A notice to vacate is the first legal document which begins the eviction process.
It’s important to know that a notice to vacate is only the first step in the eviction process. If the renter receives one, they do not have to leave. Rather, a renter can stay in the property and have the Victorian Civil and Administrative Tribunal (also known as VCAT) decide whether they need to move out.
Under the law, there are certain requirements a notice to vacate must meet, including:
VCAT will decide whether the notice to vacate has met the legal requirements. If a notice to vacate does not meet the legal requirements, it will not be valid and the eviction will not proceed. The rental provider will need to issue a new notice to vacate if they want to proceed with an eviction.
The law sets out all the reasons that a rental provider (previously called a ‘landlord’) can give a notice to vacate to a renter. The rental provider cannot give a notice to vacate for no reason.
The reason listed on the notice to vacate corresponds with a minimum notice period that the rental provider must give the renter to vacate. This minimum notice period should be listed under ‘termination date’ section on the notice to vacate. The termination date is important because if your client doesn’t move out by this date, your client might have to go to VCAT for a hearing which will determine whether or not they can stay in the property. The minimum notice period timeframes are set out in the law.
We’ve provided some of the common reasons for giving a notice to vacate and corresponding minimum notice periods. Note that the timeframes listed below are for general tenancies, not rooming houses. Notice periods in rooming houses are generally shorter.
In some instances, a rental provider may give a renter an ‘immediate’ notice to vacate. This means that if the renter doesn’t leave immediately, the matter will be listed for hearing at VCAT as a priority.
| Reason for giving a notice to vacate | Minimum notice period to vacate |
|---|---|
| Danger | Immediate - 0 days |
| Damage | Immediate - 0 days |
| Unfit for human habitation | Immediate - 0 days |
| Threats and intimidation | Immediate - 0 days |
| Rent arrears | 14 days |
| Illegal use | 14 days |
| Non-compliance with Tribunal order | 14 days |
| Successive breaches | 14 days |
| Repairs/demolition | 60 days |
| Rental provider moving in | 60 days |
| Property to be sold | 60 days |
If a renter stays in the property, the rental provider can apply to VCAT for a ‘possession order’. This means that a hearing will be listed sometime after the termination date.
Read our Guide to VCAT hearing processes for more information about how to prepare.
A renter can only be evicted from a property if the rental provider is granted a ‘possession order’ by VCAT. A possession order is a document which states why the renter is being evicted, when the renter must vacate the property, and when the rental provider can get a warrant to remove a renter from the property. The possession order will also state whether the renter was at the hearing. This is important because if the renter was not at the hearing, they can ask for a review. [See more about review hearings on our guide to VCAT hearings.]
After a possession order is made, if the renter stays in the property, the rental provider can ask VCAT to issue a ‘warrant of possession’. This warrant is sent by VCAT to the local police station. It is then up to the police to ‘execute’ the warrant. This means police come to the property, remove anyone at the property and change the locks.
In practice, police will often visit the property and let the renter know when they intend to execute the warrant and change the locks to give the renter at least a couple of days to leave. You can contact the police directly to ask for more time before executing the warrant so that your client can leave the property.
Most warrants must be executed within 14 days of police receiving it. When the locks are changed, the rental agreement is legally over.
Justice Connect and the following services may be able to provide free advice or assistance regarding a notice to vacate:
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The content on the Workers’ Resource Hub is legal information for general guidance and not legal advice. The content on this webpage was last updated in August 2023. See full disclaimer and copyright notice.
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