New Tenancy Laws for Queensland

The new Act contains alternating sections about the two different facets – sections about residential tenancies, then sections about boarding houses, and then back to residential tenancies, and so on. For anyone involved in managing residential tenancies as well as boarding houses, this might provide added convenience. However perhaps for the greater majority who are involved in one or the other this might make for a more cumbersome search for pertinent information, and greater risk of confusion for the novice who might unwittingly look at what appears to be the ‘right’ section but is in fact about the wrong type of housing situation. The legislation we’ve had since 1994 already included sections mixed in about caravan park management, which can at times cause confusion for the unwary – and yes, sections about caravans are still contained in this new Act as well. It seems that we now have three for the price of one.

A key feature of these new laws is that additional restrictions and obligations are imposed with regards to selling a rented property. A tenant has always been entitled to written notification if and when the property they are renting is placed on the market for sale. Additionally, under the new laws, if a property is advertised for sale or shown to a buyer during the first two months of a tenancy, then the tenant can end the tenancy. However, that section does not apply if the tenant was given written forewarning prior to entering into the tenancy in the first place.

Advertisements cannot contain photographs that show any belongings of the tenant unless the tenant has consented in writing, and open for inspections and on-site auctions cannot be conducted without written consent from the tenant. Buyers must be given information about any tenancies even if they are not purchasing subject to the tenancy. If a buyer is purchasing subject to the tenancy then the tenant must be given the name and contact details of the buyer. All of these amendments are really aiming to foster more transparent communications between sellers, buyers and tenants.

Although frenzied media reporting about ‘rental bidding’ was investigated by government and determined to be unfounded, the new legislation does address this issue. When offering or advertising a property for rent, the offer or advertisement must state a fixed price, although here signage is exempt from the definition of ‘advertising’. The rental price stated should obviously be the rental price the lessor would be willing to accept. The new Act does not say a lessor cannot consider and accept any different rental price that a prospective tenant might offer at their own instigation, but the intention of this section of legislation is obviously to prevent any deceptive advertising practices and situations where tenants are asked to ‘bid’ for rental accommodation. If this particular provision is breached, as well as potential fines, the lessor then may not take a bond from the resulting tenant. That’s quite a scary consequence!

The new Act is much clearer in its requirement to show a new tenant the terms of a tenancy before they are locked into an agreement, or before any money is taken in relation to a tenancy. The new Act is also much clearer in prohibiting things like “application fees” and “cleaning deposits” and other admittedly creative, but nonetheless unlawful, ways to take money from a tenant. Only rent, bond, key deposits and holding deposits are permitted, and specific rules about each must be complied with. The new Act also allows broader scope for an existing tenant who is renewing on a further agreement, to potentially object to any significant changes from one tenancy to the next. This doesn’t mean their objection automatically overturns the changes the lessor has requested, and it would be subject to a Tribunal ruling, but it is something lessors should be aware of.

The new Act requires a lessor to give a tenant more information and options with regards to methods of rent payment, and acknowledges that the time delay between when a tenant pays their rent by electronic means, and when a lessor/agent receives that money into their own account, essentially has to be taken into consideration when determining if the rent has been paid or not. Rent increases are restricted to every six months for the same tenant, whether or during a tenancy, or going from one agreement to another.

Written notice by a lessor to end a tenancy on its end date has increased from 14 days to 2 months, which is causing some concern amongst property managers. Concerns relate to the viability of being forced to negotiate renewal of agreements between lessors and tenants some 3 months before a tenancy ends, in order to have sufficient time to give 2 months notice to the tenant should the renewal negotiation be unsuccessful. Many lessors and tenants are not clear on their preferences until much closer to the end date than that. Although notice can still be given towards the end of the tenancy, it is just that it will need to be two months notice. This will effectively cause tenancy agreements to run a month or two past the original end date. This won’t cause a problem for some lessors, but for others it perhaps might.

A very positive outcome for lessors has been the decision to introduce provisions to gain entry to a property to check the completion of repairs, or to check a tenant has remedied a breach. Restrictions and time-frames apply, however it is good to see this common sense right of access finally included in legislation. The new Act also gives clarity to the formerly grey area of what rules apply when a sole tenant dies, and introduces a rather unexpected new section about tenants who become the subject of an intensive drug rehabilitation order under the Drug Court Act 2000. It seems that legislators always have a surprise up their sleeves.

All new and existing tenancies are automatically subject to the new laws as at 1st July, 2009. However any processes currently underway as at 1st July 2009 (eg. if a tenant has already been issued with a notice prior to 1st July 2009) then that process itself will continue under the old laws that are being replaced. For most of these new sections, fines for non compliance are set at around $2000.

Boarding house management and caravan park management are not within my field of expertise, and accordingly I have restricted my comments to only those sections that relate to residential tenancies. In any case, this is certainly not a full explanation of all of the changes included in this new legislation, and does not constitute legal advice. Opinions contained herein are only my opinions as an industry practitioner and consultant, and are not necessarily the opinions of any statutory authority or industry body. Always seek your own legal advice in the interpretation of legislation.

You can view the new legislation for yourself here:
http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2008/08AC073.pdf
Kim VanDuynhoven.