How difficult is it for Landlords to evict tenants who fail to pay their rent?

Property Law: 27 October 2025

Author: Isaac Choi - Our People

The short answer to the question of this topic is it is not as easy it should be. It makes sense logically that it should be a fairly easy process for the landlords to evict their tenants who fail to pay their rent on time as agreed to in the lease agreement. However, the Residential Tenancy Act 1997 (Vic) (the Act) says otherwise. In fact, obtaining court orders to evict the tenant and repossess the property requires carefully planning and the landlords need to comply with the stringent process under the Act.

This article contains useful information for domestic and foreign resident landlords with investment properties in Australia.

Three Issues the Landlord should consider in obtaining a possession order

1. Getting the right jurisdiction

Most landlords are often of the understanding that Victorian Civil and Administrative Tribunal (VCAT) is the only place where they can obtain a possession order under the Act. However, this is not always the case.

When the landlord is a resident of different States, VCAT does not have and cannot exercise federal jurisdiction. In other words, VCAT is unable to hear and determine the landlord’s application for a possession order under section 330 of the Act.

In the circumstances, under Pt 3A of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the landlord is entitled to commence the proposed application at the Magistrates’ Court of Victoria as it has had the jurisdiction to resolve controversies involving federal jurisdiction.

Our office assisted a client who initially instructed his real estate agents to handle the matter. Not surprisingly, the agents were not aware of this jurisdictional issue and wrongly made the application to VCAT, which was later rejected and dismissed.

2. Serving the right notice

Before applying to the Court or Tribunal for a possession order, it is extremely important to prepare and serve the right Notice to Vacate to the tenant at default. The Act provides numerous provisions as basis for the landlords to issue their notices. For example:

• Section 91ZZD of the Act gives right for the landlords to issue a notice at the end of fixed term residential rental agreement. Notice that this section requires the landlord to provide the tenant with either 60 or 90 day-notice.

• On the other hand, section 91ZM of the Act gives the right for the landlords to issue a notice on the basis that the tenant has been at default of paying the rent, and the landlords are only required to provide 14 days until they can terminate the rental with the tenant.

In certain instances, the landlord may not need to issue a notice prior to applying to the Court/Tribunal. We assisted a client who commenced proceedings for a possession order under section 91Z of the Act. We have later discovered that the property was vacant. When this occurred, we subsequently issued second proceedings under sections 91F and 91ZG of the Act, which allows the rental agreement to be terminated on the basis that the tenant has abandoned the property.

As outlined above, it is imperative for the landlords to consider what their options are and determine what would be the best strategy in obtaining a possession order.

3. Serving the documents effectively

Depending on the type of document and circumstance, a method of service on the document may vary. If the Landlord included a clause in the lease agreement that a notice under the Act could be provided by way of email and notes the tenant’s email address, then service via email may be sufficient. However, the issue of service is also not a straightforward one and must be tread carefully in order to avoid any criticism from the court/tribunal on the day of the hearing.

Conclusion

The contents above cover three broad issues, however, an application to the Court/Tribunal for a possession order is a technical one, meaning it is best to seek assistance from an experienced legal practitioner. These issues include, but not limited to, things like calculating the correct termination date in the notice and the correct rental arrears. In addition, the Act is complicated whereby the reader must pay a close attention to certain conditions that are associated with each ground of claim. Filing a defective application to the Court/Tribunal may significantly delay your chances of obtaining the possession order.

Aitken partners have experiences in successfully obtaining possession order for the distressed landlords. The success story comes from working with bright and experience barristers such as Gregory Buchhorn, who we recently worked collaborated to achieve a prompt and favourable outcome for our client.

Further, it is also important to emphasise the role of the real estate agents and property managers. A competent and trustworthy agents and managers can go a long way in protecting the landlord’s interest. We work closely with these qualified agents and managers, who we can confidentially refer to our clients.

Do not hesitate to contact Aitken Partners if you require assistance or wish to discuss about your matter further.