Grounds, and what has to come first
Section 498ZX of the Residential Tenancies Act 1997 lists the grounds on which a provider may give a written notice to vacate. Five of them are set out below with the step the Act requires before the notice can be given.
| Ground | What must come first |
|---|---|
| (a) You owe at least 14 days of unpaid rent. | A breach of duty notice for that ground, and 14 days pass after it without you taking steps to fix the breach. |
| (b) Your act or omission puts the safety of other residents or staff at risk. | A valid temporary relocation notice on a matching ground, given at least 24 hours earlier. The provider must also reasonably believe the conduct is likely to happen again. |
| (c) You are seriously disrupting other residents’ proper use and enjoyment of the dwelling. | The same two conditions as ground (b). |
| (d) You are a danger to yourself and can no longer be appropriately supported in the dwelling. | The same two conditions as ground (b). |
| (e) You can no longer be appropriately supported in the dwelling. | The same two conditions as ground (b). |
For every notice to vacate under the section, the termination date must be at least 90 days after the notice is given, and Consumer Affairs Victoria’s pages say the same. The notice must also be signed by the provider and given to you and to your guardian or administrator, if you have one. Your provider can cancel the notice before you move out.
When the Act forbids a notice
A provider must not give a notice to vacate for serious damage or destruction, or for a failure to comply with an order, if any of the following significantly contributed to the damage or the failure:
- for damage or destruction, fair wear and tear;
- for damage or destruction, accidental damage;
- reasonable use of the dwelling;
- reasonable use of aids, equipment, fixtures and fittings in the dwelling;
- something done or not done by a person other than you;
- behaviour that arises from your disability, including circumstances that aggravate your disability or your emotional wellbeing;
- someone failing to put in place or follow your support plan or NDIS behaviour support plan;
- unauthorised use of a restrictive practice, as the Disability Act 2006 defines it;
- circumstances suggesting you have been subjected to abuse or neglect.
Where repairs or renovation would affect your own room but not every room in the dwelling, and an equivalent room at an equivalent rent is free in the dwelling, the provider must offer you that room before it can give a notice to vacate for the work; only if you refuse it can the notice follow.
Who else is told
A notice to vacate does not stay between you and the provider. If you are an SDA recipient, the provider must send a copy to the Chief Executive Officer of the NDIA and to the Director within 24 hours of giving it to you. The Director then has to send the Public Advocate a copy within 24 hours, or as soon as reasonably practicable. For grounds (b) to (e) above, and one further ground in the section, the provider must also take reasonable steps to get a copy to the provider of your daily independent living support as soon as possible.
Temporary relocation
A notice of temporary relocation means moving out of your room or the property for up to 90 days, and your provider will find you a place to live during that time. If the notice tells you to leave the property, the place your provider finds must be suitable, and it lasts until you can come back. A notice to vacate can follow only for the same reason, and only at least 24 hours after the notice of temporary relocation.
Other ways an agreement ends
Section 498ZW lists the circumstances in which an SDA residency agreement ends. Among them:
- by a written agreement between you and the provider;
- after a notice to vacate, on the earliest of the day you move out or, if a possession order is made, the end of the day before possession is handed back to the provider;
- 90 days after the provider’s registration as an NDIS registered provider is revoked;
- 90 days after the dwelling stops being enrolled as SDA.
You can end it too. A notice of intention to vacate tells your provider you want to end the agreement and move out; it must be in writing and include your moving date, and your support person can give it on your behalf. Your provider must send a copy to the Director of Consumer Affairs Victoria. Separately, if your provider did not give you the information statement before the agreement was entered into or established, you can give a notice of intention to terminate. That notice must be in writing and name the date you intend the agreement to end, and your guardian or administrator can give it for you.
Possession orders and warrants
- If you are still living there after the date on a notice to vacate, your provider can ask VCAT for a possession order, which is an order that you must move out.
- The application must be made within 30 days of the date you should have moved out. Consumer Affairs Victoria’s example: a move-out date of 1 November means applying before 1 December.
- A warrant of possession means a police officer can come to the property and make you move out, but only between 8 am and 6 pm, Monday to Saturday; never on a Sunday or a public holiday.
- Your belongings cannot be removed under the warrant unless you agree.
The other tabs in the folder
- 1 · AgreementThe SDA residency agreement
- 2 · EntryWhen the provider can come in
- 3 · RepairsRepairs
- 5 · MoneyRent and your support provider
- FrontAll five tabs, on the folder’s front page