Renter Challenge Fails: VCAT Finds Owner Occupation Notice Valid
Myers v Grimson (Residential Tenancies) [2026] VCAT 45
Decision Date: 23 January 2026
Key Issue: Whether a Notice to Vacate issued under section 91ZZA of the Residential Tenancies Act 1997 (Vic) is invalid if the renter claims the statutory declaration stating the owner intends to move into the property is untrue or unsupported by additional evidence.
Full Case: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2026/45.html
Background
The renter, John Myers, challenged a Notice to Vacate (NTV) issued by the rental providers, Adam and Sarah Grimson, under section 91ZZA of the RTA.
The NTV stated that the property would be occupied by the RRP, specifically Sarah Grimson, who intended to move into the premises as her primary residence.
The notice:
Was dated 21 March 2025
Gave the required 60 days’ notice
Was accompanied by two statutory declarations from the rental providers confirming the intention to occupy the property.
The renter applied to VCAT under sections 91ZZS and 452, arguing the notice was invalid because the statutory declaration was untrue and unsupported by evidence.
Issues
VCAT considered the following issues:
Whether the Notice to Vacate complied with the legislative requirements under the Residential Tenancies Act.
Whether the statutory declarations were truthful or required supporting evidence.
Whether VCAT could declare the notice invalid under section 452.
Renter’s Arguments
The renter argued that the NTV should be invalid because:
The statutory declaration was allegedly false and fabricated.
The property was previously described as an investment property, making the claim that the owner intended to move in implausible.
The owners have made available for lease, the property, for approximately two years, suggesting they never intended to occupy it.
No supporting evidence, such as financial documents, was provided to prove the owner's intention to move in.
The notice may have been retaliatory after the renter assisted another tenant in a VCAT matter.
The renter also argued that statutory declarations alone should not be sufficient evidence without additional documentation.
Rental Providers’ Arguments
The rental providers submitted that:
The NTV complied with all statutory requirements under sections 91ZZA and 91ZZO.
The only documentary evidence required for this ground is a statutory declaration, which was properly provided.
There is no requirement to provide supporting evidence of the intention to occupy the property.
The renter’s request for documents had previously been rejected by the Tribunal as a “fishing expedition.”
The property could legitimately be both an investment property and later a residence, depending on changing circumstances.
They relied on earlier VCAT decisions confirming that supporting evidence is not required to accompany a Notice to Vacate beyond what the legislation mandates.
Decision
VCAT held that:
The Notice to Vacate complied with all procedural requirements under the Residential Tenancies Act.
The statutory declarations met the requirements set by the Director of Consumer Affairs.
There is no legal requirement to provide additional supporting documents to prove the intention to occupy the premises.
Challenges to the truth of the grounds for the notice are typically addressed during a possession application, not when determining the notice’s validity.
The Tribunal also confirmed that VCAT does not have general power to grant declaratory relief regarding the validity of such notices unless expressly authorised by legislation.
Key Legal Principles
This case confirms several important principles in Victorian residential tenancy law:
A Notice to Vacate is valid if it complies with statutory form and documentary requirements.
For notices issued under section 91ZZA (owner occupation), the required documentary evidence is a statutory declaration only.
Rental providers are not required to provide additional evidence proving their intention to occupy the premises.
Challenges to the truth of the stated ground may arise in later possession proceedings rather than at the stage of assessing notice validity.
VCAT has limited power to grant declaratory relief, as it is a statutory tribunal.
