Section 344: A Hidden Tool for Property Managers
Section 344 of the Residential Tenancies Act (RTA) is a crucial but often overlooked part of that Act that property managers should be familiar with. Situations may arise where a property is occupied by someone who is not a renter and has no right to be there. In these cases, section 344 provides a powerful legal avenue for residential rental providers (RRPs) to regain possession of their properties.
What Is Section 344 All About?
Section 344 of the RTA enables a residential rental provider to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a possession order. This is specifically for situations where the property is occupied by someone other than a renter—someone who entered or stayed in the property without any licence, consent or a valid rental agreement. It’s important to clarify that section 344 does not apply to renters who overstay their rental agreement.
Examples of occupations where section 344 could apply include:
Homes Victoria v Dador (Residential Tenancies) [2024] VCAT 36
Barbaro v K P Hicks Real Estate PL (Civil Claims) [2022] VCAT 1062
Lio & Wan v UEY (Residential Tenancies) [2022] VCAT 722
When Can You Apply for a Possession Order?
For a residential rental provider to apply for a possession order under Section 344, two key conditions must be met:
The property must have been a rented premise under a valid rental agreement within the last 12 months.
The current occupant must be someone who is not a renter. This means they have either entered the property without any formal consent or have remained in occupation after the original renter has vacated, without the knowledge or permission of the residential rental provider.
If both of these conditions are met, the RRP has a right to apply to VCAT for a possession order to reclaim their property.
VCAT’s Role in Issuing a Possession Order
Once an application is made under Section 344, VCAT assesses the situation to determine whether a possession order should be granted. Under Section 345, the Tribunal must ensure that:
The residential rental provider is entitled to possession of the property.
There are reasonable grounds to believe that the premises are being occupied without proper consent.
If both of these conditions are met, VCAT is required to issue a possession order and a warrant of possession may be issued as per section 346.
Practical Tips for Property Managers
While section 344 might not come into play as frequently as other provisions of the RTA, it’s a crucial tool for property managers to have in their arsenal. Here are some practical tips to effectively apply this section:
Identify Unauthorised Occupation Early: Recognise situations where someone occupying the property has no rental agreement and no consent from the RRP. The earlier you identify this, the quicker you can take steps to apply for a possession order.
Serve Notices Correctly: If you are making an application under section 344, please ensure that the application is served correctly on the occupier as per section 506 of the RTA.
Understanding section 344 and how to use it is key for property managers who may find themselves dealing with unauthorised occupants. Being equipped with this knowledge can help swiftly resolve such situations, ensuring that properties are returned to the residential rental providers and minimising any disruption or loss of rental income.
