Justice Connect Homeless Law Tenancy Induction Training 2015 Katie Ho, lawyer Melbourne Office PO Box 16013 Melbourne VIC Tel +61 3 8636 4400 Fax +61 3 8636 4455 justiceconnect.org.au/homelesslaw
Contents Tenancy and eviction prevention 1. 1. Understan tanding ding the proce cess ss a Notice to Vacate (NTV) b Application for Possession Order c VCAT hearing d Warrants of Possession e Application for review 2. How to prepa pare re Case study – NTV for danger Negotiations Preparing and appearing at a VCAT hearing Appeals and judicial review ( Burgess ) Top tips ps and where to go f for help 2
Introduction: Why tenancy? The right to a home: Section 13 of the Charter is of ‘fundamental importance to the scheme of the Charter … this right ensures that people can develop individually, socially, and spiritually in that sphere which provides the civil foundation for their effective participation in society.’ - Justice Bell, Director of Housing v Sudi About 50% of Homeless Law matters are tenancy (eviction) matters • • Homeless Law: homeless or at risk sk of homelessn essness ss – focus on sustaining tenancies • Currently there is an acute shorta tage of affor orda dable housi sing in Australia: • 35 000 people on the general public housing waiting list (never getting housed) • 10 000 people on the priority waiting list in Victoria (homeless right now, 2-3 year wait) • Develop your legal skills: client interviews, case strategy, negotiations, interpreting legislation, preparing submissions, doing appearances and advocacy Contributing to policy work: The Charter of Human Rights and Responsibilities , systemic issues • 3
Introduction: Types of housing No home • Sleeping rough, sleeping in cars, couch surfing, squatting • Crisis accommodation (short term stays ~8 weeks) Social or community housing (medium to long term housing) • Rooming houses • Transitional housing People who are in a property and • Houses/apartments have exclusive access to the entire property are called tenants nts Public housing (long term housing) People who share a property with 4+ • Housing/apartments rooms, but have exclusive possession of a room are called Private rental (short or long term housing) resi side dent nts • Rooming houses • Caravan parks • Houses/apartments 4
1. Understanding the process
The Eviction Process Lawful eviction without a tenant/resident’s consent involves the follo lowing ing steps: Step 1 Issue and serve a Not otice ice to Vac acat ate on the tenant/resident, specifying the section of the RTA that the landlord is relying on and a vacate date Step 2 If the tenant/resident does not vacate the premises, the landlord makes an Application to VCA CAT for a Possess essio ion Order der Step 3 A hear aring ing takes place at VCAT, and a possession order is made in respect of the premises/room Step 4 The landlord/RHO purchases a Warrant t of Posses sessio sion from VCAT Step 5 The warrant of possession is exec ecuted ed by police and the tenant/resident is removed from the premises 13 13
The law Residential Tenancies Act 1997 (Vic) “RTA” Victorian Civil and Administrative Tribunal Act 1998 (Vic) “VCAT Act” Comm mmon on reason sons s for evicti ction on in RT RTA: A: • Rental arrears (s 246) These reasons listed in the • Danger (s 244) RTA give rise to the time frame Illegal use of the property (s 250) • the tenant/resident has before • Successive breaches (s 249) further steps towards eviction • Repairs/ demolition (ss 255 & 256) are taken by the • Landlord moving in (s 258) landlord/Rooming House • Property to be sold (s 259) End of fixed term tenancy (s 261) • Operator (“RHO”) • No specified reason (s 263) 7
Understanding the process A. Notice to Vacate
Notice to Vacate What is it? A NTV is the first necessary step for a landlord to take when they wish to evict a tenant/resident. It is the originating document, it sets VCAT’s jurisdiction and contains the reason/s the landlord wishes to evict the tenant/resident. An NTV must be legally valid: i.e. contain certain information, state relevant reason, give appropriate minimum statutory timeframe. The NTV must also be properly served on the recipient. There re are different rent types of NTVs s which h commonly y arise se in tenanci ncies s and rooming ming house se accommoda dati tion: n: Reminder: the tenant/resident does • Rent arrears (most common NTV) – 14 days not have to leave when • Breach of compliance order – 14 days they receive a NTV Danger – immediate • Illegal use – 14 days • 9
Notice to Vacate Postage + Services Issues Service of Notices to Vacate must be either: (1) personally served on the tenant or (2) sent via registered post. Regist istered ered post: t: A NTV sent by registered post is deemed to be ‘given’ two business days after it is sent (e.g. sent Monday, ‘given’ on Wednesday). Minimum mum not otice ce periods ds: Each NTV has a relevant minimum notice period, which commences the day after the notice is ‘given’. Termina nati tion on date (vaca acate e date) First available termination date is the day after the minimum notice period expires 10 10
Notice to Vacate Requirements of a valid NTV Un Under er s 319 of the RT RTA, a NTV must: t: • Be in the relevant prescribed form (found online) • Be addressed to the tenant(s)/resident(s) • Be signed by the person giving the notice, or by that person’s agent Specify the reason(s) for giving the notice (unless no reason NTV) • • Specify a date by which tenant is required to vacate Failure ure to meet et these se requi quiremen ements ts may result t in an inval alid d NTV 11 11
Notices to Vacate Right of pre-emptive challenge (for certain NTVs) Some types of 60 day NTVs can be challenged pre-emptively at VCAT, e.g.: • NTVs given under ss 255-260 of the RTA can be pre-emptively challenged within thin 30 days ys of receipt (extensions can be sought); Common examples include ppty to be sold, LL or LL’s family to move in, ppty to be • demolished/renovated etc. • Challenge is via application to VCAT by a tenant/resident. • The applicant bears the onus of proof. The Tribunal will determine whether or not the NTV is valid. • If the NTV is found to be valid, the tenant cannot challenge the validity any further unless the Tribunal is satisfied that ‘exceptional circumstances’ exist to justify reconsideration. If a tenant does not pre-emptively challenge an NTV, they can still raise these arguments at a hearing for possession order as a defence opposing the issue of the NTV (plus an extension of time given under s 126 VCAT Act). Retaliation A ‘120 day no reason’ NTV (s 263 of RTA) maybe be deemed to have no effect under s 266 of the RTA if it was issued in retaliation to the tenant exercising a right under the RTA. E.g. requesting repairs, maintenance, or adjourning possession proceedings for rental arrears. Similarly, these NTVs can be pre-emptively challenged within thin 60 days ys of receipt. 12 12
Notices to Vacate Challenging NTV validity generally In addition to pre-emptive challenges, a tenant/resident might also challenge the validity of an NTV at the VCAT possession order hearing. The tenant is not required to lodge an independent application to VCAT to do this. Common grounds of challenge are: Insuf ufficient icient det etail il: most NTVs must state the reason for which they are given • and provide sufficient detail. It is not satisfactory to merely repeat the words of the Act. • No entit itlem ement ent to serve e an NTV: : the facts alleged in the NTV, which form the reason for it being served, are not proven to the relevant standard at VCAT. Inval alid d service: ice: NTV served by ordinary post, or insufficient termination period • provided. 13 13
Notices to Vacate What happens to an invalid NTV? VCAT’s jurisdiction to make a possession order under the RTA is based on • a valid NTV having been correctly served. • If the NTV is invalid, then VCAT has no jurisdiction to grant a possession order. • Most VCAT members are (correctly) strict about this point, and will not grant a possession order based on an invalid NTV. A VCAT member who grants a possession order on the basis of an invalid • NTV may be in jurisdictional error, and this decision may be appealed to the Supreme Court under section 148 of the VCAT Act. 14 14
Understanding the process B. Application for possession
Application for possession What is an application for possession? After the tenant/resident has been issued with a notice to vacate, the landlord can make an application to VCAT for possession of the property/room (s 322). This application can only be made if the NTV has been served on the tenant/resident. Generally the application will be made after the expiration date on the NTV if the tenant/resident has not vacated. This is the first interaction with VCAT. Prior to this application, VCAT would have no knowledge of the dispute. Once the application has been lodged, VCAT will process the application and list it for hearing. 16 16
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