When Do ‘Danger’ and ‘Serious Damage’ Notices to Vacate Fail?
Valentine v Thomas (Residential Tenancies) [2025] VCAT 866
Decision date: 24 September 2025
Key issue: Whether notices to vacate for danger (s 91ZJ) and serious damage (s 91ZI) were valid under the Residential Tenancies Act 1997 (Vic), and whether the alleged conduct was sufficiently proven and current at the time the notices were issued.
Full Case: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2025/866.html
The Background
Rental provider issued two Notices to Vacate (NTVs) on the same day to the renter, alleging dangerous behaviour and serious damage.
First NTV (s 91ZJ – Danger): Claimed that the renter or her visitors endangered neighbours through assaults, fires, intimidation and drug activity.
Second NTV (s 91ZI – Serious Damage): Alleged repeated damage to the property’s gates, door, and interior fixtures.
Although the notices listed extensive supporting material, police reports, invoices, photos, and statutory declarations, only two statutory declarations and a few photos were actually attached.
What Did the Tribunal Decide?
Danger Notice Invalid
The Tribunal found that the first notice failed to comply with s 91ZZO(d), as it did not provide enough factual detail to explain the alleged conduct. It contained sweeping statements without dates, names, or specific incidents. Citing Smith v Director of Housing and Jafarpourasr v Tancevski, VCAT emphasised that renters must be told exactly what happened and when so they can contest the allegations. Generalised “anti-social behaviour” wasn’t enough and much of it, at best, amounted to nuisance, not danger.
Serious Damage Notice Valid but Grounds Not Proven
The second notice technically met the formal requirements, correct form, signature, and attachments, but failed substantively. The evidence showed a single incident in September 2024 where a visitor allegedly damaged a gate, costing around $3,000 to repair. However, VCAT held there was no temporal connection between the damage and the October 2024 notice. By then, the Owners Corporation had replaced the gate mechanism and no further damage had occurred. Following Director of Housing v Pavletic and Director of Housing v Cochrane, Member Daly held that s 91ZI requires current or continuing conduct at the time of the notice.
Both applications for possession were dismissed.
Why This Case Matters
General allegations don’t cut it. Notices under ss 91ZJ and 91ZI must detail who did what, when, and how the renter was involved or aware.
Attach evidence that matches your claims. Listing attachments that aren’t actually provided undermines the notice.
Serious damage must be recent or ongoing. If the damage was repaired or the behaviour has ceased, a s 91ZI notice won’t hold.
Differentiate nuisance from danger. Anti-social conduct doesn’t automatically endanger safety.
