Webinar – Facts and myths about how to end a tenancy correctly

Good morning, everybody, and welcome to today's webinar. My name is Cassie Chao, and with me today is Mark Fidler. Good morning, Mark. >> Morning, Cass, and welcome, everyone. Thanks for joining us. >> Before we continue, the RTA respectfully acknowledges the the Aboriginal and Torres Strait Islanders peoples as the traditional owners and custodians of this country, and we pay our respects to all traditional owners and to their elders past, present, and future. So, as I mentioned, my name is Cassie, and my co-host today is Mark. Both of us are senior community education officers and started our RTA careers in the customer experience business unit. We've both worked in our contact center, and I have also spent time in our in-house learning and development team. Mark's other experience at the RTA has been in our frontline support team and bond transactions processing team, as well as in the education team for over 5 years, and he has worked at the RTA for over 20 years. So, in today's webinar, we'll be providing you with key information and facts about the process for ending a tenancy, focusing especially on the reasons, also referred to as grounds, for ending a tenancy that are specified under the Residential Tenancies and Rooming Accommodation Act of 2008. We'll also discuss reasons for which an application to the Queensland Civil and Administrative Tribunal, also known as QCAT, may be made for an order terminating a tenancy. At various points throughout the webinar, we will share some of the common myths relating to today's topic and help to clarify what is fact versus what is not, before we finish by answering some of your questions. Whether you're experienced or new to the rental sector, today's topic may be a refresher on this topic, or it may be an opportunity to ex- to to ensure that you know uh the myths that are not correct. So, for those of you who are not familiar with the RTA uh what we or what we do, um here's a quick rundown. The RTA is the Queensland statutory body that administers Queensland's tenancy laws. We don't write the legislation, but we are responsible for implementing and regulating it. And we do provide insights and feedback to the Department of Housing and Public Works, which is responsible for writing in the legislation. So, we're here to help everybody involved in a tenancy, which includes property owners and managers, providers, tenants, residents, the wider renting community, and rental sector stakeholders. Our services do include a contact center, free dispute resolution service, free education and information resources, and the management of rental bonds. We do also conduct compliance and enforcement activities, and work with sector stakeholders such as the REIQ, Tenants Queensland, Property Owners Association of Queensland, and Q Shelter, amongst many others. So, here is a slide that outlines the process for ending a tenancy. Firstly, if either a tenant or a manager or owner would like to end a tenancy, they must provide notice to the other party in writing. When the tenant moves out, they should make sure they clean the property and fix any damage they or their guests may have caused, with consideration to the condition of the property at the start of the tenancy. Rent must be paid up until the vacate date or the end date of the notice ending the tenancy. On or beforehand over day, the tenant must complete an exit condition report. And we do encourage tenants and property managers or owners to complete a final inspection together. This way any problems or disagreements and options for fixing them can be talked about straight away. Finally, after the tenancy has ended, the bond refund process can be started. And today we'll be focusing on the first step of this whole process, the written notice. Though we will explore myths around any part of the overall vacate process. A tenancy must be ended by providing a written notice to the other party. This notice must include valid grounds for ending the tenancy as specified under the legislation. Where a tenancy is ended for a reason not in the legislation, such as in a break lease situation, compensation may need to be paid. On the RTA's website, there are forms which can be used to end a tenancy and we encourage the use of these to ensure the important details are provided to the other party. These are the RTA form 12 for managers or owners, R 12 for rooming accommodation providers, form 13 for tenants in residential tenancies or movable dwellings, and R 13 for residents in rooming accommodation. Please note that there are minimum notice periods that apply when ending a tenancy and details of these can be found on the RTA website. Failure to provide the correct amount of notice period might make a notice invalid. As we mentioned earlier, to end a tenancy lawfully, a valid grounds under the act must be provided. And we're now going to share what those grounds are, though I will note that we'll only talk through the more common grounds in more detail. However, you can read one to two key points about each of the coming grounds on the upcoming slides. Um so we're just going to start with the grounds a manager or owner may use to end a tenancy agreement. So on this slide, firstly, we have end of fixed-term agreement. Like the name suggests, this only applies to fixed-term agreements, and it cannot be used to end an agreement early. You can use this grounds up till the day before the end date of a tenancy agreement. So, then we have significant repairs or renovations. This applies to repairs or renovations that cannot be safely carried out whilst the tenant occupies the property. If there's a dispute about the use of this grounds, the manager or owner may wish to provide the tenant with some supporting documentation. And you'll also see on this slide we have planned demolition or redevelopment, and that the property is required for a state government program. On this next slide, we have another four grounds. And the pink tiles here indicate that the property cannot be re-let for 6 months if those grounds are used to end an agreement. They also cannot be used to end a fixed-term agreement early. So, you'll see these grounds are a sale contract, which applies if the property needs to be vacant to prepare for sale, or if a contract for sale with vacant possession has been entered into. So, we have change of use for when the property is going to be used for another purpose other than a residential tenancy. An example of of this might be short-term holiday letting or commercial or retail purposes. Um and we have owner occupation, which applies if the owner or their relative wishes to move into the property. Still continuing with reasons that a manager or owner may end a tenancy. So, here we have an unremedied breach. Um please note that the notice periods are different in a rent arrears situation as opposed to a general breach. And also note that the breach process is outlined under legislation must be followed, and the notice to remedy breach must have expired without remedy. So, we also have ending of student entitlement, ending of housing assistance, and non-compliance with a tribunal order of movable dwelling relocation, um and then death of a sole tenant. So, please note just with the death of a sole tenant, um that there are various ways that a tenancy may end following the death of a tenant. We do encourage you to refer to the relevant pages on our website if you find yourself in this situation. One of the ways that it may be ended, however, is by the manager or owner giving 14 days notice to end that tenancy. And our final five grounds that are applicable to managers or owners are non-livability, employment termination, ending of accommodation assistance, a serious breach in public or community housing, and a caravan park closure. So, with non-livability, this applies when a property is destroyed or made fully or partially unfit to live in and can no longer be used as a residence, um lawfully, other than by a breach of the agreement. So, an example, um of this might be, say, uh by natural disaster, um noting that the notice ending the tenancy must be given within 1 month. Um and I'll talk a little bit more about serious breaches as well. Um so, for a manager or owner to use this as a grounds, they must be a public or community housing provider and the legislation outlines what is considered as a serious breach. Um if the manager or owner is not in public or community housing, then they must come through RTA dispute resolution first and then make an application to QCAT for termination of the tenancy. Now, I'm now going to I'm now going to invite Mark to assist me with busting some myths that we commonly hear relating to the end of tenancy and vacate process. So, welcome Mark. So, I'm going to read uh the myth and then uh Mark is going to talk about it. So, our first myth is that the tenant must provide a notice of intention to leave on the RTA form 13. An email with all of the required information isn't acceptable. Um so, Mark, why is this a myth? That's okay. Just um I'll give you a minute, Mark. So, the act states that a notice ending a tenancy must be in the approved form um as opposed to on the approved form. Um and I place the emphasis on the language here intentionally um because in the approved form means a specific particular form doesn't need to be used. But, the details uh required to be in the notice must be included. So, you could send an email that has the same information that a form 13 has um and that would be fine. Uh but, we do recommend use of the form 13 because it's going to make sure that you don't forget in portion. I think I've got Mark back. So, our next myth is >> just >> That's okay. >> system just completely shut down on me. >> Oh, that's no good. Glad you've got we've got you back. Um our next myth is the minimum notice period is 60 days and we hear this all the time in our contact center. >> Yeah, it's probably a little bit common. Most people think 2 months, 60 days, but the act actually specifically references that the notice period is 2 calendar months or 2 months. So, when we look at what we call our acts interpretation act, uh that refers to 2 calendar months. So, that obviously uh is different to 60 days. So, for example, if a notice to leave is provided on the 1st of May, uh then the tenant has until midnight on the 2nd of July to vacate. Um that period might end up being shorter than 60 days if you include um a February in there, but you need to be very careful um that you are providing the correct notice uh cuz as you mentioned before uh if you do get to QCAT um and the notice period hasn't been correct, uh they may request that you start that process again. >> Yes. So, our next myth is the tenant has a right to return to the property after handover to remedy issues with the condition of the property on vacate. >> Yeah, this um is a really uh good question and it does come up. Now, there's nothing in the legislation that states that a tenant must be provided with an opportunity to return to the property to remedy any issues with cleaning or repairs after the handover date has passed. Now, section 188, part four of our act, says that at the end of the tenancy, the tenant must leave the property and inclusions as far as possible in the same condition they were at the start of the tenancy, fair wear and tear accepted. Now, what we need to be aware of here is that we have seen some instances where QCAT um the QCAT adjudicator has asked whether or not the tenant was given an opportunity to return, but ultimately, once the tenant hands back vacant possession, that has been their opportunity. So, they hand back vacant possession uh and the property in the in the right um condition. So, there is nothing that requires them under our legislation uh to uh to go back. Um so, yeah, something to be aware of there. Yep. >> Yes, definitely. So, we've got every type of un-remedied breach. So, no matter what it is, gives a manager or owner or the tenant or the resident the right to end their tenancy. >> Yeah, look, when using an un-remedied breach as the reason to end the tenancy, it's really important to consider the seriousness of the issue. So, if the tenant uh issued a manager um property manager or the owner, a breach notice because, let's use a really simple example, because the toilet roll holder had fallen off the wall through no fault of their own. Now, if that wasn't repaired in 7 days, by rights, um, that breach hasn't been rectified and so potentially the tenant has right to end uh, or issue the notice of intention to leave. Is that serious enough to warrant ending the tenancy? Is it stopping, you know, the property from being used? Probably not. So, um, when you're looking at that breach process, um, yes, the process does say if the breach is un-remedied, you can issue uh, the notice of intention to leave or the notice to leave, um, if it's coming from manager, but uh, really need to be conscious of the seriousness of the breach in that situation. >> Yeah, that's right. No, we'd consider that a key card also. >> Correct. >> So, the last one for this slide is at the end of the tenancy, only the manager or owner can start the bond refund process. >> Yeah, another myth. Uh, this is not true. So, either party uh, has the ability to start that bond refund process. Now, what we encourage, uh, and you will hear us talk a lot about communication today, but we encourage the parties to discuss the bond refund at the end of the tenancy before a refund request is made. Um, you know, the the the the quickest way to get a bond back for both parties, especially if there's money going to each, is an agreed refund uh, into us. Um, so, we really encourage both parties to have those conversations uh, and uh, work through that process. But, ultimately in regards to that particular uh, statement, either party can start that process. >> That's right. All right, thanks for helping with those, Mark. And Mark is going to take you to the next few slides also. >> Oh, I hope so. Um, where uh, bear with me. Sorry. Um, apologies for that. All right, so, let's have a look now at and look at um a tenant's grounds for ending a tenancy. So, um something to be aware of when we look at these and and as you're reading them on the screen, if the tenant uses these sections correctly and appropriately, and I'll touch on that a little bit further, none of these um are break lease situation, and we will talk a little bit about break lease as in a moment. Um So, the key here is uh the without grounds. So, a tenant can end a tenancy uh their fixed-term agreement uh where there is no ground. So, similarly to um a property manager or owner issuing a notice to leave for end of fixed term, um when a tenant if a tenant is wanting to end that tenancy, um they're uh issuing that notice to you without grounds, and they need to provide 14 days, and it needs to be towards the end of that tenancy or up to the end of that tenancy. So, the um important bit there is that uh they issue that notice uh and it is uh does take it up to the end of the tenancy. Uh the condition of the property, so the tenant may provide a notice of intention to leave within the first 7 days of their occupation if the property is not fit to live in, uh the property or inclusions are in not in good repair, uh that there's a breach of health or safety laws, or that the property doesn't meet minimum housing standards. Now, again here, uh your entry condition report, um certainly from the uh property owner manager perspective, important to have a really thorough entry condition report, and we would be encouraging the tenant to have a conversation with you about any issues uh that might be at the property, but they can uh if it's not uh up to standard, they can issue and end that tenancy within 7 days. Now, death of a sole tenant and death of a co-tenant. Now, as Cass mentioned, um our website resources uh in these circumstances from um uh the the manager owner perspective a little bit earlier. Uh the tenant uh can issue uh or end the tenancy um if they um if they do pass away. So, death of a sole tenant, obviously if a representative of that person issues a notice to you, they can give you uh notice to end. Uh and if a co-tenant passes away and the other party uh the tenant in that property uh doesn't feel comfortable or is unable to uh remain in the property, they can issue a notice and end the tenancy. And again, the key here is that these aren't treated as break leases. So, moving on to a couple of other options that a tenant has, uh the unremedied breach. We talked about the breach process a moment ago in the myths. Uh so, the tenant can issue a notice to remedy breach to the property owner or manager. Uh and if it's not remedied, then they can take steps to end the tenancy. There are obviously if it's around repairs, they can go down the dispute and repair order path as opposed to ending that tenancy. Uh and again, we would encourage uh communication there. Uh if the property owner is intending to sell, uh so, if a tenant signs an agreement and uh they weren't advised before entering into that agreement that the property was going to go on the market, then within the first 2 months of that agreement, the tenant can uh issue a notice um to end the tenancy. Uh failure to comply with a repair order. Uh so, I mentioned the breach process there around repairs. Uh if it does end up at QCAT and a repair order is issued uh and a repair order is not complied with, the tenant can end the tenancy. And if there is um compulsory acquisition, so uh, generally that will be where uh, the council um, or state government will take over the property, uh, then the tenant uh, can end that tenancy um, under those grounds as well. And then finally, the last couple of options here, non-livability. So, generally in your uh, natural disaster type situations, um, the tenant can issue a notice to end. If uh, you are looking after rooming accommodation uh, and student provided or um, student sorry, uh, accommodation, if um, a tenant is no longer a student, uh, then they can uh, issue a notice to end that tenancy. Uh, non-compliance with tribunal orders. Uh, so generally these are more in uh, a movable dwelling situation. Um, and then finally, that last one there around uh, domestic and family violence. Uh, and there is uh, a lot of information and resources on our website around um, the circumstances where a tenant may be experiencing um, DV. One thing I will say here, uh, just in regards to if a tenant does issue uh, the form 28A, which is the leaving notice for DV, uh, if you receive that notice, you need to be um, just be careful how you approach that. Um, property manager or owner can't uh, reject effectively that notice uh, unless they don't believe that the legislative process has been followed correctly. And then it would be a matter of disputing that notice through QCAT. So, um, we encourage you to have a good look on our um, website in regards to those processes. So, just moving on, there was and we saw a couple of questions in the chat earlier, the mutual agreement um, process. Uh so under section 277, a tenant and a tenant and a property manager or owner can mutually agree in writing to end the tenancy. Now, we encourage that agreement to be in writing and state the how that agreement is going to be ended. Generally a date, what the circumstances are, whether there'll be any payment between the parties in regards to that. So, we encourage you to document that and both parties to sign. Uh and then the tenancy obviously can end on the day agreed. Just touching on the QCAT process. So, there are a number of options for property managers or owners to apply to QCAT. Um the list of those is on the screen. The uh These are generally urgent applications to the tribunal, so you don't need to come through us for dispute resolution. Uh so, you would make your application directly to QCAT and they will make an order and um determine if that tenancy is going to end and the date that it's going to end and the circumstances that it will end in. Tenants can also make applications to the tribunal. Uh so, again, the list of reasons for them to be able to apply is listed on the screen. Uh misrepresentation. Um I'll just make a note about that one. That's uh if, for example, at the start of a tenancy, it's documented in an agreement that let's use an extreme example, but an air conditioner might be going to be installed or some security doors are going to be put on the property. If that doesn't occur in the time frame that um is indicated, then the tenant may be able to make an application to the tribunal under that misrepresentation section Uh and have the tenancy or ask to have the tenancy ended. So, the others there are generally pretty straightforward in regards to those applications and the reasons that they will make them. So, Cass >> What? Yes. We're going to go through some more myths. So, next myth that we have here is a tenant must use the RTA form 13 and provide 14 days notice when breaking lease. >> Yeah, this is a very topical issue, I suppose, for want of a better expression. If a tenant ends a tenancy agreement early or breaks a lease, they're actually ending a tenancy in a way outside of the act. So, in this circumstance, break leases aren't specifically discussed in the act. So, this means that there's not a specific notice period or a specific notice that needs to be used in these situations. Now, our recommendation to tenants in these circumstances is still to use the form and provide as much notice as possible. Lessors, property managers have a responsibility to mitigate loss. The more notice that the tenant can provide in a break lease situation, the better opportunity they've got of getting a tenant in there quickly. So, we do encourage the use of the form 13 and we do encourage them to provide as much notice as possible. So, Section 357A of our act specifically makes reference to the tenant only being liable for re-letting costs if they end their agreement in a way other than permitted under the act. Now, I spoke a little bit earlier about all of the ways the tenant has to end an agreement, but ending it early is actually not one under the act. So, that's where those break lease fees would come into play. >> Thank you. So, if a property is being sold, then the manager or owner can end a tenancy agreement during a fixed-term tenancy. >> Yeah, again, no. So, there is a ground to end an agreement for sale of property, but it doesn't apply and it can't be used to end an agreement early. You can certainly negotiate with the tenant if you would like them to end the tenancy. There may be some compensation paid or payable if you can negotiate, but ultimately even if a property is up for sale, the tenant is entitled to remain in the property for the term of that agreement. >> And the next myth, it's the manager or owner's responsibility to start the exit condition report process. >> Not the case. Not the case at all. So, the tenant is responsible to complete the exit condition report on or before the handover day and provide it to the manager or owner who must then sign it and return it within three business days. We would encourage certainly property managers and owners as a part of the exit process to advise the tenant or at least provide a copy of the exit condition report to the tenant and encourage them to do it because that if the entry condition report was done properly, gives the everyone an opportunity to assess how the property was at the start and at the end, but there isn't a responsibility for the owner to start that process. It is definitely the tenant's. >> So, next myth, a manager or owner can end an agreement at any stage as long as they provide two months notice. >> Yeah, again, not the case at all. So, we went through earlier Um the grounds to end a tenancy, um but there is not the capacity uh to end in a a fixed-term agreement early uh using any of those particular grounds. Uh so, that's not necessarily the point or the case at all. So, we encourage you again to uh when it comes to ending those tenancies, look at the information on our website uh and use the resources available to you to make sure that uh everything is done properly and the correct notice periods are applied. >> Okay, final myth. If the tenant does not leave, I must go through RTA's dispute resolution before going to QCAT. >> Yeah, uh again, not the case. Uh so, the if the tenant is still in the property the day of the handover uh after handover, then you have 14 days to make an application to the tribunal to have the tenancy terminated. So, it's an urgent application under section 415, but it does not need to come through uh the RTA's dispute process first. >> So, this is just a quick summary of the key topics we've discussed today in relation to ending a tenancy. So, we started with an overview of the ending a tenancy process. Uh we discussed the key requirements for a written notice um and went through all of the different grounds for ending a tenancy, um whether you're a manager, owner, or tenant resident. Uh Mark talked through QCAT termination orders a bit, and we've discussed some common myths and misconceptions. Um if you'd like further information in relation to today's webinar topic or other matters relating to renting or managing a tenancy, uh the RTA website does have information on a wide variety of topics and in a variety of different formats. To stay up-to-date with the latest tenancy information, please make sure you follow us. So, we've got LinkedIn, YouTube, Instagram, um subscribe to RTA news or our Talking Tenancies podcast. Um, we also have our contact center details available there if you need to discuss a specific uh, so specific situation. So, thank you for joining us today. Um, and thank you to Mark for co-hosting with me. >> Thanks, Cass, and thanks everyone for joining us today. >> Thanks, everybody. This webinar will now close.