How we make decisions about termination or possession orders
When we make a decision about a termination or possession order, we must decide if it’s reasonable and proportionate.
The difference between a termination order and a possession order
If a landlord wants to end a tenancy, they can apply to VCAT under section 548 of the Residential Tenancies Act 1997 for a termination order:
- A termination order ends the tenancy on the date stated in the order. The tenant is expected to leave by this date.
- There is no mechanism within the termination order to enforce the terms of the order.
If the landlord gets a termination order only and the tenant doesn’t leave by the date stated in the order, the landlord can apply for a possession order under section 550 of the Act.
The landlord can’t make an application under section 550 without first getting a termination order.
A possession order means the tenant must vacate by a specified date.
- If the tenant doesn’t leave, the possession order allows the landlord to apply to the VCAT registrar for a warrant of possession to be issued.
- The warrant of possession authorises the police to forcibly remove the tenant within a given timeframe (usually 14 days).
How we decide
To decide if a termination or possession order is reasonable and proportionate, we look at:
- the behaviour of the tenant - what they did, how often and for how long including whether the tenant broke their obligations under the tenancy agreement regularly and whether the breach is trivial
- whether the breach was caused by someone else
- whether the tenant has made an application for a personal or family violence safety notice or intervention order and:
- if an application has been made – whether the notice or order is still in force
- if a notice or order was made – whether it included an exclusion condition
- anything else about personal or family violence we consider relevant
- whether the breach has been remedied as far as possible
- whether the tenant is able to (will be able to) remedy the breach and comply with any obligations under the tenancy agreement
- the effect of the tenant's behaviour on others as tenants
- whether any other order or course of action is reasonably available instead of making the order for termination or possession
- the behaviour of the landlord or the landlord's agent
- anything else we consider relevant. It’s important to give us evidence of any of these issues to VCAT. This may include documents such as family violence notices or orders. You must also send any documents you plan to rely on to the other party and to VCAT before the hearing.
See section 538 of the Residential Tenancies Act 1997
We must also take into account:
- the interests of the landlord, tenant, any co-tenants or residents
- neighbours or any other person who has, or may be affected by the tenant's actions
- the impact of any order on these people. It’s important to send any evidence of these issues to VCAT and to the other party before the hearing.