In order to have you evicted, your landlord must:
- give you a valid Notice to Vacate, and
- apply to the Tribunal for a Possession Order
Your landlord has 2 ways in which to apply for a Possession Order-the standard procedure and the alternative procedure.
According to the standard procedure, your landlord applies for a Possession Order and the Tribunal sends you a Notice of Hearing, which tells you the date, time and place of the hearing.
Your landlord must send you a copy of the application. If the Tribunal is satisfi ed that your landlord is entitled to give you the notice and it has not been withdrawn, a Possession Order must be made. (This does not apply to a Notice to Vacate for rent arrears.)
If a Possession Order is granted, the landlord may purchase a Warrant of Possession, which authorises the police to evict you.
If the landlord is granted a Possession Order and you have nowhere to go, you can ask the Tribunal to postpone the warrant for up to 30 days.
The Tribunal must be satisfied that you will suffer hardship if it is not postponed and that it would be greater than any hardship your landlord would suffer. (This does not apply to a Possession Order arising from a Notice to Vacate for maliciousdamage, danger, for the premises being unfit for habitation or an order made using the alternative procedure.)
If your landlord has given you a Notice to Vacate for rent arrears or because you have a fixed-term agreement that is due to expire, they can use the alternative procedure.
The alternative procedure allows the Principal Registrar of the Tribunal to grant a Possession Order without a Tribunal hearing and without you having a chance to state your case.
There will only be a hearing if you lodge a Notice of Objection to your landlord’s application. If you receive a Notice to Vacate under the alternative procedure and you want to avoid being evicted, you should contact the Tenants Union for advice as soon as possible as strict time limits apply.
Tribunal hearings for rent arrears
At the hearing, the Tribunal may grant the landlord a Possession Order, or it may order that you can stay in the property but must repay the arrears.
If you are not sure if you can afford a payment arrangement contact a financial counsellor for advice. It is a good idea to take evidence to the hearing showing that you can afford to pay off the arrears.
For more information on how to avoid eviction for rent arrears, contact the Tenants Union.
Review hearings & eviction
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 review of the order.
You will need to do this before the police evict you. Once you have been evicted, the Tribunal has no power to get 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 go to the Tribunal, you should ring the Tribunal registry and ask them to tell you how to apply for a review, or contact the Tenants Union for advice.
When you apply for a review you should check that the Tribunal contacts the police to stop them from carrying out the eviction before your rehearing takes place.
When your application for a review 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 your landlord’s application will be reheard.
There is no fee for applying to the Tribunal for a rehearing.
It is illegal for a landlord or agent, or anyone acting on their behalf to attempt to physically evict you or to change the locks. Only the police can carry out an eviction.
If your landlord or agent attempts to evict you, you should call the police. If you believe that your landlord is about to illegally evict you or you have been illegally evicted, you should immediately go to the Tribunal at 55 King Street, Melbourne if possible and apply for an interim restraining order.
An order can be made without your landlord being present and it will be upheld until a return hearing is listed, when your landlord will be given the opportunity to present their side of the story and the order may be changed, depending on the evidence.
The Tribunal can make an order restraining your landlord from illegally evicting you, or one that allows you back into the property if possible.
If you are (or are about to be) illegally evicted you should contact the Tenants Union for advice as soon as possible. You should also lodge a complaint with the Director of Consumer Affairs Victoria.
There is a maximum penalty of $7,328.40 (at the time of printing) if your landlord is prosecuted and convicted. You can also seek compensation for any inconvenience, costs, loss or damage to your goods caused by an illegal eviction. (See ‘Complaints about landlords & real estate agents’ and ‘Compensation & compliance’.)