Part 1.1 STARTING a Tenancy

1.1.1 Application to rent

When applying for a rental property an applicant may be asked to complete an application form and provide evidence including income, proof of identity, references, and rental history. This information allows the lessor/agent to assess whether the applicant is a suitable tenant. The lessor/agent may ask for personal information including:

• Personal identification;
• Financial information;
• Tenancy history;
• Previous bond refunds; and
• Personal references.

When applying for a tenancy, applicants are not legally obliged to provide all of the above information but lessors or agents may not consider an application if the applicant refuses to provide requested information.

It is the lessor/agent who decides which applicant will be offered the tenancy. The lessor/agent is not required to provide a reason for refusing a tenancy application although it is useful for a prospective tenant to seek feedback if their application is unsuccessful.

1.1.2 Signing the tenancy agreement

When renting a residential property the lessor/agent must provide the approved applicant with a written tenancy agreement to sign. A residential general tenancy agreement must include:

• the name and address of the tenant and property manager/owner;
• the start and end date of the agreement (or state that it is periodic);
• how the tenant should pay rent and how much is to be paid;
• standard terms (a summary of the Act that sets out the rights and responsibilities of the parties); and
• any special terms  (these special terms must not contradict the Act and should be agreed in advance, e.g. a dog is allowed but must be kept outside, permission for tenant to install fixtures, agreements about pool or garden maintenance, or improvements the lessor has agreed to provide – such as new carpet, air con etc).

The lessor/agent is responsible for preparing the tenancy agreement and providing a copy to the approved applicant. The tenancy agreement must be provided to the approved applicant before they can be asked to pay any monies for the tenancy (other than a key deposit or holding deposit) and before the tenancy agreement can be considered to be legally binding.

On, or before, the day the tenant occupies the property, the approved applicant must:

• sign the agreement; and
• within 5 days of receiving the agreement return the signed agreement to the lessor/agent.

It is always advisable for a tenant to keep a copy of the proposed tenancy agreement for their records. Once the tenant returns a signed copy, the lessor/agent must sign the agreement and return a signed copy to the tenant within 14 days.

1.1.3  Discrimination issues

The Anti-Discrimination Act 1991 (Qld) states, every person has the ‘right to be treated fairly’.

If an applicant for a rental property believes they have experienced unlawful discrimination on the basis of a personal attribute including gender, race, religion, age and/or parental status, it is advisable to make contact with the Queensland Human Rights Commission (QHRC) on 1300 130 670 to make a complaint or visit QHRC website for information.

1.1.4  Tenancy database listings

Many real estate agents and lessors use tenancy databases to assess the suitability of prospective tenants. The tenancy application form may require the prospective tenant to provide written consent for referees to be checked, including checking on a tenancy database such as TICA.

The purpose of the tenancy database check is to establish whether or not the applicant has been listed on a tenancy database previously, by a lessor/agent.  Some tenancy databases operate on a regional basis and others on a national basis. Regardless of the specific area the data base may cover, tenancy databases including TICA in Qld are sometimes referred to as ‘blacklists’. A tenant may be ‘blacklisted’ if an agent or lessor alleges that they defaulted on their tenancy obligations. A listing on a tenancy database may prevent a prospective tenant from being deemed a suitable tenant.

Lessors obligation to disclose search of tenancy data base

If the lessor/agent uses a tenancy database, the agent/lessor is legally obliged within 7 days after accessing the tenancy database, to provide the applicant with written notice as to:

• the name of the data base used; and
• the fact there is personal information about the applicant listed in the tenancy date base: s 458B. The reasons for being listed on a tenancy data base may include damage to the rental property resulting from the perpetrator’s acts of domestic violence.

If an applicant discovers there is a listing on a tenancy database, it may be possible to dispute the listing, by making an application to QCAT to determine the matter. For more information please see the Tenants Queensland Tenancy Databases Fact Sheet.

1.1.5  The tenancy agreement

When tenants rent a place the lessor/agent must provide a written agreement that is  clear and in accordance with the requirements of the Act. The RTA website has sample standard tenancy agreements.

There are three types of tenancies covered under the Act including:

1. General Tenancy Agreement-RTA 18a – is used when renting a house, unit, apartment, townhouse or houseboat;
2. Moveable Dwelling Agreement-RTA 18b – is used when renting a caravan, moveable dwelling or site; and
3. Rooming Accommodation Agreement-RTA R18 – when a resident rents a room from a provider and shares common areas such as bathrooms, kitchens with others residents. If the provider also lives in the premises a rooming accommodation agreement only applies if 4 or more rooms are rented out.

1.1.6 Fixed and periodic tenancy agreements

A residential tenancy agreement may be for either a periodic agreement, or a fixed-term agreement.

A periodic agreement – is a week-to-week ongoing agreement that continues until the tenancy is terminated by either party. When a fixed term agreement expires, if neither party takes steps to terminate the tenancy agreement, the agreement will automatically roll over into a periodic “week-to-week” agreement.

A fixed term agreement – has a start date and end date and can be for any agreed length of time (such as 6 months or 12 months). Tenants should only sign a fixed term agreement if they intend to stay the full term, as it can be costly if tenants need to “break a lease” and terminate their fixed term agreement early.

A residential tenancy agreement is a legally binding contract between the lessor/agent and the tenant/s.

1.1.7 If there is no written tenancy agreement

It is an offence under the Act for the lessor/agent to fail to provide a written agreement to a tenant.

However, if the tenancy agreement is only verbal, or the written agreement does not comply with the requirements of the Act, the tenancy laws will still apply to all parties.

If there is doubt about whether a tenancy agreement is covered by the Act, seek tenancy advice or apply to QCAT for a decision.

For more information, see the following Tenants Queensland fact sheets:

Renting in Queensland and Starting a Tenancy.

1.1.8 Money at the start of a tenancy agreement

A prospective tenant cannot be required to pay any money at start of a tenancy (except for a key and/or holding deposit) until they are given a copy of the proposed tenancy agreement:

Once parties enter into a tenancy agreement prospective tenants may be asked to pay rent in advance along with a rental bond. Lessors are not permitted to ask a tenant to pay more than 2 weeks rent in advance for a periodic agreement, or one month rent in advance for a fixed term agreement. In general tenancies the maximum bond is equal to 4 weeks rent, however, if the weekly rent is over $700 there is no maximum bond amount.

TQ encourages DFV service providers to develop formal connections/relationships with their local Rent Connect service and local Housing Service Centres as housing staff can assist tenants to apply for a bond loan or rental grant as described above.

Assistance with bond and rent payments:

The Department of Housing and Public Works provides bond loan and rental grants services to assist low income tenants meet the costs of starting a new tenancy.

Bond Loans:
A Bond Loan is an interest-free loan to cover the rental bond when moving into private rental accommodation. The loan is up to a maximum of 4 weeks rent, and must be repaid. Bond Loans are available to eligible people only.

Rental grants:
Rental Grants are designed to help people experiencing a housing crisis who are moving into private rental housing. A Rental Grant is a once-only grant of two weeks rent. It does not have to be repaid. The Rental Grant is not intended to be used for two weeks rent in advance as it can not be paid until the tenancy is established.

Eligibility criteria:

Eligibility guidelines apply and an application for a bond loan or rental grant must be approved prior to a tenant signing a tenancy agreement, or staring a new tenancy. Applications can be submitted at a local Housing Service Centreworkers at the local Housing Service Centres are able assist women affected by domestic violence apply for a bond loan or rental grant.

Call 13 74 68 for information about bond loans or rental grants or visit http://www.qld.gov.au/housing.

1.1.9 Standard of the rental property and Condition Reports

Entry Condition Reports

At the start of a tenancy the lessor/agent must ensure the premises are clean, in good repair and fit for the tenant to live in. Premises must also comply with all health and safety requirements, such as inclusion of working smoke alarms and electrical safety switches.

When tenants move in the lessor/agent must give the tenants a prepared Entry Condition Report to record any defects in the property and note any areas that are not clean or in good repair. Tenants must return a signed copy of the Entry condition report to the lessor/agent within 7 days of moving in. It is also a good idea to keep a copy of this document as it is may be used in evidence  to show the condition of the rental premises upon entry, if required at a latter date .

Maintenance and repairs:

If the tenant notes any repair or maintenance issues that need attention the tenant can give the lessor/agent a written request to do the repairs. If repairs are not done in a reasonable time tenants can give the lessor/agent a Notice to Remedy Breach – RTA Form 11 giving the lessor/agent 7 days to fix the problem.

For more information see the Tenants Queensland  fact sheet Repairs and Maintenance.

Exit Condition Reports

When tenants move out they must leave the rental property clean, in the same condition as the start of the tenancy, except for reasonable fair wear and tear.

At the end of the tenancy tenants must use an Exit Condition Report– RTA Form 14a to record the condition of the premises and must give a completed copy to the lessor/agent when they return the keys. Tenants can also take photos of the property and keep copies of cleaning receipts, as evidence of having fulfilled tenant obligations.

The Entry condition Report, Exit Condition Report, and other evidence, such as photos and cleaning receipts, can assist tenants to dispute unfair bond or compensation claims by the lessor/agent at the end of the tenancy.

1.1.10 Outgoings and service charges

The tenancy agreement should state whether or not tenants are responsible for service charges during the tenancy.

Tenants can only be held liable for water charges if this is stated in the agreement and the premises are individually metered for water supply. The lessor can recover the full cost of water use if the premises are fully water efficient and this is stated in the agreement. If premises are not water efficient the lessor must pay for a reasonable supply of water and this reasonable amount should be agreed at the start of the tenancy.

When moving in tenants will normally need to get services connected, such as gas, phone or electricity, and will be responsible for these costs. If the account is in the name of the lessor, or if the premises are not individually metered for these services, the agreement must state this. For shared services the agreement must state how the tenant share will be calculated and how the lessor will recover payment from the tenant.

The lessor/agent must not require a prospective tenant to agree to buy goods or services from the lessor, agent or a third party, as a condition of being accepted for the tenancy.

1.1.11 Sub-letting

When a tenant named on an agreement gives another person (a ‘sub-tenant’) the right to rent part, or all of the property, the tenant becomes the ‘head-tenant’ in relation to the sub-tenant.

A ‘head-tenant’ has the same responsibilities as a lessor and must provide the sub-tenant with a written tenancy agreement, provide receipts or keep a record of rent payments, and the bond must be lodged with the RTA.

Any agreement between a head-tenant and sub-tenant should be in writing. It is also a good idea to include any arrangements for sharing bills (e.g. gas, electricity or internet).

Tenants must obtain written consent from the lessor/agent before they can sub-let the rental property. Approval for additional occupants or sub-tenants can be noted in the special terms of the tenancy agreement.

If the tenant believes the lessor/agent has acted in an unreasonable way by refusing to agree to a sublet, the tenant may apply to the tribunal seeking an order allowing the tenant to sublet the premises s239.

If you are an occupant in the property but not named as a sub-tenant, you do not have responsibilities under the tenancy agreement, refer to 1.2.2 in this toolkit for more information.

1.1.12 Choose to Challenge Tenancy Database Listings

TENANCY DATABASES – WHAT ARE THEY? HOW DO THEY WORK?

Tenancy databases are often used by real estate agents and lessors to screen for suitable tenants. If you have rented a property and the agent or lessor claims that you owe money, or your tenancy was terminated for a serious reason, the agent may list you on a tenancy database and you may find it difficult to rent another property.

Many Queensland real estate agents use tenancy databases such as TICA, however there are other databases used throughout Australia.

The Queensland Residential Tenancies and Rooming Accommodation Act 2008 (the Act) has rules about the use of tenancy databases by agents, lessors and tenancy database operators.

Tenants can challenge a listing where it is due to Domestic and Family Violence (DFV).

QUICK FACTS

✜✜ Tenants can only be listed for a lawful reason

✜✜ Tenants must be informed about proposed listings and can challenge it within 14 days

✜✜ Tenants can only be listed after the tenancy has ended

✜✜ Only tenants named on the agreement can be listed

✜✜ Listings should be removed after a maximum of 3 years

✜✜ Tenants can take action to have the listing removed

REASONS YOU CAN BE LISTED

You left a tenancy and owe money more than the bond

✜✜ If the lessor or agent alleges that you owe rent and you received a Form 11 Notice to Remedy Breach about rent owing and you did not pay.

✜✜ If there has been a dispute about money and you have agreed during conciliation with the Residential Tenancies Authority (RTA) to pay money and you did not pay.

✜✜ If the dispute has been to the Queensland Civil and Administrative Tribunal (QCAT) and there is an order to pay money and you did not pay.

✜✜ If you have abandoned or fled from the tenancy and did not give notice. The lessor or agent may allege that you owe money for things like rent, cleaning and damage and you did not pay.

NOTE: Generally maximum bond is equivalent to 4 weeks rent but if you did not pay a bond and owe money more than 1 week’s rent, you can be listed for the above reasons.

Your tenancy has been terminated by QCAT

You can be listed if the lessor or agent has applied to QCAT to terminate your tenancy due to your objectionable behaviour or repeated breaches and QCAT has made an order to terminate your tenancy.

PREVENTING A TENANCY DATABASE LISTING

You can prevent a listing by

✜✜ Ending your tenancy according to the Act, give notice and return keys.

✜✜ Applying for a refund of your bond from the RTA – if you receive all, some or even a small portion of your bond refund, it can prevent a listing. https://www.qcat.qld.gov.au/

✜✜ Giving your contact details to the agent or lessor; an email address is suitable. Before listing your details, the agent or lessor must notify you that they intend to list you and give you 14 days to object. If you receive a notice, write and object to the proposed listing because it is unjust due to DFV.

HOW LONG CAN YOU BE LISTED?

Your personal information should be removed from the tenancy database after 3 years. If the listing is not automatically removed, you can write to the listing agent and/or database operator to advise the listing is out of date and must be removed.

FIND OUT IF YOU ARE LISTED ON A TENANCY DATABASE

When you apply for a rental property, if the agent or lessor finds that your details are on a tenancy database, they should inform you of the listing. If your tenancy applications are refused, ask the agent whether you are listed and to give you details of who listed you and the database that you are listed on. They should give you this information within 7 days.

Or

Write to the agent, lessor, or database operator, to request a copy of your listing. They must give you a copy within 14 days. They can charge a fee for this information; the fee should not be excessive.

NOTE: Local Housing and Homelessness Services may be able to access a copy of the listing for their clients.

GET THE LISTING REMOVED

You can get a listing removed where it is unjust e.g.

✜✜ a domestic associate caused damage to the premises

✜✜ you escaped from a domestic violence situation

✜✜ it was not safe to return to the premises to clean

✜✜ and because of the listing, you are at risk of homelessness.

Write to the agent and/or tenancy database operator to request that they remove the listing. Provide details of the tenancy, your ID and evidence of DFV. If this is not successful, you can apply to QCAT to have the listing removed because it is unjust under the circumstances.

You will need evidence to support your case such as:

✜✜ A copy of the listing

✜✜ Legal documents, Protection Order or verification from another person about the DFV

✜✜ Your statement or a letter from a community service showing the difficulties you are experiencing obtaining a rental property.

✜✜ Anything else that is relevant, particularly regarding children and family.

Further help
Queensland Statewide Tenant Advice
and Referral Services (QSTARS)
QSTARS provides specialist tenancy advice, advocacy support and referral for Queensland renters.
1300 744 263
Open Mon – Friday 9am – 5pm
(extended hours to 7pm on Tuesdays and Wednesdays)