Introduction
This article is useful reading for all landlords and tenants in Victoria. There are different laws for serving a notice to vacate in other Australian states.
Landlord wants tenant to vacate
If the landlord requires that the tenant move out of the property, the landlord must serve on the tenant, a valid notice to vacate. There are various reasons why a landlord may give a Notice to Vacate, for example, they may want to sell the property with vacant possession or they may what to renovate, for example. The length of the notice period (that is 14, 60, 90 or 120 days) depends on the reason for the notice.
Eviction is slightly different – to evict a tenant, a landlord must apply to the Victorian Civil and Administrative Tribunal for a Possession Order.
Immediate Notice to Vacate
An immediate notice to vacate can be served if the rented premises are destroyed or unfit for habitation. An immediate notice can also be served if the tenant maliciously damages the premises or endangers the safety of neighbours.
The Tribunal requires substantial proof from landlords in these cases.
14-day Notice to Vacate
A 14-day notice to vacate can be given when:
- Rent is 14 days in arrears
- The tenant fails to pay the bond
- The tenant sub-lets the premises without the landlord's consent
- The lease has a condition prohibiting children from living on the premises and you are breaking that condition
- The tenant uses the home for an illegal purpose
- A public tenant provides a false or misleading fact on the application form
- The tenant fails to comply with a Compliance Order made by the Tribunal
- The tenant breaches the Residential Tenancies Act 1997 for a 3rd time
60-day Notice to Vacate
A 60-day notice to vacate can only be served when there is no fixed-term lease, or where the end date on the notice is on the last day of the fixed-term lease. The landlord can serve 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
- 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 the tenant has a fixed-term lease for less than 6 months. The end date on the notice must be on or after the last day of the fixed term.
90-day Notice to Vacate
The landlord can serve a 90-day Notice to vacate when the tenant has a fixed-term lease for 6 months or more. The end date on the notice must be on or after the last day of the fixed term.
120-day Notice to Vacate
The landlord can serve a 120-day notice to vacate for any specific reason when there is a periodic (month to month) tenancy.
Serving a notice
A notice to vacate must be served on the tenant personally 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 the tenant is being asked to leave (except in the case of a 120-day Notice to Vacate for no reason). If the notice is sent by post, the date on the notice must take into account the time it would take to reach the tenant (2 full business days). If it does not meet all of these requirements, the notice to vacate is invalid.
Challenging a Notice to Vacate
You can challenge a Notice to vacate if you think that it is invalid. However you must do so within 30 days from the date that you receive it.
You can also challenge a 120-day no-reason Notice to Vacate or an end of fixed-term Notice to Vacate if you believe that it has been given to you in retaliation for exercising your rights under the Residential Tenancies Act 1997 (e.g. asking for repairs). The following time limits apply to challenging a notice given in retaliation:
- 60 days to challenge a 120-day no-reason Notice to Vacate
- 21 days to challenge a 60-day end of fixed-term Notice to Vacate for a fixed term of less than 6 months
- 28 days to challenge a 90-day end of fixed-term Notice to Vacate for a fixed term of 6 months or more