VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
RESIDENTIAL TENANCIES DIVISION
RESIDENTIAL TENANCIES LIST		VCAT REFERENCE NO. R2021/33037
CATCHWORDS	
Application for possession order – successive breaches by renter - whether breach of duty notices valid – notices relate to action of a sub-renter – validity of notice to vacate Residential Tenancies Act 1997 ss 91ZP, 91ZZO.	

FIRST APPLICANT
SECOND APPLICANT	Jose Reyna
Danielle Creet	
RESPONDENT	Apartment Stays Melbourne	
INTERESTED PARTIES	Launch Housing
William King	
WHERE HELD	Melbourne	
BEFORE	R. Phillips, Member	
HEARING TYPE	Hearing by telephone	
DATE OF HEARING	22 December 2021	
DATE OF ORDER	22 December 2021	
DATE OF WRITTEN REASONS	
17 February 2022	
CITATION	Reyna v Apartment Stays Melbourne (Residential Tenancies) [2022] VCAT 180	

ORDERS

VCAT finds:

1.	The residential rental provider did not comply with the Residential Tenancies Act 1997 in giving notice to vacate because it fails to sufficiently particularise the reason for giving the notice as required by s.91ZZO9(d). It does not specify the duty provision that was breached not provide sufficient detail about the alleged breaches by the renter.

2.	The notice to vacate is therefore not valid or effective.

VCAT orders that:

1.	The application for a possession order is struck out.

R. Phillips
Member			

APPEARANCES:		
For Applicant	Mr Nolan and Mr Hayden – Estate Agent
D Creet – Residential Rental Provider	
For Respondent	Mr Eanagiotopoulos	
Interested Party – Launch Housing
Interested party – Mr King	M Lander 

No appearance	

Reasons
Background
1	This is an application for possession based on a notice to vacate alleging successive breaches by the renter.
2	The rented premises were let to Apartments Stays Melbourne (‘head renter’). who then sub let the premises to Launch Housing (‘Launch’) who then sub let to Mr King, who is the sole renter and occupant of the premises.
3	On 3 November 2021 an application was lodged with the Tribunal alleging successive breaches.
Three breach of duty notices had been given to the head renter alleging a breach of section 60(2) of the Residential Tenancies Act 1997 (‘the RTA’). The notices were dated as follows:
•	16 August 2021(the First Notice).
•	29 September 2021(the Second Notice).
•	11 October 2021 (the Third Notice).
4	A notice to vacate was then served on the head renter on 11 October 2021.
5	The primary issue before the parties was the validity of the breach notices and accordingly the notice to vacate.
6	Mr King had been represented by Justice Connect who prepared submissions for the hearing, but as Mr King did not attend the hearing they could not represent him at the hearing.
7	On the day of the hearing I gave my decision and reasons. Ms Nolan requested written reasons.
8	The following are a restatement of those reasons with further details as required.
The Breach of Duty Notices
The first notice – 16 August 2021
9	Under the heading “Reasons for the Breach” the notice states as follows:

10. I believe you have breached your duty as a renter because

Section 60(2)
You have used the premises or common areas or permitted their use in a way that caused interference with the peace, comfort or privacy of neighbours.

The renter has had the police called on him multiple times by neighbours that are living in fear. All police calls were for escalated domestic arguments each occasion the renter has been asking the partner to leave/move out of the house.2/8 police arrived 4.30pm, witnessed and heard by the neighbour in unit 2 who has moved out due to the ongoing disturbances. 10/8 police arrived 8:45pm and the renter was taken away. Partner remained in the unit when then partner was away after these incidents. Since 11/8 there has been at least one other person in the house in addition to the partner; a picnic blanket has been put over the kitchen window. There is movement in the early hours of the morning as they slam the door. 16/8 Police attended the unit around 9:30am due to suspicious activity but renter did not answer the door. Front door to the building gets propped open daily which is a security risk for all residents; People entered the apartment # 4 earlier this morning at 7.15am.
11. The loss or damage caused is
Other residents are living in fear and scared to leave their homes. All residents are in lockdown and are home 24/7 and the renter of apartment 4 is extremely disruptive not to mention breaking the law with lockdown restrictions by having people over. There has been at least 2 people vacate their homes due to the renter in apartment 4.
12. Compensation or compliance required
I require you to remedy the breach within 7 days after receiving this notice by The renter is to be the only person living in the home. No partner and no friends to stay. They are to take down the picnic blanket off the lounge room window and repair the laundry doors if these are not yet fixed. If we continue to receive complaints, we will continue to issue breach notices. If other residents continue to feel like they are in danger then an immediate notice to vacate may be issued. If the above is not rectified in 7 days, you will need to and pay me $1,000.00 compensation.
10	It is abundantly clear that these reasons relate to the alleged action of the sub renter, Mr King. The head renter was not occupying the premises and therefore could not have committed the acts referred to in the notice.
11	Mr Hayden suggested that section 60(2) obligations relate to the actions of the renter and their visitors. This is correct, but there was no evidence to suggest that Mr King was a visitor of the head renter. I did not accept that proposition put forward by Mr Hayden.
12	In my view it was clear that this breach notice related to the activities of Mr King, who is not the renter in these proceedings. There was no evidence of a breach by the head renter.
The second notice – 29 September 2021
13	Under the heading “Reasons for the Breach” the notice states as follows:
10. I believe you have breached your duty as a renter because
Section 60(2)
You have used the premises or common areas or permitted their use in a way that caused interference with the peace, comfort or privacy of neighbours.
We have had many reports from other residents of ongoing issues of violence and arguments between the occupants, arguing, suspect behaviour, noise, breaches to the safety of the building by leaving the front door open, damage to property and regular police presence.
11. The loss or damage caused is
Other residents in the block do not feel safe living there.
12. Compensation or compliance required
I require you to remedy the breach within 7 days after receiving this notice by Only allowing access to the sole renter who is meant to live at the apartment. and pay me $1,000.00 compensation.
14	This notice refers to “the occupants”. The occupant is not the head renter, it presumably again relates to the actions of Mr King.
15	For the same reasons outlined above there is no evidence of a breach by the head renter.
The Third notice – 11 October 2021
16	Under the heading “Reasons for the Breach” the notice states as follows:
10. I believe you have breached your duty as a renter because
Section 60(2)
You have used the premises or common areas or permitted their use in a way that caused interference with the peace, comfort or privacy of neighbours.
2.10.2021 – reports from neighbours of a woman verbally abusing a man at the apartment which was disturbing the peace of other neighbours residing in the apartment block. This was ongoing form 4.45pm – 9.15pm..
11. The loss or damage caused is
Other residents in the block are scared to leave their homes and fear for their safety due to ongoing arguments. This noise from these arguments is interfering with their peace.
12. Compensation or compliance required
I require you to remedy the breach within 7 days after receiving this notice. The renter is to be the only person residing at the apartment and pay me $1,000.00 compensation.
17	For the same reasons as set out above there is no evidence that the alleged action of disturbing the peace is the action of the head renter. It simply refers to a woman and a man at the apartment.
Notice to Vacate
Particulars
18	There is considerable case law which sets out the requirements in relation to the amount of detail that is required to be given in a notice to vacate.
19	I do not intend to restate this other than to refer to the case of Eastcoast Housing Association v TUH (Residential Tenancies) [2021] VCAT 1269 (26 October 2021).
20	This case was similar to the current application in that this case involved an application for possession based on two notices to vacate for successive breaches under section 91ZP.
21	The notice to vacate in this case sets out the reasons for the notice at point 11.
You have breached a duty owed under a duty provision within part 5 of the Act for the third time. You have been given notice twice before to remedy the breach AND pay compensation.
As the third breach notice for interference of peace has been issued. Other reports and complaints received by residents have all been sent to the lease holder. Residents in the block fear for their safety due to ongoing arguments and verbal threats between renters, suspicious people entering the apartment, the front security door continually being continually propped open, damage to the apartment and common property. The breach notices were issued on 16/8, 29/9 and 11/10.
22	The notice to vacate in this application does not refer to a breach of a particular section of the RTA. While it mentions “interference of peace”, it also refers to other allegations that may or may not be subject to breach notices i.e. “the front security door continually being propped open” and “damage to the apartment and common property”.
23	In the case referred to above the Tribunal Member considered Supreme Court authority on this issue and concluded that a notice to vacate relying on successive breaches must refer to the section of the RTA that it is alleged has been breached on successive occasions.
24	This notice did not and in my view it is therefore invalid as it does not meet the requirements of section 91ZZO.
25	The notices, as stated above, also did not meet the requirements of section 91ZP in that they did not refer to the actions of the head renter.
26	A further point in relation to the third notice to vacate is that this was issued at the same time as the notice to vacate. This is not permitted under section 91ZP(2).
27	For the above reasons the notice to vacate cannot form the basis for an application for possession.
28	The notice is invalid and for this reason I struck out the application for a possession order.

R. Phillips
Member