The Issue of “Immediacy” in Premises to Be Sold NTV

Zovi v Ray (Residential Tenancies) [2025] VCAT 1053

Decision Date: 28 November 2025

Key Issue: Whether a possession order should be granted following a notice to vacate for sale under s 91ZZB of the RTA, including whether the property was genuinely to be sold “immediately” with vacant possession, the effect of subletting under s 91R, and whether eviction was reasonable and proportionate under s 330A.

Full Case: Zovi v Ray (Residential Tenancies) [2025] VCAT 1053 (28 November 2025)

Background

Ms Ray had rented the premises from the Zovis for approximately 15 years. In March 2025, the rental providers issued an NTV under s 91ZZB on the basis that the property was to be sold with vacant possession.

The notice gave more than 60 days’ notice and was supported by an auction authority. Ms Ray did not vacate, and the Zovis applied to VCAT for a possession order.

Ms Ray opposed the application, arguing that:

• the property was not to be sold “immediately” after vacating,

• proposed works amounted to renovations rather than sale preparation, and

• her subtenants would remain in occupation under s 91R, preventing vacant possession.

Key Issues and Findings

1. Validity of the Notice to Vacate

VCAT found the notice was valid and complied with s 91ZZO, including the requirement for supporting documentary evidence.

The Tribunal accepted that:

• the auction authority demonstrated a genuine intention to sell, and

• the timing of the proposed auction (after the termination date) did not undermine the requirement of “immediate” sale.

The Tribunal interpreted “immediately” in a practical way, allowing for:

• short delays due to minor works (painting, carpet replacement), and

• reasonable preparation for sale, including anticipating the need for possession proceedings.

These steps were characterised as sale preparation, not renovation, and did not invalidate the notice.

2. Effect of Subletting (s 91R)

Ms Ray argued that her subtenants would automatically become tenants of the Zovis upon termination of her tenancy, preventing vacant possession.

VCAT rejected this argument, finding that:

• a possession order and warrant would remove all occupants, not just the head tenant, and

• s 91R would not operate because subtenants would no longer be in possession once the warrant was executed.

Accordingly, subletting did not invalidate the notice or defeat the claim for possession.

3. Reasonable and Proportionate (s 330A)

VCAT carefully balanced the interests of both parties.

In favour of the rental providers:

• They were elderly (75 years old) and needed to sell the property to fund retirement.

• Evidence showed the property would likely sell for significantly less if tenanted (estimated $50,000–$100,000 reduction).

• Vacant possession would improve marketing, buyer interest, and sale price.

In favour of the renter:

• Ms Ray had lived in the property for 15 years and had a strong emotional connection.

• She raised health concerns and reliance on her local community.

However, the Tribunal found:

• limited evidence of inability to secure alternative housing,

• no active attempts to find other accommodation, and

• the possibility that even a sale with her in place could still result in eviction by a future owner.

The Tribunal also found no reasonable alternative to a possession order, as selling with tenants in place would likely disadvantage the owners.

Decision

VCAT held that:

• the NTV was valid,

• the rental providers had proven a genuine intention to sell, and

• it was reasonable and proportionate to make a possession order.

Ms Ray was ordered to vacate by 13 November 2025, with a warrant of possession available thereafter.

Key Takeaways

• “Immediate” sale under s 91ZZB is interpreted practically, allowing for short delays and minor sale preparation works.

• Cosmetic updates (painting, carpet) are not considered renovations that invalidate a sale-based notice.

• Subtenants do not prevent vacant possession where a warrant of possession is executed.

• Financial disadvantage from selling with tenants in place is a significant factor in the proportionality assessment.

• Long-term occupancy and personal hardship must be supported by clear evidence to outweigh a valid sale intention.