Part 1.3 LEAVING a Tenancy

1.3.1 Notice Ending Tenancy 

A tenant has a right to leave if they believe that they can no longer safely continue to occupy the premises because of the domestic violence.
s308A

A tenant can give a Notice Ending Tenancy Form 20 
with 7 days notice and provide documents as evidence of domestic violence. s308B

A tenant is liable for rent until the end of the 7 day notice period however they can leave before the notice expires.
s308D & s308E

When a tenant gives a Notice Ending Tenancy and ends their interest in the tenancy, they are not liable for s308G

• break lease costs
• costs relating to goods left on the premises
• reletting fees

A tenant is not responsible for damage to the premises caused by domestic violence. See section on Damage

1.3.2 Supporting evidence of domestic violence s25A Regulations

Supporting evidence of domestic violence means any of the following:-

• a protection order
• a temporary protection order
• a police protection notice
• an interstate order
• an injunction under the Family Law Act 1975 (Cwlth)
• a Domestic and family violence report form signed by an authorised person in any of the following occupations
  • a health practitioner meaning a person registered under the Health Practitioner Regulation National Law, not a student, including a person from
  •  – an Aboriginal and Torres Strait Islander health practice
  •  – medical
  •  – midwifery
  •  – nursing
  •  – occupational therapy
  •  – psychology
  • a person who is eligible for membership of the Australian Association of Social Workers
  • a refuge or crisis worker
  • a domestic and family violence support worker or case manager
  • an Aboriginal and Torres Strait Islander medical service
  • a solicitor

1.3.3 Confidentiality s308I

The lessor, their agent or an employee must not disclose the evidence to anyone except in the following circumstances

• between the lessor and their agent
• between the agent and the lessor
• between an employee and the lessor or agent
• to obtain legal advice from a lawyer
• for a tribunal or court hearing
• as required by law

There are penalties for breaching the tenant’s confidentiality.

Guidelines for lessors and agents are included on page 3 of the Notice Ending Tenancy Form 20 (NET)

1.3.4 Lessor/agent actions
The lessor agent cannot dispute that a tenant is experiencing domestic violence however they can question whether the supporting evidence listed 1.3.2 meets requirements. The lessor/agent may apply to the tribunal to seek an order to have the NET set aside because they believe the evidence is not sufficient. They can apply within 7 days of receiving the NET and must inform the tenant that they are proposing to apply to the tribunal. s308C

The Queensland Civil and Administrative Tribunal will not consider whether or not the tenant has experienced violence and will not examine whether or not the tenant believes it was not safe to continue to occupy the premises. The tribunal will look at the evidence provided with the NET. s308H

It is important that a tenant experiencing domestic violence provides evidence as listed in 1.3.2.

 

1.3.5 Sole tenant s308D

Where a sole tenant gives a Notice Ending Tenancy , they are responsible

• for rent until the end of the 7 day notice period, however they can leave before the notice expires.
• to fulfill their obligations to leave the premises and inclusions clean, in the same condition as at the start of the tenancy

They are not responsible for damage caused by domestic violence and can apply for a bond refund. See section 1.3.7

1.3.6 Co-tenancy s308E

A co-tenancy is where more than one person signs the lease and means that all tenants on the lease (either together or as individuals) are responsible for paying the rent and looking after the premises.

When there is domestic violence, the person experiencing violence can give a Notice Ending Tenancy with 7 days’ notice to end their interests in the tenancy.

This applies in any co-tenancy situation. It applies where the other co-tenant is the person using violence. It also applies where the person experiencing violence is sharing with others but does not feel safe to continue to occupy the premises because of domestic violence; the person using violence may live elsewhere.

When a tenant gives a NET, they are responsible for paying their share of the rent until the end of the 7 day notice period. Where the co-tenant is the person using violence, the person leaving is not responsible for cleaning. Where the co-tenant/s are not the person using violence, the person leaving is responsible for  cleaning their room or making an arrangement with remaining co-tenants about cleaning.

They can apply for a bond refund for the amount of bond held in their name by the RTA. See section on Bond refunds

The tenancy will continue for the remaining co-tenant/s.

The lessor/agent will send a Continuing interest notice informing remaining tenant/s that the vacating tenant’s interest in the agreement has ended. They can give this notice 7 – 14 days after the Notice Ending Tenancy ends. This notice informs remaining tenant/s if they are required to top up the bond,

The remaining tenant/s must top up the bond within 1 month’s of receiving the notice. s308F

1.3.7 Bond Refunds

A rental bond is money a lessor/agent can ask tenants to pay at the beginning of the tenancy as financial security for the tenancy. In Queensland, all bonds must be lodged with the RTA during the tenancy. The RTA will hold and manage the bond and administer the refund of the bond at the end of the tenancy.

Where a tenant is unsure if bond is lodged in their name or do not have the Rental bond number, they can contact the RTA and provide identifying information such as their name, date of birth, address of the rental premises. It can be helpful to flag with the RTA that there is a domestic violence situation, they will adhere to protocols and take extra care if anyone else is seeking information about the tenancy.

Where a tenant has given a NET, they can apply for a bond refund using RTA Bond refund for persons experiencing domestic and family violence (Form 4a). The tenant can download this form from the RTA website and send it to the email address on the Form 4a, at the end of the 7 day notice period. It is strongly advisable to use Form 4a and not use the Online Bond Refund process. The RTA will send a notice of claim to the lessor/agent, the bond will be fast tracked and paid to the tenant where the lessor/agent agrees.

The RTA will not notify remaining tenant/s about the bond refund.

If there’s rent owing or the tenant is responsible for cleaning, the RTA can assist to make an agreement about how the bond will be paid out.

If the dispute is not resolved with RTA conciliation, the party who is disputing the claim can make an application to the tribunal about the bond.

The tribunal’s order cannot penalise a tenant for damage caused by domestic violence experienced by the tenant s136D

Where the tenant ended their interest in the tenancy due to domestic violence, they are not required to provide their new address to the lessor/agent. s205

1.3.8 Damage s188

A tenant who experienced violence is not responsible for damages. They are not required to repair damages or to compensate the lessor for damage.

Good evidence that damage is caused by domestic violence such as:-

• Police report
• Police applications for Domestic Violence Order
• Willful Damage charge
• Domestic Violence Order
• Witness statement
• Lessor/Agents routine inspection reports

See standard letter

Tenants who experience violence are not required to notify the lessor/agent about damage caused by domestic violence. s217

Each person will have the option to make their own choice about how they deal with damage.

1.3.9 Application by co-tenant for termination for ‘damage or injury‘ s312
A person who is a co-tenant may apply to QCAT to end the agreement because another co-tenant has ‘intentionally or recklessly caused, or is likely to intentionally or recklessly cause:

• Serious damage to the premises; or,
• Injury to the applicant or someone else occupying or allowed on the premises‘.

When applying to QCAT for termination for damage and injury the applicant will need to provide a statement and evidence regarding serious damage to the premises or injury or threat of injury to the applicant or someone else.

The applicant will need to name both the lessor/agent and any other co-tenants as ‘Respondents’ to the application.

This approach is useful when the person experiencing violence wants to end the whole tenancy agreement.

1.3.10 Application by tenant’s ‘domestic associate’ for termination for ‘damage or injury‘ s321

If a person occupying the rental premises is a domestic associate of the tenant, but not named as a tenant or sub-tenant on the tenancy agreement, they are not legally responsible for the tenancy agreement and can move out at any time.

If the person is a domestic associate of the tenant, and the tenant has committed damage or injury, or committed an act of domestic violence against the domestic associate, the domestic associate may apply to QCAT for an urgent hearing to terminate the tenancy of the tenant.

1.3.11 Application by occupant for termination for ‘damage or injury’ s322

If a person is an occupant in the rental premises, but not named as a tenant or sub-tenant on the tenancy agreement, they are not legally responsible for the tenancy agreement and can move out at any time.

An occupant may apply to QCAT to terminate the tenancy, if the tenant has committed serious damage to the premises, or injury to the applicant or someone else occupying or allowed on the premises. On the QCAT application the applicant will need to name both the lessor/agent and the tenant or other co-tenants as respondents.

1.3.12 Application for interim order about damage or injury (s323)

If an occupant, or domestic associate, has applied to QCAT for a termination order under s321 or s322 of the Act, and the applicant believes on reasonable grounds the tenant is likely to cause further damage or injury for which a termination order could be sought, the applicant may apply to QCAT under s323 for an interim order to restrain the tenant from causing further damage or injury.

1.3.13 Exit Condition Report

At the end of the tenancy, the tenant must obtain an
RTA Exit Condition Report – Form 14a
to record the condition of the premises. The tenant must provide a signed copy to the lessor or agent when they return the keys and move out. Once the lessor/agent receives a copy of the Exit report they have three (3) business days to inspect the premises, add their comments, and return a signed copy to the tenant.

Tenants must leave the rental premises clean and undamaged, and as far as possible in the same condition as the start of the tenancy, except for reasonable fair wear and tear.

The Entry Condition Report and Exit Condition Report record the condition of the premises at the beginning and the end of the tenancy. Tenants can also take photos when moving in or moving out of rental premises.

If tenants have a dispute with the lessor/agent over the refund of their bond money these documents, along with receipts for carpet cleaning or lawn mowing, can provide important evidence.

1.3.14 Moving out tips

At the end of the tenancy the tenant must:

• Leave the premises clean, similar to the start of the tenancy;
• Leave the premises, as far as possible, in the same condition they were in at the start of the tenancy except for ‘fair, wear and tear’;
• Fill in an Exit Condition Report to record the condition of the property when moving out. It is useful to take photos and keep copies of cleaning receipts. This evidence shows the tenants have met their obligations. This document can be used in evidence as part of a dispute over the bond refund at a later date;
• Return all keys to the lessor/agent and give them a copy of the completed Exit Condition Report. The lessor/agent has 3 business days to inspect the premises, add comments to the Exit Condition Report, and return a copy to the tenant at the tenants forwarding address noted on the form;
• After moving out tenants can apply for a bond refund using Form 4a. If there is a dispute over the bond refund the RTA will hold the bond until the dispute is resolved, or QCAT makes an order about the bond refund.
• It is important to notify the RTA with current contact details to ensure you are kept informed about your bond refund.
• Tenants are not responsible for the cost of general maintenance or reasonable wear and tear over time (such as faded curtains, worn carpet, or scuff marks on floors): (s 188(2); and
• Tenants who have experienced violence are not responsible for repairs and damage caused by DV. It is helpful to have evidence such as police report to verify that the damage relates to DV
• Tenants who have experienced violence are not responsible for costs relating to goods left on the premises

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1.3.15 Tenancy Database listings

In Queensland, many real estate agents and some private lessors are members of tenancy database companies. The main tenancy database company that operates in Queensland is called TICA.

Agents and lessor use tenancy database to check references of prospective tenants and may list a tenant on a tenancy database if the tenant breaches the agreement and there is a lawful reason to list the tenant at the end of the tenancy.

Tenancy laws set out guidelines that lessors and agent must follow when they use a tenancy database. The Act also sets out steps tenants can take if they are listed on a tenancy database for unlawful or unjust reasons and want to dispute the listing in QCAT.

When applying for a rental property agents and lessors must advise applicants of any databases they use and get consent from the applicant to check their references on the database.

If the reference check shows the applicant is listed on a tenancy database they must advise the applicant of this and within 7 days provide written information about who listed the applicant, when they were listed and what database they are listed on.

The maximum length of listing is 3 years. After 3 years the database company must automatically remove the listing.

Rules about listing tenants on a tenancy database

• only people named on the tenancy agreement as tenants may be listed;
• can only be listed after the tenancy has ended;
• can only be listed by for a lawful reason set out in the Act;
• tenants must be informed about proposed listings and given 14 days to object;
• tenants may dispute proposed or existing listings;
• tenants may apply to QCAT to seek removal of listings that do not comply with the Act or are unjust;
• tenants must not be listed for more than 3 years (after 3 years database listings should automatically be removed); and
• When applying for a rental property the lessor/agent must notify the tenant if the agent becomes aware the applicant is listed on a tenancy database.

Some approved reasons for a listing include:

• The tenant owes money over the bond amount;
• There is a QCAT order (or RTA agreement) as evidence of the outstanding debt;
• The tenant has abandoned the premises and there is a QCAT order for an outstanding debt above bond amount;
• During the tenant’s stay they were given a breach notice for rent arrears and the tenant failed to remedy the breach prior to ending the tenancy (rent arrears would have to be more than the bond amount);
• QCAT made an order to terminate the tenancy due to objectionable behaviour by the tenant or tenants repeated breach of the tenancy agreement.

1.3.16 Disputing a tenancy database listing

If a tenant wants to dispute a listing and have their name removed from a tenancy database, the tenant can take the following steps:

• Tenants can write to the agent and the database operator to dispute the listing and request removal in 14 days;
• Tenants can also apply to QCAT for an urgent hearing to seek an order the listing be removed;
• To apply to QCAT tenants need to fill in a QCAT Form 2;
• Name both the listing agent and database operator as respondents;
• Attach evidence of the listing, or proposed listing;
• State why the listing is unlawful, incorrect, ambiguous, unjust, or out-of-date, and should be removed; and
• Request a QCAT order that the listing agent and database operator immediately remove the listing.

When disputing a tenancy database listing it is a good idea to get a copy of the listing from the lessor/agent or tenancy database operator. If the tenant makes a written request for a copy of their listing they must be sent a copy within 14 days. The listing agent or database operator may charge a “reasonable” access fee.

To dispute a tenancy database listing

1. Put your request in writing – write to the agent and database operator to dispute the listing and request removal in 14 days. Attach evidence to show the listing is in breach of listing rules;

or

2. Apply to QCAT – Form 2 Application for Minor Civil Dispute
   to apply for an urgent hearing and seek an order that the respondents take steps to remove the database listing.
    

Tenants can apply to QCAT for an urgent hearing to dispute a tenancy database listing under the following sections:

• Under s460
  – tenants may dispute a listing that is in breach of the listing rules.
• Under s461
  – tenants may dispute a listing if the listing of their personal information is unjust in the circumstances and is causing them severe hardship.
• Under s462
  – tenants may also apply to QCAT to dispute a proposed database listing.

1.3.17 Abandoning a tenancy

If a tenant does not end their tenancy according to the Act, and moves out and abandons the tenancy, the lessor can take steps to terminate the tenancy due to abandonment. The lessor or agent can issue a 7-day abandonment notice, or may apply to QCAT for an abandonment order. s355

A tenant can dispute an abandonment notice, or abandonment order, but must act quickly and apply to QCAT as time limits apply.

It may be difficult to ascertain whether, a tenant has abandoned a tenancy. Under the Act evidence to suggest a person has abandoned a tenancy may include:

• Failure by the tenant to pay rent;
• Presence of uncollected mail, newspapers or other material;
• Reports from neighbours;
• Absence of household goods at the rental property;
• Disconnection of services to the rental property; and/or
• Failure of the tenant to respond to entry notices.

If a lessor or agent believes the property has been abandoned they can take steps to terminate the tenancy in one of the following ways;

• They can send the tenant an Abandonment Termination Notice – RTA Form 15. If the tenant does not respond to the notice within 7 days and apply to QCAT to dispute the Abandonment termination notice, the tenancy is deemed to be terminated.
• Alternatively, the lessor/agent can apply to QCAT for an urgent Abandonment termination order.
  At the hearing, QCAT can declare the tenancy was abandoned on a particular date.

1.3.18 Disputes about abandonment

If a tenant disputes an Abandonment Notice, or wants to seek a review of a QCAT abandonment termination order, they may apply to QCAT for an urgent hearing, but must do so within 28 days of the abandonment notice being issued, or the QCAT order being made.

Tenants can apply to QCAT under s356, for an urgent hearing to dispute an abandonment termination notice. If the tenant applies within 7 days of the notice being issued QCAT has the option to set aside the notice and reinstate the tenancy. If the tenant applies to QCAT within 28 days of the notice being issued QCAT can make an order for compensation if the tenancy has been unfairly terminated.

If the lessor/agent has obtained an abandonment order from QCAT,  a tenant may apply to QCAT under s361
to seek a review of this decision. The tenant must apply within 28 days of the original decision. QCAT can then re-hear this matter and review their decision. If the tenancy has been terminated unfairly QCAT may also make an order that the lessor/agent pay compensation to the tenant for their loss or expense.

1.3.19 Goods and documents left behind after a tenancy ends

If a tenancy ends and a tenant or occupant leaves goods or documents behind in the premises, the lessor/agent must deal with the goods according to s363 and personal documents according to s364 of the Act. Tenants who have experienced violence are not responsible for costs relating to goods left on the premises s308G

The lessor/agent is not permitted to take or dispose of the tenant’s possessions as payment for rent or money owed. This is a breach of s95 of the Act and is a serious offence. If this breach does occur, the tenant may make a formal complaint to the RTA investigations unit who can investigate and prosecute parties who fail to comply with the Act.

After the tenancy ends, if a tenant, or other interested person, is dissatisfied with the way the lessor or agent has dealt with their goods or documents, the person may apply to QCAT for an urgent hearing under s365 Application about goods left on premises.

In QCAT the applicant may seek an order requiring the return of their goods, or compensation for the loss or unlawful disposal of their goods. The applicant would need evidence of their ownership of goods left in the premises and evidence of steps they took to contact the lessor/agent in writing to seek the return of their goods.

1.3.20 Lessor obligations when dealing with goods left on premises s363

When a tenancy agreement ends, if a tenant or occupant leaves goods in the premises, the lessor or agent must safely store these goods for at least one month (s28 Regs). The lessor’s obligation to store tenant goods applies if the value of the goods is over $1,500 (s26 Regs) and it is safe to store the goods. The Act does not provide any guidance about how to determine the value of goods.

Personal documents, which include passports, birth certificates, photographs and money, must be given to the tenant or the Public Trustee within seven days from the date the tenancy agreement was ended, or the documents were found. s364

During the one month-storage period, if the owner of the goods makes a written request for the return of their goods, the lessor or agent must return the goods.

A lessor/agent is not required to store goods if:

• The total market value of the goods is less than $1500;
• Storage of the goods would be unhealthy or unsafe;
• Storage of the goods would cause their market value to be completely or substantially reduced; and/or
• The cost of removing, storing and selling the goods would be greater than the amount raised in the sale of the goods. If the goods do not fall into one of the above categories, the lessor/agent must store the goods for one month; and If the goods are a moveable dwelling (caravan) it must be stored for three months.

If the lessor/agent is required to store the goods, and the former tenant or occupant fails to reclaim their goods, the lessor or agent may dispose of the goods at the end of the one month storage period.

A tenant who has ended the tenancy due to domestic violence, is not liable for costs relating to goods left at the premises. s308G 

At the end of the storage period the lessor or agent may sell or dispose of the tenant’s goods:

• by auction unless the Tribunal orders their disposal by another method;
• the lessor/agent may apply to the Tribunal for an order about disposal of the goods.

1.3.21 Seeking the return of goods left on premises after a tenancy ends

When moving out if a tenant is unable to remove all their goods, it is useful to take photos and make a list of goods left in the premises and to talk to the lessor or agent as soon as possible to make an arrangement about collecting and moving goods. Confirm any agreement in writing.

The lessor/agent must not withhold goods or refuse to return goods.

Where the former tenant, or the person who owns of the goods wants to reclaim their goods, they can:

• Put the request for return of goods in writing;
• Attach a list of the goods; and
• Provide contact details and propose an arrangement to collect the goods.

It’s advisable to do this as soon as possible ASAP

If there is a dispute over the return of the goods, the former tenant or interested person may apply to QCAT for an urgent hearing under s365 application about goods left on premises. At the hearing QCAT can make an order for the return of the goods, or can make an order for compensation, if there is evidence the lessor or agent damaged goods or unlawfully disposed of goods.

A tenant who has ended the tenancy due to domestic violence, is not liable for costs relating to goods left at the premises s308G .

1.3.22 Dealing with debt collectors

Lessors may obtain Landlords Insurance, which may cover them for loss of rental income and loss or damage to their building and contents.

If the lessor makes a claim against their insurance policy, a debt collection agency may contact the tenant they believe is responsible for the costs, seeking payment of the outstanding tenancy debt.

A debt collector may contact a tenant to:

• Provide information about their account owing;
• Demand payment from a tenant and explain the consequences of non-payment; and

• Offer to settle the account, make alternative payment arrangements, or review existing arrangements.

If a tenant has not responded to a debt collector’s letter demanding payment or has not kept to an agreed repayment plan, a debt collector may make contact with the tenant. A tenant should seek legal advice if the tenant received a notice of a court or tribunal hearing.

Debt collectors may contact a tenant by phone, letter, email, and social media or by visiting a tenant in person. Debt collectors must respect a tenant’s right to privacy and by law, they are not permitted to reveal they are a debt collector or provide information about a tenant’s financial situation to another person without the tenant’s written consent.

There are restrictions on the times debt collectors can contact a tenant, for example, debt collectors are not permitted to contact a tenant on national public holidays.

Other restrictions on debt collectors include:

• Phone
  : Debt collectors should not call more than 3 times in a week (or 10 times in a month). Unless a tenant agrees otherwise, they can only call between 7.30am-9.00pm on weekdays, or 9.00am-9.00pm on weekends.
• Face-to-face
  : debt collectors should not visit a client in person if repayment arrangements can be worked out over the phone, by email or letter. However, if a tenant does not respond to other attempts to contact the client, debt collectors may visit the tenant at home as a last option: visits only between 9.00am-9.00pm (weekdays and weekends), but no more often than once a month.
• Social media and email
  : If a debt collector uses email, social media or similar technology to contact a tenant about a debt, they must be reasonably sure that the account is not shared with another person and that their message cannot be viewed by anyone except the tenant.

It is advisable to keep good records of all communication with debt collectors. Include dates and times of contact, how they contacted the tenant (by phone, in person), their name and company, and what was said.

If a debt collector claims a tenant owes money for a former tenancy the tenant can write back to the debt collection agency to seek details of the claim. Tenants can request an itemised list of all claims, a copy of receipts or other evidence to justify each of these claims, and a copy of any QCAT or court order regarding liability for the amount being claimed.

Tenants can dispute claims if the claims are excessive or unreasonable or if the debt collection company cannot provide evidence to justify the amounts being claimed. Tenants can also write to debt collectors and request they do not contact them again if they believe they do not owe any money. If the debt collect continues to contact the tenant after receiving this letter the tenant may then complaint about the debt collectors behaviour to the Australian Competition and Consumer Commission or the Office of Fair Trading in Qld.

1.3.23 Unacceptable behaviour by debt collectors

Under the Debt Collectors (Field Agents and Collection Agents) Act 2014
(Qld) it is against the law for debt collectors to behave in any of the following ways:

• Threatening, trespassing or intimidating the tenant: This includes such behaviour such as threatening physical force towards the tenant or anyone else; damaging (or threatening to damage) the property; blocking access to the tenants rental premises or blocking the tenant’s way; remaining on the rental property when asked to leave, unless they have a Court Order. If a debt collector behaves this way, contact the police immediately.

• Harassing or verbally abusing the tenant: This includes shouting at the tenant or making personal or demeaning comments; using obscene or racist language; or contacting the tenant more than necessary or at unreasonable times.
• Making false or misleading statements or engaging in deceptive conduct: For example, debt collectors must not make false statements about the money a person owes or what will happen if the debt is not paid; send letters demanding payment that are designed to look like court documents; or pretend to be or to act for a solicitor, court or government body.

Debt collectors should not take advantage when the tenant:

• is disadvantaged because of illness, disability, age, illiteracy or other circumstances; and/or
• is not familiar with the law, the debt recovery process, or the consequences of not paying the debt.