1. Mr and Mrs Christodoulou are the owners and occupiers of a residence at 9 Northumberland Road Pascoe Vale (the landlord).
2. Ms Smith, a student, has been a tenant since 19 November 2014 and occupies a self- contained "bedsit" underneath the residence (the premises).
3. On 20 March 2015 a Notice to Vacate (the Notice) pursuant to section 258(1) of the Residential Tenancies Act 1997 (the Act) was placed in the letterbox Ms Smith shares with the landlord.
4. The Notice stated -

"The premises are to be occupied by me, my partner, son, daughter, parent, partners parent, or a person normally with + (sic) is dependent on me immediately after the termination date.

1. The Notice required Ms Smith to vacate the premises on 20 May 2015.
2. Attached to the Notice was a letter from Mrs Christodoulou to Ms Smith dated 20 March 2015 stating -

This week we have sought legal advice regarding the tenancy of the self-contained bed sitting room that you are renting from us at the present time.

Due to a close family member requiring assistance including accommodation, we are giving you 60 days notice to vacate the premises.

The 60 days will start from the 21st March 2015 until the 19th May, but you can vacate on the 20th May 2015.

Enclosed is a 'Notice to vacate to tenant/s of rented premises', along with a short letter of explanation from my grandson, who having met with a nasty accident will be unable to work for some time.

1. Also attached to the Notice was a document dated 20 March 2015 which stated -

I D'ANDRE RICKS WILL BE MOVING INTO MY GRANDPARENTS SELF CONTAINED ROOM DOWNSTAIRS AT 9 NORTHUMBERLAND RD, PASCOE VALE. I HAVE BROKEN MY LEG AND AM NOW OUT OF WORK FOR AT LEAST THE NEXT 6 MONTHS.

I AM GRATEFUL FOR MY GRANDPARENTS ACCOMODATION AND ASSISTANCE.

1. On 27 April 2015 Mrs Christodoulou sent the following email to Jennifer Hill of Justice Connect who act for the tenant -

I am in receipt of your letter of the 21st April along with the VCAT claim. I acknowledge that I made a miscalculation with the dates required to vacate the premises.

Therefore to correct the miscalculation another 10 days will be added on, this will give the tenant a few extra days to find alternative accommodation.

1. At the hearing Mrs Christodoulou produced a further letter from Mr Ricks dated 3 May 2015 which stated -

I D'Andre Ricks, along with my partner and 20 month old daughter, are hoping to move into accommodation at my Grandparents house, Mr & Mrs N & H Christodoulou, 9 Northumberland Road, Pascoe Vale 3044.

Due to an accident I had a couple of months ago, I will be unable to walk until sometime approximately in July and able to work at a later date when my leg is healed and has gained strength.

Being unable to work I am experiencing financial difficulties including keeping up rental payments on the house we are living in. However I cannot make any arrangements to vacate this property until I know for sure that the accommodation in my grandparents' home is available.

1. Mrs Christodoulou also produced a Centrelink Medical Certificate for Ricks Dandre Miles dated 24 March 2015 signed by Dr Steine of the Alfred Hospital which stated -

In my opinion the patient is/has been unfit for work/study from 24 03 05 15 to 05 05 15.

1. The tenant submitted that both the Notice itself and service of the Notice were invalid for the following reasons -

1. In simply being placed in the letterbox, the Notice was not served in accordance with Section 506 of the Act. 2. Contrary to Section 258(2) of the Act, the Notice specifies a termination date less than 60 days from the date on which the Notice was given.

1. In the alternative, the termination date cannot be extended either by the consent of the parties or order of the Tribunal; see Smith v Director of Housing [2005] VSC 46 where at paragraph 22 His Honour says -

.... Nothing in those sections would have empowered (the Tribunal) to alter or amend in any way the notice to vacate which was given in this case...

1. The Notice itself does not state which member of the landlord's family is to occupy the premises.
2. Mr Ricks, as the landlords' grandson, is not a person referred to in section 258(1)(b)(i) of the Act; and
3. Alternatively, Mr Ricks is not a person who normally lives with the landlord or is substantially dependant on the landlords as required by Section 258(1)(b)(ii) of the Act.

1. In answer to the tenant's submissions the landlord replied as follows -

1. Prior to the landlord serving the Notice to Vacate, the tenant served a Notice of Breach of Duty by placing it in the letterbox shared by the parties. The landlord assumed that this was the correct procedure and served the Notice to Vacate in the same way on 20 March 2015. She then emailed the tenant on the same day to alert her to the Notice to Vacate; 2. The landlord emailed the tenant' solicitors and offered another 10 days to rectify the miscalculation of the termination date;

1. With the Notice the landlord provided a letter stating that her grandson would be moving into the premises, together with a letter from Mr Ricks explaining he had suffered a serious accident, which would prevent him from working for 6 months;

1. In support of that fact, the landlord produced a Centrelink Medical Certificate stating that Mr Ricks is unfit for work until 5 May 2015; 2. Although Mr Ricks is the landlord's grandson and does not usually live with them, he is in need of assistance.

1. a Having not fallen within section 258(1)(b)(i) of the Act, Mr Ricks does not fall within section 258(1)(b)(ii) either, as he is currently living in rented accommodation in Altona North and therefore does not normally live with the landlord;

b The Centrelink Medical Certificate does not state Mr Ricks was unfit for work beyond 5 May 2015;

c Mr Ricks is not substantially dependent on the landlord because -

• He was employed until January 2015 when he suffered a broken leg;
• He has alternative accommodation;
• The Centrelink Medical Certificate says he has a capacity to do any other work for 8 hours or more per week;
• The landlord's only income would appear to be the aged pension and rent from the tenant;
• Therefore it could not be said that he is wholly or substantially dependent on the landlord.

1. Section 506(3) of the Act provides that -

(a) by delivering it personally to the tenant ....; or

• (b) by sending the notice by registered post addressed to the tenant ...at the rented premises ....;

1. Section 258 (Premises to be occupied by the landlord or the landlord's family) of the Act provides -
   • (1) A landlord may give a tenant a notice to vacate rented premises if the premises are immediately after termination to be occupied -
     • (a) by the landlord;
     • (b) in the case of a landlord who is an individual -
       • (i) by the landlord's partner, son, daughter, parent or partner's parent,
         • (ii) by another person who normally lives with the landlord and is wholly or substantially dependent on the landlord.
   • (2) The notice must specify a termination date that is not less than 60 days after the date on which the notice is given.

1. The requirement to give a Notice to Vacate to a tenant is to ensure that the notice comes to the attention of the tenant. If the notice is given personally to the tenant then the landlord knows personally that it has come to the tenant's attention. If given by registered post, a Notice to Vacate is deemed to have been received by the tenant two business days after the day on which it was posted.
2. In this proceeding, Mrs Christodoulou's evidence is that on 20 March 2015, she placed the Notice to Vacate in the letterbox she and her husband share with the tenant. This method was neither delivering the Notice to the tenant personally or by sending the Notice by registered post. By placing the Notice in the letterbox, the landlord cannot say when the Notice came to the tenant's attention. Therefore the landlord has not served the Notice to Vacate in accordance with section 506(3) of the Act.
3. Mrs Christodoulou says she emailed the tenant to tell her that the Notice to Vacate was in the letterbox. There was no evidence before the Tribunal if and when this email was received by the tenant, or if received, when it was read by the tenant. Therefore, the landlord has not proved proper service of the Notice to Vacate on the tenant.
4. This proceeding was initiated by the tenant. As such, it is clear that the Notice to Vacate came to the tenant's attention at some point in time. Be that as it may, the landlord cannot prove when the Notice came to the tenant's attention, and as such, cannot prove that the tenant was given not less than 60 days notice as required by section 258(2) of the Act.
5. Even if I am wrong in the view I have taken regarding service, the Notice to Vacate is still invalid. The landlord's grandson is not a person who falls within section 258(1)(b)(i) of the Act, and on the evidence, is not a person who lives with the landlord and is wholly or substantially dependent on the landlord.

1. The Notice to Vacate is invalid for the following reasons -

1. Service of the Notice was not in accordance with Section 506 of the Act; 2. The termination date stated in the Notice, 20 May 2015, is less than 60 days after the date on which the Notice was given, 22 March 2015, contrary to Section 258(2) of the Act;

1. The termination date as stated in the Notice cannot be extended with the consent of the parties or by order of the Tribunal;

1. The Notice does not state who is to occupy the premises pursuant to section 258(1)(b); 2. The landlord's grandson is not a person within the landlord's family covered by section 258(1)(b); and 3. The landlord's grandson does not normally live with the landlord and is not wholly or substantially dependent on the landlord as required by section 258(2).