If you are a Landlord, self-managing your own tenancy, sometimes it can be hard to understand and follow the process to claim unpaid rent from the tenant.
There are strict rules around when the landlord can take action to recover unpaid rent. If a tenant is more than 14 days late on payment of rent under a residential lease, the landlord must provide the tenant with a notice to vacate under Section 91ZM of the Residential Tenancies Act 1997.
Once this notice is provided, and appropriately served on the tenant, the tenant then has 14 days to pay the arrears or respond to the notice. The tenant can respond to the notice and challenge it on the following grounds:
believe it was not given to them properly;
disagree with the reason given on the notice; or
were given the notice as a result of family violence.
If, after the 14-day period, the tenant has not paid the rent or challenged the notice, the landlord may then apply to VCAT for a notice to vacate.
At this hearing, VCAT will request that the following information be provided by the landlord:
Details of rental agreement and rent owed;
Details of notice to vacate supporting the application; and
Details of previous notices to vacate for rent arrears within the 12-month period.
If VCAT is satisfied, inter alia, that the notice was properly served on the tenant and that there are no special circumstances warranting the entry of a payment plan by the landlord and the tenant, then VCAT may order a possession order in favour of the landlord.
Once a possession order is granted, the landlord must then apply to VCAT for the possession order to be converted into a warrant of possession. The warrant of possession is then provided to the nearest police station for enforcement.
It is important to note that until the warrant is executed, the tenant has the right to apply to VCAT for a rehearing of the matter for various reasons.
Additionally, residential tenants have a ‘four strike rule’ when it comes to being served with a notice to vacate for unpaid rent. If, on the fifth notice, the tenant has not paid the rent, the landlord can make an application to VCAT for a possession order and at this hearing, VCAT cannot dismiss the application solely because the renter could pay off the unpaid rent under a payment plan.
It is crucial that all notices served on the tenant are in the proper form and are completely correct. In the event that there is an error on a notice served, VCAT reserves the right to ‘strike out’ the hearing on the day that it was listed (meaning that you may have waited multiple weeks for a hearing only for it not to progress to be heard in front of a member of VCAT).
Our office regularly accepts instructions to draft, advise and represent residential landlords at VCAT for non-payment of rent matters. Contact us on 03 9450 9400 to make an appointment for a consultation.