Hi there housing staffers. It’s Mark Smoljo with your monthly episode of Tales from the Tenancy Vaults. This month I want to talk about what happens when your properties are occupied by people who shouldn’t be there. This seems to be happening a lot lately – I’ve certainly been getting a number of phone calls about it on the CHIA Vic Help Line. It’s probably a reflection of the housing crisis that Victoria is experiencing. There are many people desperate for housing so if they hear of a vacancy or notice an empty property they seize the chance to occupy it.
There are two broad types of illegal occupants:
- Relatives or friends of your ex-tenant who has now departed.
- Strangers unknown to you or the previous tenant – classic ‘squatters’
Family and friends
- If your registered tenant has not given notice or otherwise made you aware that they have gone, then they have effectively ‘assigned’ the property. You should firstly try to talk to the occupants and explain to them that they can’t keep staying there. If that doesn’t work, you will need to send a notice to vacate under section of the Residential Tenancies Act (RTA) to your registered tenant (the previous occupant). After adequate time for postage you can then apply to VCAT for an order of possession. Once you get your order you can apply for a warrant and get the police to remove the occupants while you change the locks.
- If your registered tenant has given you notice or you have evicted them, then their relatives or friends are occupying the premises without your permission. In this case, again try to talk to the occupants and explain to them that they can’t keep staying there.
If that doesn’t work this time you will need to apply to VCAT under Section 344 for an order of possession where rented premises are occupied without consent. Send a copy of your application by registered post to ‘The Occupants’ at the address of the rented premises.
At the hearing, the Tribunal may either direct the principal registrar to issue a warrant or require you to fix a prescribed notice to the front door of the premises. They will usually do the latter. The notice will request the occupants to appear before the Tribunal on a day after the end of seven days after the giving of the notice and show cause why a warrant of possession should not be issued.
If they don’t show at the Tribunal, then the Tribunal will direct the principal registrar to issue a warrant ‘without delay’. If they do show, then the Tribunal will hear both sides of the argument and decide whether you are entitled to a warrant of possession. In these cases there is no need to apply for a warrant and there is no charge for the warrant.
In both of these scenarios you need to consider whether a tenancy has been created. If the tenant has been living there for a number of years (e.g. family, partners that were not ‘registered’ tenants), and especially if they have been paying rent, then a tenancy may have been created, and you should just sign them up.
The only argument you could have against this is if these occupants did not meet your eligibility criteria. The Tribunal certainly might consider that a tenancy has been created in these circumstances if the case gets to them.
If they have not been living there then you can use arguments about eligibility and the sanctity of your waiting lists in the Tribunal hearing.
Where the premises are occupied by strangers unknown to you or the previous tenant, you have two choices. The simplest one is to just consider them as trespassers, report the matter to the police and go and change the locks and make sure the property is secure. The second (much slower) alternative is to use step two above.
Whichever of these methods you use, always remember OH&S. If you are concerned about your safety with illegal occupants always go the property accompanied by a colleague or the police.
One final points about illegal occupations – the best way to avoid them is to fill vacancies quickly. The shorter the time a property is vacant, the less chance there is of it being illegally occupied!
If you have any questions on this, or suggestions for future topics, please email Mark Smoljo, or you can ring him at the office on 9654 6077 on a Monday or Thursday.