting
If the rental provider gives a notice to vacate for the property to be demolished, used as a business or sold, and those things do not happen, they are not allowed to rent the property out again for 6 months unless they have permission from VCAT [section 91ZZH].
60-day notice to vacate – mortgagee
A mortgagee can give a 60-day notice to vacate if they have a mortgage (home loan) over the property, the mortgage was entered into before the rental agreement started, and they become entitled to possession of the property – for example, the rental provider has defaulted on their loan [section 91ZZK].
But they cannot give you a notice to vacate if they gave the rental provider permission to enter into a rental agreement with you. This permission could be express –stated in the agreement – or implied. That means that even if express permission was not given it can be implied if the mortgagee knew about the rental agreement and allowed it to continue without any objection.
If you are forced to vacate the rental property because of a notice to vacate by the mortgagee, you may be able to claim compensation from your rental provider. Seek advice in these matters.
60 or 90-day notices to vacate – end of fixed-term rental agreement
A 60-day notice to vacate –if you have a rental agreement for less than 6 months – or 90-day notice to vacate – if you have a rental agreement of 6 months or more– can be given to align with the end of your agreement if it is fixed term [sections 91ZZD and 91ZZDA].
If the rental provider wants to give you a notice to vacate that they want you to move out once the initial fixed-term rental agreement has ended, they need to make sure you are given the notice according to these time frames, which depend on the length of the agreement:
- If the rental agreement is for a fixed term of 6 months or more at least 90 days before the last day of the initial fixed-term rental agreement
- If the rental agreement is for a fixed-term of less than 6 months, at least 60 days before the last day of the initial fixed-term rental agreement
The rental provider cannot ask you to leave before your fixed term agreement ends.
If you decide you want to leave before your fixed term rental agreement ends, you can give the rental provider 14 days’ notice of your intention to move out.
For more information on giving your notice of intention to vacate see the heading ‘You received a notice to vacate’ on our Ending your lease page.
90-day notice to vacate – public housing eligibility
A rental provider for public housing can give a 90-day notice to vacate if the renter no longer meets public housing eligibility criteria [section 91ZZE].
Housing eligibilityReceiving a notice to vacate
A notice to vacate must:
- Be in the proper form
- Be addressed to you
- Be signed and dated by the rental provider or agent
- Clearly state the reason for the notice with sufficient detail
- Be a valid reason under the Residential Tenancies Act 1997
- State the termination date
- Be accompanied by documentary evidence, if required [section 91ZZO]
A notice to vacate cannot be left in your letterbox or under your door. It must be given to you in one of three ways.
Firstly, it can be given to you in person.
Secondly, it can be sent by registered mail, in which case the notice period must include extra time for it to reach you by post. It is also a good idea to keep the envelope and tracking number as this can be useful evidence to show when the notice was posted. If you do get a notification that you have registered post to collect from the post office do not ignore this. If you do not collect your registered post, and the matter goes to VCAT, the Tribunal may consider that the notice has been lawfully ‘served’, or given, to you.
Thirdly, the notice can be given by an electronic method, such as email, if you have agreed to receive notices this way. If you receive a notice to vacate electronically and you have not consented, check your rental agreement and contact us for further advice.
The notice must be the full minimum notice period for you to vacate required by law, plus the time it took to get to you plus one extra day, with that being the termination date.
If a notice to vacate does not meet all these requirements it is not valid. If you have doubts about the validity of your notice to vacate, you should seek advice as soon as possible.
Mail deliveryNotices to vacate that ‘have no effect’
Notices to vacate ‘have no effect’ in some circumstances [section 91ZZI].
A notice to vacate has no effect in certain conditions if you have been given it for one of these reasons:
- Repairs, renovations, reconstruction [section 91ZX]
- Demolition [section 91ZY]
- Property to be used as a business [section 91ZZ]
- Rental provider, or dependent family member, to move in [section 91ZZA]
- property is sold, or selling [section 91ZZB]
- Property is required for a public purpose [section 91ZZC]
- End of fixed term agreement [sections 91ZZD and 91ZZDA]
- the renter is no longer eligible for public housing [section 91ZZE]
One of these conditions must also apply:
- The minimum notice period has not been given
- The vacate date is before the end of your fixed term agreement
- Giving the notice would constitute direct discrimination. See our page Applying for a private rental
In the case of a notice to vacate at the end of a fixed term agreement, the notice has no effect if it has been given in response to you exercising, or trying to exercise, your rights under the Residential Tenancies Act 1997, or in response to you giving the rental provider written notice that repairs are required [section 91ZZI].
In the case of a notice to vacate given for threats and intimidation [section 91ZK] the notice has no effect if it has been given in response to you exercising, or trying to exercise, your rights under the Residential Tenancies Act 1997 – for example, by asking for repairs [section 91ZZI].
Notices to vacate for overdue rent
If you have been given a notice to vacate for overdue rent (‘rent arrears’), in most instances if you have paid the overdue rent before the termination date in the notice, then the notice to vacate has no effect. For more information see our page Overdue rent.
Challenging a notice to vacate
If you have received a notice to vacate and would like to know if you can challenge it, contact us as soon as possible.
You can challenge a 60-day notice to vacate – except for a notice by a mortgagee or a notice for the end of a fixed-term agreement – if you think that it is invalid, including if it has ‘no effect’ [section 91ZZS].
If you want to challenge before there is a possession order hearing at VCAT, you must apply to VCAT within 30 days from the date that you receive the notice to vacate. If you do not challenge the notice within 30 days, you can still challenge its validity at the possession order hearing.
If the notice to vacate has been given for the end of your fixed-term agreement, and you want to challenge it, you must apply to VCAT within:
- 21 days for a 60-day end-of-fixed-term notice to vacate, for a fixed term rental agreement of less than 6 months
- 28 days to challenge a 90-day end-of-fixed-term notice to vacate for a fixed term rental agreement of 6 months or more [section 91ZZI].
If the notice to vacate has been given by a mortgagee, you should attend the possession order hearing at VCAT. At the hearing VCAT will make sure the notice to vacate is valid. If it is, and a possession order is granted, you can ask VCAT to delay the time before the mortgagee can purchase a warrant for the police to evict you. VCAT can grant up to a maximum of 30 days before a warrant can be purchased.
Family or personal violence
If you have been given a notice to vacate for an act or breach that was caused by someone who has subjected you to family or personal violence, you can apply to VCAT to challenge it [section 91ZZU].
The relevant acts or breaches are:
- Damage [section 91ZI]
- Danger [section 91ZJ]
- Threats and intimidation [section 91ZK]
- Failure to follow a VCAT order [section 91ZO]
- Breaching a duty after having received two previous breach of duty notices for the same breach [section 91ZP]
- Using the property for an illegal purpose [section 91ZQ]
- Drug related conduct in public housing [section 91ZR]
If you have received a notice to vacate and would like to know if you can challenge it, contact us as soon as possible.
You can challenge the notice to vacate at, or before, a VCAT possession order hearing. If you want to apply to VCAT to challenge the notice before a possession order hearing you must do this within 30 days of being given the notice to vacate.
VCAT must make an order that the notice to vacate is invalid if it is satisfied that you have been, or are being, subjected to family or personal violence, and the act or breach for which the notice was given was caused by the perpetrator of that violence.
Leaving before a notice to vacate expires
If you are on a fixed term agreement you can be required to leave early if the rental provider gives you a valid notice to vacate, and VCAT has granted them a possession order.
If you decide you want to leave sooner than that and give the rental provider a notice of intention to vacate with an earlier termination date than their notice, there may be some liability on you for breaking your rental agreement early. You can try to negotiate an agreement with them or their agent, but make sure that it is in writing, and signed by you and your rental provider or agent. This also applies if you want to leave before the end of the full fixed-term rental agreement.
If you have a periodic rental agreement, such as month to month, and receive a notice to vacate from the rental provider, in some circumstances you may be able to give them a 14-day notice of intention to vacate.
Resources
- Residential Tenancies Act 1997 (AustLII website)
- 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 91ZZC – Notice to vacate as property required for public purpose
- 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 330 – Order of Tribunal
- Guidelines for notice to vacate for endangering safety (document) [CAV website]
- Guideline 5 – Endanger (document) [CAV website)
