Q: Is a lessor or agent able to seek compensation for advertising costs when a tenant ends their agreement early (break lease)?
A: Under section 357A of the Residential Tenancies
and Rooming Accommodation (RTRA) Act, reletting costs are considered
all-inclusive. This means the lessor may seek compensation for reasonable
reletting costs associated with the break lease; however, separate additional
charges for advertising or similar expenses cannot be claimed on top of the
reletting costs.
Further guidance is available through the REIQ article:
REIQ – Answers to Commonly Asked Break Lease Questions
Q: A Form 12 Notice to Leave has been issued by the lessor/agent and the lessor does not intent to relet the property. The tenant issues return notice ending the agreement early, is the owner able to seek compensation for the tenant "breaking their lease"?
A: Section 357A provides that reletting costs are
limited to the lower of the unused portion of the tenancy agreement or the rent
payable until a new tenancy commences. If the owner is not re-letting the
property, reletting costs cannot be properly calculated or claimed.
Further, under section 362 of the RTRA Act, the lessor/agent
has an obligation to mitigate the tenant’s loss, which cannot occur if the
property is not being advertised for reletting.
The owner may instead attempt to negotiate a mutual
termination and reasonable compensation agreement with the tenant. If an
agreement is reached, it is recommended the arrangement be documented using
Realworks EF018.
Q: Is two months’ notice required for a rent increase in
every lease renewal situation?
A: Not necessarily. Where both the lessor and tenant
agree to a rent increase at the end of a fixed-term agreement by entering into
a new tenancy agreement, there is no requirement to provide two months’ notice
of the increase. However, at least 12 months must have passed since the last
rent increase.
If a rent increase is to occur during the term of an
agreement, the agreement must clearly state the details of the increase,
including the amount and the date the increase will take effect. In addition, a
separate written notice providing at least two months’ notice of the increase
must be issued.
Importantly, the written notice cannot be provided before
the tenancy agreement commences. As a result, the earliest a rent increase can
take effect during a fixed-term agreement is two months after the agreement
start date.
Q: A tenancy agreement is due for renewal, and the lessor
would like to increase the rent, however there is a two-day gap before 12
months has passed since the previous increase. What options are available?
A: If both parties agree, the expiry date of the
current agreement may be varied to align with the 12-month anniversary of the
previous rent increase. This can be done using the Realworks EF221 Variation to
Form 18a General Tenancy Agreement.
By extending the current agreement to the appropriate date,
the new tenancy agreement can then commence after the required 12-month period
has elapsed, allowing the parties to enter into the new agreement at the agreed
increased rent.
Q: Can we issue a Form 11 Notice to remedy
breach if a tenant does not pay the increased bond amount (after rent has been
increased).
A: A rental bond may be increased where the rent is
increased; however, the tenant cannot be required to pay more than the maximum
bond amount permitted under the legislation, being the equivalent of four
weeks’ rent. In addition, a bond increase can only occur once within a 12-month
period, and the tenant must be provided with at least one month’s written
notice of the increase.
Where the updated bond amount is included in Item 12 of the
Form 18a General Tenancy Agreement and the tenant has failed to pay the
required amount, this may constitute a breach of the tenancy agreement. In
those circumstances, the lessor or agent may consider issuing a Form 11 Notice
to Remedy Breach.
Q: Can we issue a Form 12 for rent arrears if the tenant
has previously been issued two Form 11 breach notices for rent arrears?
A: There is no provision under the legislation
allowing a Form 12 Notice to Leave for rent arrears to be issued unless a Form
11 Notice to Remedy Breach has first been issued and the breach remains
unremedied by the expiry of the remedy period.
Where two previous Form 11 breach notices for the same
provision (eg: non-payment of rent) have been remedied within the same
12-month period of the same tenancy agreement, and the tenant then commits a
third breach of the same provision, the lessor/agent may apply directly to QCAT
for an urgent application under section 299 of the Residential Tenancies and
Rooming Accommodation Act 2008 (Qld) for repeated breaches.
Q: In a Domestic
and Family Violence situation, where the victim wishes to remain in the
property what as Property Managers can we do to remove the perpetrators name
from the tenancy.
A: Where a victim of DFV wishes to remain in the property
and the perpetrator has not voluntarily ended their interest in the tenancy,
the removal of the perpetrator from the agreement generally requires action by
the tenant. While property managers can provide guidance and support, there are
limits to what can be done without consent or a formal order.
The tenant may make an urgent application to QCAT under
section 245 of the RTRA Act to be recognised as the sole tenant and have the
other co-tenant removed from the agreement.
Alternatively, if all parties (lessor/agent, victim, and
perpetrator) agree, the tenancy can be varied by mutual agreement. This can be
facilitated using appropriate documentation such as the Realworks EF207
Variation to Form 18a (Transfer of Co-tenant Interest), along with a Client
Instruction Form and relevant checklist to complete the process.
Q: Does legislation require a Special Term to be
legally drafted?
A: Under the Legal Profession Act 2007 (Qld),
licensed real estate agents and registered salespeople (including property
managers) must not draft special terms. A property manager may complete a
tenancy agreement by inserting information provided by the parties to the
agreement, however they must ensure any terms are lawful and compliant with
legislation. For this reason, REIQ best practice is that all special terms are
legally drafted.
Q: Who is responsible for pest control?
A: Pest control responsibility is not always straightforward, and who is responsible can change depending on the situation. Both the owner and the tenant have obligations, so each situation needs to be looked at individually.
Previously, the Act was silent on the matter of responsibility of pest control; however, since the inclusion of MHS, the regulations do include that the owner is responsible for keeping the property free of vermin. As per s185 of the RTRA Act, the owner has an obligation to maintain the property and inclusions. In addition to this s17A of the RTRA Act outlines the owner's obligations regarding Minimum Housing Standards, which includes that the property must be free from vermin, damp and mould.
Also, the Form 6 REIQ Essential Terms and Conditions 4.14 outlines the contractual agreement for the client to undertake pest control at the owner's cost.
During the tenancy, the tenant's obligations are to keep the property clean and to not cause damage. So, in terms of pest control, it would be reasonable to expect the tenant not to do anything likely to cause or attract pests and vermin and to pay for pest control where their actions caused the property to be exposed to pests. An example of a common scenario might be where the tenant has had a pet at the property and is therefore expected to pay for flea or mite treatment upon vacating.
The owner must make sure the property is free from vermin at the start of the tenancy and continue to meet Minimum Housing Standards unless the pest issue has clearly been caused by the tenant.
When assessing responsibility for pests, start by reviewing when the last pest treatment occurred and seek advice from a qualified pest control professional to determine whether there is any evidence that the issue may have arisen from the tenant’s actions.
Routine or annual pest control is usually the owner’s responsibility, but if the issue is caused by the tenant, for example, through poor cleaning, food storage, or pets then the tenant may be responsible for the treatment.
Q: How to deal with a pet damaged during the tenancy?
A: If damage occurs during the tenancy as a result of a pet, the matter should be managed in line with the tenant’s obligations under the RTRA Act. Tenants are responsible for damage caused by themselves, their guests, or their pets, other than fair wear and tear. The agency should inspect and document the issue, obtain photos and contractor reports, and provide the tenant with a clear request to remedy the damage within a reasonable timeframe. If the tenant does not repair the damage, the lessor may seek compensation, either during the tenancy or at the end through the bond process or QCAT. Where the damage is significant, the owner may also consider breaching the tenant or lodging a landlord insurance claim, noting that insurers generally require evidence of tenant liability.
Q: What tasks can an unlicensed assistant legally perform?
You should always refer to the Office of Fair Trading (OFT) for compliance guidance, as they are the regulator responsible for interpreting and enforcing the Property Occupations Act. The Property Occupations Act 2014 (Qld) makes it an offence for a person to perform real estate functions without the appropriate licence or registration.
An unlicensed assistant may only perform administrative and support tasks that do not involve real estate practice, negotiation, or representing the agency in any capacity that requires a licence.
An unlicensed assistant can carry out administrative duties such as preparing marketing materials, booking appointments, data entry, filing, and assisting with general office operations. They may also perform reception duties, including answering phones and taking messages, provided they do not give real estate advice. They cannot perform tasks that require a licence. Any activity that could be interpreted as real estate practice must be completed by a licensed salesperson or property manager.
Because this is a compliance matter, the agency should refer the enquiry to the OFT for guidance. The OFT can clarify what tasks an unlicensed assistant may legally perform, along with any associated compliance risks.
Q: Ending a tenancy due to non-liveability?
A: A tenancy does not end automatically when a property becomes unliveable. Under the RTRA Act, a tenancy agreement for an unliveable property can be ended in the following ways:
- Written agreement between the property manager/owner and the tenant/resident.
- The tenant gives a Notice of Intention to Leave, or the property manager/owner gives a Notice to Leave, using the grounds of Non‑liveability, within 1 month of the event that made the property unliveable.
- QCAT makes an order to end the tenancy.
When a tenancy is ended due to non‑liveability, the agreement ends on the date the notice is given, unless the person issuing the notice chooses to provide a longer notice period. This means the legal end date is immediate, but the parties may still negotiate a practical vacate date that works for both sides.
If the tenant refuses to leave after a valid Form 12 is issued, the property manager/owner may apply to QCAT for a termination order. Evidence such as reports from tradespeople, assessors, or insurers will be required to support the claim of non‑liveability.
The owner should also review their landlord insurance for potential liability, and the agency should ensure its Professional Indemnity (PI) insurance provides adequate coverage for matters arising from non‑liveability.
Here is a link to non-liveability information via the RTA: https://www.rta.qld.gov.au/during-a-tenancy/events-that-impact-the-agreement/property-becomes-unliveable
Q: What happens if a tenant refuses entry for routine inspections?
A: If a tenant refuses entry for a routine inspection, the key thing to remember is that a Form 9 Entry Notice is not a request. It is a formal notice advising the tenant that you will be entering the property on the stated date and time, provided the grounds for entry are lawful and the correct notice period has been given. Entry can occur using the agency’s spare keys if the tenant does not make themselves available.
If the tenant still refuses access, the lessor or agent can take further steps. The first option is to try to arrange another mutually suitable time, as this can often resolve the issue without escalation. If that doesn’t work, the next step is Dispute Resolution through the RTA using a Form 16. If the matter remains unresolved, the lessor or agent can apply to QCAT for an urgent hearing and seek an order under Section 201 – Rules of Entry, which allows the Tribunal to formally address the tenant’s refusal and set clear directions about lawful entry.