VIC Should I Charge Occupiers with Trespass?

[jexy9]

I have a person(s) living in a house that I own without my permission. They do not, and never did, have a tenancy agreement and I wish them to leave the property as soon as possible.

The house was occupied by my son and one of the (now) occupiers was his girlfriend but they are no longer in a relationship. My son no longer lives there.

The police have explained that it is a civil matter but I was wondering what the next best step is to take.

I have advised the occupiers that they are there without my permission and that they should leave as soon as possible.

Is trespass the best option or should I pursue a different path under property law?

 

[Lart]

Even though your tenant does not have a written Tenancy Agreement, they are still covered by whichever Tenancy Laws are in force for the State in which you live. This means both the tenant and property manager/owner must abide by the rights and responsibility set out in the Act.

Each states has a Residential Tenancy Act, so your first course of action should be to read the applicable Act to ascertain your rights.

Because the girlfriend of your son was originally living in the premises with your permission I doubt that 'Trespass' is applicable in this case.

 

[Rod]

Trespass can be available if the person is a guest and has been asked to leave. A person only has tenancy rights if the tenancy can be proved, either by an agreement (oral or written), or by paying rent.

Police will often refuse to get involved and do as you found out - claim it is a civil matter. I know someone else who had this trouble.

Your course of action depends on the individual circumstances. If there is no tenancy and police will not help you, hire a security firm, get proof of home ownership, call police, arrange for security to evict person/s on x day. Advise police in advance of the day of eviction and address. On day, turn up with security, a locksmith, and proof of home ownership. Evict, change locks and you are back in possession of your property. Recommend someone stay for a few days to prevent re-entry if things are strained on the day. Hopefully police will be watching.

Security firms will cost money but generally get the result you want. They are preferred to family members who may get out of control if there is a confrontation. Security people know how to defuse a potentially violent situation.

To be fair and reasonable give prior notice to the person and hope they do not trash the place before leaving. Check your insurance is up-to-date. Might pay to have a solicitor write a letter and have it served. Letter should contain information like date of eviction, that they are trespassing, warning about paying for damages, statement that police are expected to attend etc etc. Have a copy of this letter available on the day to show to police if needed.

Else if the person is a tenant follow the standard eviction procedures: Landlord giving notice to vacate - Consumer Affairs Victoria

All this is stressful, costly and time consuming but it is important to do things properly else you can find yourself in trouble, not the person occupying your property.