Victorian Consolidated Legislation

Landlord and Tenant Act 1958 - SECT 82

Restrictions on eviction

82. Restrictions on eviction



(1) Notwithstanding anything in this Act, except as provided by this Division
the lessor of any prescribed premises shall not give any notice to terminate
the tenancy or take or continue any proceedings to recover possession of the
premises from the lessee or for the ejectment of the lessee therefrom.

(2) A notice to quit given in contravention of this section shall not operate
so as to terminate the tenancy in respect of which the notice was given.

(3) Subject to this Division, a lessor may apply to the Tribunal for an order
for the recovery by him of any prescribed premises (or of any goods leased
therewith) or for the ejectment of the lessee therefrom if the lessor, before
making the application, has given to the lessee, upon one or more of the
prescribed grounds but upon no other ground, notice to quit in writing for a
period determined in accordance with the next succeeding section, and that
period of notice has expired.

(3A) For the purposes of an application under subsection (3), the Tribunal may
exercise any powers conferred on it by Part 11 of the
Residential Tenancies Act 1997 to the extent that those powers are consistent
with this Division.





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(4) Service of the notice to quit may, without prejudice to any other mode of
service, be effected-

   (a)  by delivering the notice to some person apparently over the age of
        sixteen years and apparently residing in or in occupation of the
        premises;

   (b)  by delivering the notice to the person by whom the rent of the
        premises is customarily paid; or

   (c)  by substituted service in accordance with an order of the Tribunal-





and service of the notice in any manner authorized by this subsection shall,
notwithstanding that the lessee has died and that probate of his will or
letters of administration of his estate have not been granted, be effective
for all the purposes of this Part.

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(6) The prescribed grounds shall be-

   (a)  that the lessee has failed to pay the rent in respect of a period of
        not less than twenty-eight days;

   (b)  that the lessee has failed to perform or observe some other term or
        condition of the lease and the performance or observance of that other
        term or condition has not been waived or excused by the lessor:
        Provided that notice in writing specifying the breach of such
        performance or observance has been served on the lessee and the lessee
        for a period of not less than fourteen clear days has failed to remedy
        such breach;

   (c)  that the lessee has failed to take reasonable care of the premises or
        of any goods leased therewith or has committed waste;

   (d)  that the lessee or any person residing in or visiting the premises has
        been guilty of conduct which is a nuisance or annoyance to adjoining
        or neighbouring occupiers;

   (e)  that the lessee or any other person has been convicted during the
        currency of the lease of any offence arising out of the use of the
        premises for any illegal purpose or that a court has found or declared
        that the premises have during the currency of the lease been used for
        some illegal purpose;

   (f)  that the lessee has given notice of his intention to vacate the
        premises or has signified in writing his willingness to vacate the
        premises when required to do so and, in consequence of that notice or
        signification, the lessor has agreed to sell or let the premises or
        has taken any other steps as a result of which he would be seriously
        prejudiced if he could not obtain possession;

   (g)  that the premises-

   (i)  being a dwelling-house-are or within twelve months after service of
        the notice to quit will be reasonably required by the lessor for
        occupation by himself, or by his son, daughter, mother, father,
        brother or sister, or by some person who ordinarily resides with and
        is wholly or partly dependent upon him; or

   (ii) being business premises-are or within twelve months after service of
        the notice to quit will be reasonably required for occupation by the
        lessor or by a person associated or connected with the lessor in his
        trade, profession, calling or occupation;

   (h)  that the premises are used as, or have been acquired for use as, a
        parsonage, vicarage, presbytery or other like premises and are
        reasonably required for the personal occupation of a minister of
        religion (including a person who, although not ordained, is performing
        all the duties of a minister of religion);

        (i)    that the lessor is a trustee or personal representative and the
               premises are or within twelve months after service of the
               notice to quit will be reasonably required by a beneficiary
               under the trust or in the estate (as the case may be) for his
               personal occupation or the occupation of his son, daughter,
               mother, father, brother or sister, or for the occupation of
               some person who ordinarily resides with and is wholly or partly
               dependent upon him;

   (j)  that the lessor is a personal representative or trustee of a
        deceased's estate, that the gross value of the premises constitutes
        not less than half the gross value of the estate of which it forms
        part and that vacant possession of the premises is required in order
        that a trust for sale may be properly carried out;

   (k)  that the lessor is a person, body or authority carrying on-

   (i)  an institution, being a hospital, after-care home, home for the aged
        or infirm, crèche or kindergarten; or

   (ii) a school, college or other educational establishment- or a trustee for
        such a person, body or authority, and the use of the premises is
        reasonably required for the purposes of the institution or
        establishment (including the accommodation of the staff of the
        institution or establishment);

   (l)  that the premises, being a dwelling-house, have been occupied, or are
        occupied, in consequence of his employment by some person in the
        employ of the lessor and are reasonably required for the personal
        occupation for residential purposes in consequence of his employment
        of some other person employed by, or about to become employed by, the
        lessor;

   (m)  that the premises, being a dwelling-house situated on or in close
        proximity to any grazing area, farm, orchard, market garden, dairy
        farm, poultry farm, pig farm or bee farm belonging to or carried on by
        the lessor are reasonably required for the personal occupation for
        residential purposes of a person who is employed by, or about to be
        employed by, or who has entered into or is about to enter into a
        share-farming agreement with, the lessor in connexion with the
        carrying out of operations on the said area, farm, orchard or garden;

   (n)  that the lessor has agreed to sell the premises by an agreement which
        requires the purchaser to pay not less than one-fourth of the whole
        purchase money within twelve months from the date thereof and by which
        the purchaser is entitled to vacant possession of the premises and the
        premises-

   (i)  being a dwelling-house-are or within the said period of twelve months
        will be reasonably required by the purchaser for occupation by himself
        or by his son, daughter, father, mother, brother or sister, or by some
        person who ordinarily resides with and is wholly or partly dependent
        upon him; or

   (ii) being business premises-are or within the said period of twelve months
        will be reasonably required for occupation by the purchaser or by a
        person associated or connected with the purchaser in his trade,
        profession, calling or occupation;

   (o)  that the premises are reasonably required by the lessor for
        reconstruction, demolition or removal;

   (p)  that the lessee has become the lessee of the premises by virtue of an
        assignment or transfer which has not either expressly or by
        implication been consented to or approved by the lessor;

   (q)  that the lessee has sub-let the premises or some part thereof by a
        sub-lease which has not either expressly or by implication been
        consented to or approved by the lessor;

   (r)  that the premises, being shared accommodation, are required by the
        lessor and-

   (i)  at the time of giving the notice to quit and during the period of
        twelve months immediately prior thereto the lessor has resided in the
        dwelling-house of which the shared accommodation forms part; and

   (ii) at the time of giving such notice and during the said period of twelve
        months not more than one lease of shared accommodation in that
        dwelling-house has been in force at any one time;

   (s)  where the premises are a dwelling-house, that the lessee without just
        cause or excuse and without the consent of the lessor (which consent
        has not been unreasonably withheld) at the date of the giving of
        notice to quit is not residing and during the period of three months
        or more immediately before that date has not resided in the premises
        or any part thereof;

   (t)  where the premises are a dwelling-house (not including premises leased
        to the lessee as an apartment-house) that the lessee by the
        sub-letting of the premises or parts of the premises is receiving from
        the sub-lessee or sub-lessees a rent of or rents aggregating an amount
        which exceeds the rent paid by the lessee to the lessor by more than
        One hundred per centum;

   (u)  that the premises are a garage (not ordinarily used for residence)
        within the curtilage of a dwelling-house not leased to the lessee, and
        that the lessor requires possession of the garage in order that the
        dwelling-house together with the garage may be occupied by him or
        leased to a lessee or sold with vacant possession;

        (v)    that the premises being a dwelling-house, are owned by the
               lessor, being a man of or over the age of sixty-five years or a
               woman of or over the age of sixty years, that the lessor's
               income if he is living alone does not exceed a rate of $1,300
               per annum or if he is living with his partner does not together
               with that of his partner exceed a rate of $2,600 per annum,
               that neither the lessor nor his partner, if living with him,
               owns any other dwelling-house in Victoria (exclusive of the
               dwelling-house in which he resides), and that the premises are
               required for sale with vacant possession;

   (w)  that the lessee of the premises (being premises which immediately
        before the commencement of the Landlord and Tenant (Control) Act 1957
        were business premises) has since the said commencement without the
        express or implied consent of the lessor used the premises or some
        part thereof for the purpose of residence or caused permitted or
        suffered the premises or some part thereof to be used by any person
        for the purpose of residence;

        (x)    where the premises are a dwelling-house, that the financial
               circumstances of the lessee are such that he could without
               undue financial hardship purchase or lease other adequate and
               suitable premises for the purpose of residence at a purchase
               price or rent based on current property values; or

   (y)  where the premises are a dwelling-house, that the lessee has other
        adequate and suitable premises presently available for his occupation
        for residential purposes.

(7) In the last preceding subsection, unless the contrary intention appears,
lessor includes, where there is more than one lessor, any one or more of the
lessors, and lessee includes, where there is more than one lessee, any one or
more of the lessees.

(8) Notice to quit on a ground specified in paragraph (p) or (q) of subsection
(6) of this section shall not be given-

   (a)  unless the assignment transfer or sub-lease was in breach of a
        covenant or condition of the lease; or

   (b)  (where it was not in breach of such a covenant or condition) unless
        the assignment or transfer was made or the sub-lease granted on or
        after the fourteenth day of March One thousand nine hundred and
        forty-seven; and

   (i)  (in the case of a lease for a fixed term) the term of the lease; or

   (ii) (in the case of a periodic lease) the period current at the date of
        the assignment transfer or sub-lease-

has expired.