There is no doubt that more and more notices to vacate are being challenged by renters these days. Whether this is triggered by the current market conditions or other factors is debatable, however, the fact remains that many investors are not easily obtaining possession of their properties when they want or need it.

VCAT must consider the reasons behind a possession order

It is legislated under section 330 of the Residential Tenancies Act, that based on the circumstances of any application, VCAT must consider whether it is reasonable and proportionate to make a possession order considering the interests of, and the impact on, both the renter and the rental provider.

In preparing to hear a possession case, a referee must consider the reasonable and proportionate test and how it applies to each client’s individual circumstances.

If you have concerns about gaining possession of your investment property, speak to our highly experienced team of property management 

What will a referee consider when faced with a VCAT possession case?

A referee will consider:

- The impact of eviction on the Renter and/or their dependents and the impact on the Residential Rental Provider if a possession order is not given

- The attempts made by the Renter to secure alternative housing

- Financial considerations and situations for both parties

- In the event of breaches to the lease, the nature, frequency, and duration of the conduct of the Renter which led to the notice to vacate being given

- How many breaches have been served to the Renter and the severity of those breaches

- Whether the breach was caused by the conduct of any person other than the Renter or if domestic violence is a factor

- Whether the breach has been remedied as far as is practicable

- Whether the Renter has or will soon have the capacity to remedy the breach and comply with their obligations under their rental agreement

- Can the tenancy be sustained?

- The effect of the conduct of the Renter on others

- Whether any other order or course of action is reasonable or available instead of making a possession order

Each party is required to not only put their case forward but to demonstrate the impact on them with supporting documentation and evidence to support their claim.