Notice to vacate - Tenants Union of Victoria

Notice to vacate

If the landlord wants you to move out of the property, they must give you a valid notice to vacate. There are various reasons why your landlord can give you a notice to vacate, and the length of the notice period depends on why the landlord is giving you notice and whether or not you have a fixed-term tenancy agreement.

It is important to note that just because you receive a notice to vacate, it doesn’t necessarily mean that you have to move out. If the landlord wants to evict you, they must first apply to the Victorian Civil and Administrative Tribunal and convince the Tribunal that they should be granted a possession order.

Immediate notice to vacate

The landlord can give an immediate notice to vacate if the rented premises are destroyed or unfit to live in. An immediate notice can also be given if you (or a visitor to your home) deliberately damage the property or endanger the safety of neighbours.

The Tribunal requires substantial proof from landlords in these cases. If you receive an immediate notice to vacate you should seek urgent advice from the Tenants Union.

14-day notice to vacate

A 14-day Notice to Vacate can be given when:

  • your rent is 14 days in arrears (ie overdue)
  • you fail to pay the bond (if your tenancy agreement says you have to pay a bond)
  • you sub-let the premises without the landlord’s consent
  • your lease has a condition prohibiting children from living on the premises and you are breaking that condition
  • you used the property for an illegal purpose (or allowed other people to do so)
  • you fail to comply with a compliance order made by the Tribunal
  • you have breached a duty and have received two previous breach of duty notices for the same breach
  • you are a public tenant and
  • you committed an offence in your property or in a common area
  • you mislead the public housing landlord about your eligibility for public housing

60-day notice to vacate

A 60-day to a notice to vacate can only be given where there is no fixed-term tenancy agreement, or when the termination date on the notice (ie the date that you have been given to vacate on or by) is after the expiry date of your fixed-term agreement.

The landlord can give you a 60-day notice to vacate when, immediately after the 60-day period, the premises will be:

  • demolished
  • used for any purpose other than as a rented residence (such as a business)
  • 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 premises again for 6 months after the notice is given (unless they are letting it to a person referred to in the notice or they have permission from the Tribunal).

A 60-day notice to vacate can also be given if the landlord has entered into a contract of sale of the rented premises.

120-day notice to vacate

The landlord can serve a 120-day no-reason notice to vacate when there is a periodic tenancy agreement (that is, there is no fixed term or the fixed term has ended) or when the termination date on the notice (ie the date that you have been given to vacate on or by) is after the expiry date of your fixed-term agreement.

End of fixed-term lease

The landlord can give you a notice to vacate at the end of your fixed term. The termination date on the notice must be the same as the expiry date on your fixed-term agreement. If you have a fixed-term agreement for less than 6 months, the landlord can serve a 60-day notice to vacate. If you have a fixed-term agreement for 6 months or more, the landlord can serve a 90-day notice to vacate.

If you leave before the end of the fixed term you may still be liable for rent until the date that your fixed term expires.

Landlord’s principal place of residence

If the property was the landlord’s main place of residence before you moved in, they may give you a 14-day notice to vacate if:

  • you have a fixed-term tenancy agreement; and
  • the termination date on the notice is on or after the expiry date on your tenancy agreement; and
  • it is stated on your tenancy agreement that the premises were the landlord’s main place of residence before you moved in; and
  • it is stated on your tenancy agreement that the landlord intends to move back in at the end of the fixed term.

Serving a notice

A notice to vacate must be in the proper form and be signed and dated by the landlord or agent.
It cannot just be left in your letterbox or under your door. It must be given to you in person or be sent by registered mail. Or the landlord might give you the notice by electronic method such as email if you agree.

If the notice is sent by mail, the notice period must include the time it would take to reach you. See Australia Post delivery times.

The reason for the notice must be clearly stated and it must be a valid reason (except in the case of a 120-day no-reason notice to vacate).

If it does not meet all of these requirements, a notice to vacate is invalid.

Challenging a notice to vacate

You can challenge a 60-day notice to vacate (except for a notice for the end of a fixed-term agreement) if you think that it is invalid. However, if you want to challenge before the landlord applies to the Tribunal for a Possession Hearing, you must do so within 30 days from the date that you receive the Notice to Vacate. If you don’t challenge the notice within 30 days, you can still challenge its validity at the Possession Hearing.

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 (eg 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

If you have received a notice to vacate and would like to know if you can challenge it, contact the Tenants Union as soon as possible.

Leaving before the notice expires

If you have a fixed-term agreement you have a legal right to stay until the end of that term unless you receive a valid notice to vacate and the Tribunal has granted the landlord a possession order. However, if you do want to move out earlier you can always try to negotiate an agreement with your landlord or agent. Make sure that you get the agreement in writing, signed by you and your landlord or agent.

If you have a periodic tenancy agreement, in some circumstances you may able to give a 14-day notice of intention to vacate after receiving a notice to vacate. You should contact the Tenants Union to check whether you can give 14 days’ notice.

This information is a guide only and should not be used as a substitute for professional legal advice.

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Tenants Union of Victoria Ltd ACN 081 348 227 | Published: February 2013
Tenants help 03 9416 2577 | 55 Johnston Street Fitzroy | tuv.org.au
The Tenants Union of Victoria acknowledges the support of the Victorian Government.

The Tenants Union of Victoria acknowledges the support of the Victorian Government.