Reasons for eviction must be clear – a win in the Supreme Court for Victoria’s tenants

Reasons for eviction must be clear – a win in the Supreme Court for Victoria’s tenants

Wednesday, 5 September 2018

Our Economic and Social Rights (ESR) program has won an appeal against an eviction for a vulnerable client and helped clarify the law around eviction.

Mitra is an Iranian asylum seeker who has lived in a unit in Footscray for two and a half years. The 49-year-old has physical disabilities and has also been diagnosed with depression and anxiety.

In November Mitra’s landlord gave her a 60-day notice to vacate. It read ‘the premises are to be occupied by my great grandson who is dependent on me, immediately after the termination date.’ 

Under Victorian law, tenants can be evicted by landlords under specific circumstances, including that a member of their immediate family or a dependant who normally lives with the landlord would be moving in. 

Mitra defended the landlord’s eviction application in VCAT, which ruled in the landlord’s favour. However, upon review, our lawyers considered that the tribunal had erred in its decision because it had not considered whether the great grandson was, in fact, living with and dependent on the landlord. We also questioned whether the notice issued to our client contained enough detail about why she was being evicted. 

Under her visa, Mitra cannot apply for public housing. She lives on $344 in social security payments each week and spends $260 on rent. In these circumstances, finding a rental property is extremely difficult.

‘Because protections for tenants are so limited, and the consequences of eviction are so significant, VLA assisted Mitra to appeal this decision in the Supreme Court to avoid her wrongful eviction,’ said Damian Stock, Managing Lawyer of the ESR program.

In May, Associate Public Defender Gemma Cafarella told the Supreme Court that VCAT had failed to consider whether the great grandson normally lived with the landlord, and whether he was wholly or substantially dependent on the landlord.

Yesterday Associate Justice Melissa Daly agreed that the VCAT Member had failed to properly consider whether the landlord had a proper basis for evicting Mitra. In a written judgment she also provided guidance on the detail a landlord must provide when setting out the reasons for an eviction – a fundamental safeguard for all people facing eviction.

‘The reasons stated on the notice to vacate are all a tenant receives before a proceeding to evict them from their home. It is therefore fundamental that the notice to vacate contains proper detail. Yesterday’s decision will inform landlords and guide VCAT on the level of detail that is sufficient to guarantee that safeguard,’ said Mr Stock.

After her hearing Mitra’s landlord increased her rent and issued a new notice to vacate. So far, she has been knocked back from several private rental properties. Outside court Mitra thanked her legal team and said the fear of homelessness had led to experiencing ‘excessive stress’. Her new VCAT hearing will take place later this month.

Mr Stock said Mitra’s case is another that points to why reforms to the Residential Tenancies Act are needed. ‘Mitra’s situation paints a picture of a ruthless housing market. The stress and hardship this fear of eviction is causing – and will continue to cause – highlights why the tenancy reforms are needed.’

More Information

Read Mitra's story on The Age website.

Was this helpful?