Part 1.3 LEAVING a Tenancy

 


Ways to end a tenancy1.3.1 Ways to end a tenancy

A tenancy can only be ended in one of the following three ways:

  1. A Mutual Termination Agreement (MTA) : This is a written agreement between all parties to end the tenancy. All co-tenants and the lessor or agent must sign any written agreement. Alternatively, if one tenant wants to stay, or a replacement tenant is found, all parties could sign an agreement to transfer the tenancy to the remaining tenant, or replacement tenant;

or

  1. A Notice of Intention to Leave (NOITL) or Notice to Leave (NTL): Either party can issue a written notice to end the tenancy. If the tenant issues a Notice of Intention to Leave – RTA Form 13 the tenant must return all keys and hand over vacant possession of the premises on or before the handover day on their notice;

or

  1. Apply to QCAT for a termination order:  Either party can apply to QCAT using a Form 2 – Application for Minor Civil Dispute, to seek an order to terminate the tenancy agreement. Serious reasons to end a tenancy may include damage or injury by another party, or excessive hardship experienced by the tenant.

When moving out of a rental property, a tenant must remove their possessions and leave the property in the same condition as the start of the tenancy, ‘fair wear and tear excepted’  The tenant has an obligation to obtain and fill in an Exit Condition Report – RTA Form 14a and provide a copy to the lessor or agent when the keys are returned. The lessor or agent then has three (3) business days to complete the exit report and provide the tenant with a completed copy of the report.

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Mutual Termination Agreement
1.3.2 Mutual Termination Agreement

If a tenant has a fixed term tenancy, and a situation arises where the tenancy is unable to continue, the tenant may discuss this with the lessor or agent to see if there is agreement end the tenancy by (written) mutual agreement. 

An MTA must be put in writing and all parties must sign the agreement, including the lessor, agent and all tenants or co-tenants.

The MTA should state any agreed terms, such as whether the tenant can leave the tenancy without penalty and will not be liable for rent after the agreed handover day, and agreements about what will happen with the bond, and what amount, if any, the tenant will pay the lessor as compensation for ending the agreement early.

QUICK TIPS: Mutual Termination Agreements

A MTA to end a fixed term agreement early must be in writing and needs to be signed by all parties. A tenant will not be required to give a Notice of Intention to Leave if they have negotiated and signed a MTA to terminate the tenancy. Remember to advise the client to retain a copy of the MTA as evidence.

Refer to the TQ sample MTA in the Appendix at the end of this kit.

Transferring a tenancy to a remaining co-tenant or a new replacement tenant

If a co-tenant, or replacement tenant, wants to take over the tenancy and all parties (including the lessor/agent and any co-tenants) agree to this, all parties can draft and sign a written agreement to transfer the tenancy agreement into the name of the continuing tenant.

Bond refunds and changes to rental bond contributors

If parties agree to transfer the tenancy they may also want to update the names on the rental bond. To do this all parties can sign a Change of Bond Contributors -RTA Form 6 and send it into the RTA. Tenants can use this form as long as one of the original bond contributors is going to stay in the tenancy.

As part of an agreement to transfer the tenancy, the tenant who is leaving may agree to sign over some of their bond to the remaining tenant as compensation for breaking the agreement.

When a replacement tenant takes over the tenancy, the lessor/agent will usually request the replacement tenant sign a new tenancy agreement and pay a bond.

If all tenants are moving out and a replacement tenant is moving in and paying a bond, the outgoing tenants are able to complete and sent to the RTA, a Refund of Rental Bond – RTA Form and apply to the RTA for a bond refund. If tenants agree money is owed for the tenancy, all tenants may agree to allocate a share of the bond to the lessor/agent.


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Break lease
1.3.3 Giving a Notice of Intention to Leave or “Break lease”

To end a tenancy the tenant may give the lessor/agent a Notice of Intention to Leave (NOITL) – RTA Form 13. If the tenant has a fixed term tenancy agreement the Notice of Intention to Leave is still valid, even if the handover date is before the end of the fixed term agreement.

When moving out the tenant must leave the property clean and undamaged, similar to the start of the tenancy (except for reasonable fair wear and tear). The tenant must return all keys to the lessor/agent and hand over vacant possession of the premises on, or before, the handover date stated on their NOITL.

If the tenant has terminated a fixed term agreement early, the lessor/agent can seek compensation for any financial loss they incur. The lessor/agent must take reasonable steps to mitigate (minimize) their loss.

The lessor’s compensation claims may include loss of rent income and costs to advertise and re-let the property. If parties cannot reach an agreement about reasonable compensation claims this dispute may be resolved as part of the bond refund process.

If another co-tenant has not signed the Notice of Intention to Leave, or remains in the premises, the tenant will be unable to hand back vacant possession and return all keys. This means a co-tenant may be unable to properly terminate their tenancy in this way. If all parties cannot reach a written agreement to transfer the tenancy to the remaining tenant or occupant, the outgoing co-tenant may need to apply to QCAT for an order to terminate their part of the tenancy and remove their name from the tenancy agreement.

Refer to Appendix – TQ QCAT sample: ‘Break lease’ letter to Lessor/Agent


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Application to QCAT for urgent hearing to terminate a tenancy
1.3.4 Application to QCAT for urgent hearing to terminate a tenancy

In certain circumstances tenants, co-tenants, domestic associates,and occupants, may be able to apply to QCAT for an ‘urgent‘ hearing to terminate the tenancy. Tenants can also apply to QCAT for a termination order if the lessor has seriously or repeatedly breached the agreement or behaved in an objectionable way.

A QCAT termination order may provide certainty for tenants if they cannot continue the tenancy and are unable to reach a mutual termination agreement with the other parties, or unable to terminate a co-tenancy due to conflict with another co-tenant.

To apply to QCAT for hearing tenants will need to fill in a QCAT Form 2 Application for Minor Civil Dispute – Residential Tenancy and lodge the application with QCAT, along with any attached supporting evidence.

All applications to terminate a tenancy are urgent QCAT applications and can be lodged directly with QCAT without first having to apply to the RTA Dispute Resolution Service.

Under the Act, applications to QCAT to terminate a tenancy include:

  • Termination by tenant for termination due to ‘excessive hardship‘ (s 310);
  • Termination by co-tenant for termination due to ‘damage or injury by another co-tenant‘ (s 312);
  • Application by tenant’s domestic associate for termination for ‘damage or injury by tenant‘ (s 321); and
  • Application by occupant for termination due to ‘damage or injury by tenant‘ (s 322).


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Termination by tenant due to Excessive Hardship
1.3.5 Termination by tenant due to Excessive Hardship (s310)

A tenant can apply to QCAT under s310 of the Act to end a residential tenancy due to the tenant’s ‘excessive hardship’. This applies where unforeseen circumstances have arisen during the tenancy and ‘the tenant would suffer excessive hardship if the tenancy agreement were not terminated.’

Excessive hardship may apply to situations such as relationship break down, loss of employment or income, serious illness, work transfer, or needing to relocate due to family reasons or personal safety or security issues related to domestic violence.

QCAT will look at each application on a case-by-case basis and can make the termination order if they are satisfied the applicant has established the grounds (reasons) for the application. Therefore when applying to QCAT it is important to attach evidence to support the claim.

QUICK TIPS: Applying to QCAT to terminate the tenancy due to Excessive hardship

Tenants can apply to QCAT under section 310 for an urgent hearing to terminate the tenancy due to the tenant’s excessive hardship.

To apply tenants need to fill in a QCAT form 2 Application for Minor Civil Dispute – Residential Tenancy matter, attach evidence, and lodge required copies of this application at the QCAT central registry in Brisbane or the local Magistrates Court that is closest to the rental premises.

A Notice of Intention to Leave does not need to be issued by the tenant if they are applying to QCAT for a termination.


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1.3.6 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.


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1.3.7 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.


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1.3.8. 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.


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1.3.9 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.

QUICK TIPS: Applying to QCAT to terminate a tenancy due to damage or injury

A tenant, co-tenant, occupant or domestic associate may apply to QCAT for an urgent hearing to terminate the tenancy due damage or injury by the tenant or co-tenant.

To apply tenants need to fill in a QCAT Form 2 Application for Minor Civil Dispute – Residential Tenancy matter, attach evidence, and lodge required copies of this application at the QCAT central registry in Brisbane or the local Magistrates Court that is closest to the rental premises.

This application will need to name both the lessor/agent and the tenant or other co-tenants as respondents.

The Applicant will need to attach evidence regarding the damage or injury. This may include documents, photos, phone messages, police reports, copies of protection orders or letters from health practitioners or support workers.

The Applicant may apply to QCAT under one of the following sections:

A co-tenant may apply to terminate a tenancy due to ‘damage or injury’ under s312.

A domestic associate may apply to terminate a tenancy due to ‘damage or injury’ under s 321.

An occupant may apply to terminate the tenancy due to ‘damage or injury’ under s 322.

If a domestic associate, or an occupant, applies to QCAT for a termination order under ss 321 or 322 of the Act at the same time they can also apply for an Interim Order under s 323 to restrain the tenant from committing further acts of domestic violence.

If a person applies to QCAT to terminate the tenancy a Notice of Intention to Leave is not required


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Abandoning a tenancy
1.3.10 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.

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.


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Disputes about abandonment
1.3.11 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 s 356, 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.

QUICK TIPS: Disputing an abandonment termination notice or QCAT abandonment order

If a lessor or agent has reasonable grounds to believe that the tenancy has been abandoned they can take steps to terminate the tenancy due to abandonment:

-Giving the tenant a 7 day Abandonment Termination Notice -RTA Form 15. If the tenant does not apply to QCAT to dispute the termination notice the tenancy is deemed to be terminated after 7 days; or

– Applying to QCAT under s357 for an urgent hearing to request an Abandonment termination order declaring the tenancy was abandoned on a particular date.

A tenant may dispute an abandonment notice by applying to QCAT within 28 days after the notice is given under s356.

A tenant may dispute an order about abandonment by applying to QCAT within 28 days after the decision is made in QCAT under s361.

If QCAT determines the premises was not abandoned it may award compensation to the tenant for any loss incurred to the tenant because of the termination.

If a tenant abandons the premises, a person who is occupying the premises can apply to QCAT to be recognised as the tenant, or be joined as a party to a QCAT matter to dispute an abandonment notice or QCAT order.


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Goods and documents left behind after a tenancy ends
1.3.12 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 the Act. The lessor or agent must deal with goods according to s363 and personal documents according to s364 of the Act.

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.


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Lessor obligations when dealing with goods left on premises
1.3.13 Lessor obligations when dealing with goods left on premises

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. The lessor’s obligation to store tenant goods applies if the value of the goods is over $1500 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.

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. However, the lessor or agent may seek compensation for the reasonable removal and storage costs.

However, 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.

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.

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Seeking the return of goods left on premises after a tenancy ends
1.3.14 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. It is also useful to talk to the lessor or agent to make an arrangement regarding the future collection and removal of the goods. Confirm any agreement in writing.

The lessor/agent must not withhold goods or refuse to return goods. However, the lessor or agent may be entitled to request compensation for the reasonable storage and removal costs.

If goods are left on the premises, the lessor agent must allow the former tenant, or an interested person who is the owner of the goods, to reclaim their goods and must:

  • 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.

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.

QUICK TIPS: Goods left in the premises when a tenancy ends

Goods left in premises if goods are left on the rental premises after a tenancy has ended the lessor must deal with goods according to s 363 in the Act.

The lessor or agent must store the goods for at least one month, as long as the goods are non-perishable and valued at over $1500.

During the one-month storage period, if the former tenant, or owner of the goods, writes to the lessor/agent to seek the return of their goods, the lessor or agent must return these goods as requested.

The lessor/agent can request reimbursement for reasonable removal or storage costs they have incurred.

If tenants or occupants are unable to remove their goods at the end of the tenancy it is useful to take photos and make a list of items. Talk to the lessor or agent to arrange to collect these goods.

If a former tenant or occupant is dissatisfied with the way a lessor or agent has dealt with their goods they can apply to QCAT for an urgent hearing under s365 to seek an order about goods left on premises.

In QCAT the applicant can seek an order for the return of their goods, or seek compensation if the goods have been damaged or disposed of unlawfully.

The Tribunal may make orders for compensation or other orders.

It is a serious offence for the lessor or agent to unlawfully dispose of goods or refuse to return goods. The tenant can make a complaint to the RTA Legal Investigation Unit if this happens and the lessor or agent may face investigation and a fine.


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Moving out tips
1.3.15 Moving out tips

At the end of the tenancy the tenant must:

  • Remove all possessions and 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 also useful to take photos and keep copies of cleaning receipts. This evidence shows the tenants have met their obligations. This document may be used in evidence as part of a dispute over the bond refund at a latter 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 fill in a Refund of Rental Bond – RTA form 4 and lodge it with the RTA to reclaim their bond. 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;
  • 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 may be responsible for repairs if the tenants damaged the premises. If possible, tenants should repair the damage before moving out, or make arrangements with the agent regarding agreed repair costs. Tenants can take photos of the damage and get quotes for reasonable repair costs.


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Exit Condition Report
1.3.16 Exit Condition Report

At the end of the tenancy, the tenant must obtain an RTA Exit Condition Report – RTA 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.


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Bond Refunds
1.3.17 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.

At the end of the tenancy, the lessor/agent may want to claim money from the bond if the tenant has failed to meet their obligations under the agreement.

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.

For more information see the TQ Rental Bond Factsheet.

QUICK TIPS: How to apply for a Refund of Rental Bond

To apply for a bond refund tenants can fill in a Refund of Rental Bond -RTA Form 4 and lodge it with the RTA. Tenants do not need the lessor or agent’s signature to lodge a bond claim at the end of the tenancy.

However if all parties sign an “agreed” form the RTA can immediately release the bond according to the amounts stated on the form. (Never sign a blank form as this is like signing a blank cheque).

If not all parties have signed the form, the RTA will issue a Notice of Claim to the other parties who have 14 days to contact the RTA to dispute the claim.

If there is a dispute over the rental bond, the RTA will hold the bond until all parties reach an agreement, or an application is made to QCAT for a decision about the bond refund.

If other parties do not dispute the bond claim within the required time frames, the RTA will automatically refund the bond according to the first bond claim they received.

When moving out tenants should let the RTA know their new contact details. This ensures the RTA can contact tenants about any bond refund issues.

Keep copies of tenancy documents. They may provide important evidence if there is a bond dispute.­­­­­­­­­­­­­­


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Potential compensation claims by the lessor for early termination of a fixed term lease
1.3.18 Potential compensation claims by the lessor for early termination of a fixed term lease

If a tenant terminates a fixed term agreement before the end date on the agreement, the lessor/agent may seek compensation from the tenant for “break lease” costs resulting from the tenant’s breach of the agreement.

Potential compensation claims by the lessor if the tenant ends a fixed term agreement early may include:

  • Advertising costs; and
  • A re-letting fee, if the lessor employs an agent to find replacement tenants they may have to pay the agent a relet fee. This relet fee is usually equal to one weeks rent plus GST; and
  • Compensation if the lessor suffers a loss or rent income after the tenant moves out. The lessor may claim lost rent income until a new tenant moves in, or the fixed term agreement ends.

These clams may be in addition to any claims for outstanding cleaning costs, tenant damage, or other claims at the end of the tenancy.

Any compensation claims by the lessor or agent must be reasonable. Under s362 of the Act the lessor has a “duty to mitigate loss” and is not entitled to seek compensation for costs that could have been avoided.


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Disputing unreasonable or excessive break lease costs
1.3.19 Disputing unreasonable or excessive break lease costs

A dispute over the lessor’s compensation claims at the end of a tenancy can usually be dealt with as part of the bond dispute process. However, the tenant’s liability is not limited to the amount of bond. The lessor can seek compensation from the tenant whether or not the RTA holds a bond, or the bond has been released.

If the tenant and the lessor/agent cannot agree on the amount of compensation that is reasonable, either party may apply to QCAT for a decision about the bond amount and the amount of compensation owed.

If the tenant claims the lessor/agent is seeking excessive compensation, it is up to the tenant to gather evidence to show the lessor/agent has failed to take reasonable steps to mitigate (minimise) their loss.

Evidence of a failure to mitigate loss may include:

  • Copies of advertisements to show the lessor failed to advertise the property or unreasonably delayed advertising the property for rent;
  • Advertisements showing the property advertised at a higher rent, or if market rents have gone down a failure to reduce the asking rent in order to secure a new tenant within a reasonable time;
  • An unreasonable delay in the date the property was advertised as available for rent;
  • Evidence if the lessor or agent unreasonably refused to allow the former tenant to sublet or transfer the tenancy to a new tenant;
  • Evidence the lessor or agent has unreasonably refused tenancy applications without reasons; and
  • When the tenant moves out taking time to renovate the premises, instead of taking steps to advertise the property and find new tenants as quickly as possible.

QUICK TIPS: Compensation claims if a tenant breaks a fixed term agreement early (break lease)

If the tenant breaks the lease early the lessor can seek reasonable compensation from the tenant for any financial loss the lessor faces due to the tenant’s breach of the agreement.

The lessor may seek compensation for their loss of rent income after the tenant moves out, and costs to advertise and relet the property, (agent relet fees are usually one weeks rent plus GST).

The lessor/agent has a duty to mitigate loss, which means they must take reasonable steps to minimise any financial loss they incur. The lessor is not entitled to claim compensation for costs or loss that could have otherwise been avoided: s362

The lessor/agent must take reasonable steps to minimise their loss and find new tenants as soon as possible.

Compensation claims for breaking a fixed term agreement may be dealt with during the bond claim process.


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Dealing with debt collectors
1.3.20 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 behavior to the Australian Competition and Consumer Commission or the Office of Fair Trading in Qld.


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Unacceptable behavior by debt collectors
1.3.21 Unacceptable behavior 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 behavior 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.

QUICK TIPS: Disputing a debt

– dispute the debt in writing and keep copies of any letters

– do not admit liability if called by a debt collector, but rather write to clarify

– verify debts before paying them

– request an up to date rent ledger and draft a ledger for evidence based on payments made to lessor

– apply for Dispute Resolution – RTA Form 16

– keep copies of evidence of payments

– if  it is believed that a debt is not owed, write to the debt collector and request they do not contact the tenant

– if the debt is old seek legal advice before you make any payments or admit liability

– if co-tenant owes money, send letter of demand and/or apply to QCAT via a Form 3 – Application for Minor Civil Dispute – Minor Debt

– if an insurance company is chasing an alleged debt, request to utilise their financial hardship policy see http://codeofpractice.com.au/for-consumers/financial-hardship

– a debt may be disputed by contacting the Financial Ombudsman Service

-if a debt collector’s behaviour is unacceptable, a complaint can be lodged the Queensland Office of Fair Trading

– for more information contact the ACCC or read the Australian Debt Collection Guidelines for collectors & creditors


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Tenancy Database listings
1.3.22 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.


Disputing a tenancy database listing
1.3.23 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

  1. Apply to QCAT – 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.

QUICK TIPS: Reasons tenants can be listed on a tenancy database and how to dispute an unfair listing

Lessors and agents can only list a tenant after a tenancy has ended and only if there is a lawful reason for the listing s 459. Only tenants named on the tenancy agreement can be listed.

Tenants can only be listed on a database if they left a tenancy and owe money over the bond amount. Tenants can also be listed if QCAT terminated the tenancy due to tenant objectionable behavior or repeated breach of the agreement.

Lessors or agents must notify tenants if they propose to list them on a database and must allow 14 days to dispute the listing. Tenants can apply to QCAT under s462 to dispute a proposed listing.

If a listing is unlawful, out of date, incorrect or unjust, tenants can write to both the listing agent and the database operator to state this and request the listing be removed or amended within 14 days.

Tenants can apply to QCAT for an urgent hearing to dispute unlawful or unjust tenancy database listings.

All applications to QCAT to dispute a tenancy database listing are Urgent QCAT applications

– under s460 tenant can seek removal of a database listing if there is no lawful reason for the listing, or the listing agent cannot provide evidence to justify the listing.

– under s461 tenants can seek removal of listings that are unjust in the circumstances or where the applicant is now facing hardship. Unjust circumstances may include debts that occurred in relation to domestic violence, where a tenant had to leave or another party damaged the premises. Hardship includes being homeless or at risk of homelessness due to the listing.

To apply to QCAT for a hearing tenants can fill in the QCAT Form 2 application. Tenants need to:

– Obtain a copy of the listing (obtain a copy form the listing agent or database operator);

– Attach evidence of the listing, or proposed listing;

– Name both the listing agent and database operator as respondents;

– State why the listing is unlawful, incorrect, ambiguous, unjust, or out-of-date, and should be removed; – – If a debt has been paid provide evidence of this, or state reasons why the listing is unjust; and

– Request a QCAT order that the respondents (both the listing agent and database operator) take steps to immediately remove the listing.

See the TQ Tenancy Databases fact sheet for more information