Part 1.2 STAYING in a Tenancy

 
The action a person can take to stay in the tenancy may depend on whether they are a domestic associate, occupant, or named on the tenancy agreement as a tenant or co-tenant.

The definition of domestic associate in the Act is the same definition as in the Domestic and Family Violence Protection Act 2012 (Qld)(the ‘DFVPA’).

A domestic associate – has a relationship with the perpetrator of domestic and family violence described as:

  • A spousal relationship;
  • An intimate personal relationship;
  • A family relationship;
  • An informal care relationship.

An occupant – is a person occupying the premises and not named on the Tenancy Agreement (lease agreement).

A tenant is a person named on the tenancy agreement and legally responsible for meeting the terms of the agreement. A co-tenant is someone named on the agreement as a tenant along with other tenants/co-tenants. All co-tenants are individually and jointly responsible for the tenancy agreement.


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Injury to domestic associate
1.2.1 Injury to domestic associate (application to be recognised as a tenant) s245

A domestic associate of a tenant or co-tenant, may apply to the Tribunal under section 245 (Injury to a Domestic Associate) of the Act, for an order recognising the domestic associate as a tenant or co-tenant, because the tenant has committed an act of domestic violence against the domestic associate.

When deciding the application the Tribunal must take into account the following:

  • whether a protection order has been applied for;
  • if an application for a protection order was made, whether an order was made or is still in force; and
  • if a protection order was made whether a condition of the order prohibits the tenant from entering or remaining on the premises.

If an applicant has not applied for a protection order they may be able to provide the Tribunal with other relevant evidence of domestic violence, such as a letter or affidavit from a support worker or health practitioner. If the Tribunal makes an order they can also make any other order they consider appropriate, such as orders about the bond paid by the person’s domestic associate, or orders to prevent a person being listed on a tenancy database. For an application under this section the Tribunal must allow the lessor/agent an opportunity to be heard so the domestic associate must name the lessor on the application as a respondent, along with any other tenants or co-tenants.

Ouster and conditions:
Ouster conditions as directed by the Magistrates Court are those conditions which may prohibit the perpetrator of domestic violence (the ‘respondent’), from remaining at a stated premises, entering or attempting to enter a stated place and/or approaching within a stated distance of a stated premises: ss 57 – 67 DFVPA.

If an Ouster condition is imposed on a respondent (perpetrator of domestic violence), the applicant (as the ‘aggrieved’), may be able to apply under the Act, s 245 for an order recognising the applicant/aggrieved as the tenant instead of the respondent/perpetrator of domestic violence. The court must give reasons for making or not making the ouster condition: s 64(3) DFVPA.

Magistrates Court and tenancy applications:

It is also important to remember the Act also allows the Magistrates Court to hear and decide those tenancy applications ordinarily heard in QCAT: ss 139 (2); 140 (2); 141 of the DFVPA – refer to the QCAT and Magistrates Court section of this toolkit for further information. The court must not be open to the public unless the court orders otherwise: s 141 (3) DFVPA;

Written notice of the tenancy application, an application to remove it to the Magistrates Court or any adjournment of the application must be given to the lessor by the aggrieved or respondent making the tenancy application: s141(5) DFVPA – please refer to the Magistrates Court section of this toolkit for further information.


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Injury or damage affecting occupants
1.2.2 Injury or damage affecting occupants (application to be recognised as a tenant) s246

The Act also applies to a person who is an occupant of the premises but not named as a tenant on the tenancy agreement, where a tenant or co-tenant has, or is likely to intentionally or recklessly cause:

  • Serious damages to the premises; or
  • Injury to the domestic associate or someone else occupying, or allowed on, the premises.

An application can be made to the Tribunal under section 246 of the Act (Injury or damage affecting occupants) to seek an order the occupant to be named as a tenant or co-tenant, instead of the tenant or co-tenant who has perpetrated the violence.

For an application under this section, the Tribunal must give the lessor/agent an opportunity to be heard so the occupant must name the lessor or agent as a respondent on the application, in addition to any other tenants or co-tenants: s246(6).

QUICK TIPS: Applying to QCAT to stay in the tenancy

  • The definition of ‘domestic associate’ s 245 the Act is the same as the definition set out in the Domestic and Family Violence Protection Act 2012 (Qld).
  • To apply to QCAT for an urgent hearing applicants need to fill in a QCAT Form 2 – Application for Minor Civil Dispute – Residential Tenancies.
  • Under section 245  – a domestic associate may apply to be recognised as the tenant (or co-tenant) instead of a tenant who has committed an act of domestic violence. The applicant may also seek an order to prevent being listed on a tenancy database.
  • Under section 246  – an occupant may apply to be recognised as a tenant (or co-tenant) instead of a tenant who has committed damage to premises or injury to the applicant or other occupant.
  • The Tribunal must give the lessor/agent an opportunity to be heard: ss 245(8), s246(6)
  • The applicant must name the lessor/agent and any other tenants or co-tenants as respondent/s on the QCAT application:


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Locks and keys and tenant security
1.2.3 Locks and keys and tenant security

If a lessor/agent or tenant changes a lock they must seek agreement from the lessor/agent and give a key to the other party, unless the other party agrees not to be given a key, or the Tribunal orders a key not be given.

A tenant may change the locks if:

  • There is reasonable excuse to make the change or the lessor agrees to the change; and
  • A copy/copies of the new key/s are provided to the lessor.

It is useful to remember:

  • Changing of a lock by the tenant, without the lessor’s agreement, is evidence the tenant did not have a reasonable excuse for making the change; and
  • The tenant will need the lessors written permission to add any other safety upgrade to the rental property including for example, deadlocks, security screens, sensor lights, or alarms and state in clear terms whether the tenant will be required to remove the fittings at the end of the tenancy.

If the lessor/agent unreasonably refuses a request to change a lock, or add security features, a tenant can apply to the Tribunal for an order (s213). This is a non-urgent application so parties must first lodge a Dispute Resolution Request- RTA Form 16 with the RTA and try to resolve the dispute through conciliation, before they can apply to QCAT for a hearing.

Financial Assistance and support

A domestic associate may apply to Victim Assist Queensland for financial assistance and support services if they are a victim of violent crime, including domestic violence. The financial assistance may cover the costs associated with recovery from domestic violence and may be available for additional safety upgrades to the rental property including other security costs for the rental premises.

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1.2.4 Installing security features and safety upgrades

If tenants need to add security features to the rental premises the first step is to obtain the written consent of the lessor/agent. Some domestic and family violence support services can provide home security support through their Home Security Safety Upgrades (HSSU) service. Following an assessment of risk and consideration of the client’s circumstances, a service may arrange for physical security enhancements to their home such as changing locks, installing door and window locks, installing screens and sensor lights.

Additional safety and security technologies to support women to remain safely in their home is also available through the Keeping Women Safe in their Home (KWSITH) initiative being trialled in Cairns, Ipswich, Rockhampton and Caboolture through the specialist domestic and family violence support services.

Additional safety and security technologies to support women to remain safely in their home is also available through the Keeping Women Safe in their Home (KWSITH) initiative being trialled in Cairns, Ipswich, Rockhampton and Caboolture through the specialist domestic and family violence support services.

The various technologies available through KWSITH include:
– Personal duress alarms with 24×7 monitoring through an external security service;
– CCTV home security cameras linked to devices to record data;
– Victim-focused smartphone technology applications;
– Training and support to raise awareness about technology-facilitated abuse among trial participants; and
– Electronic sweeps, scans and debugging of victims’ homes and belongings for surveillance technology.

To find out more about HSSU or KWSITH contact your local domestic and family violence support service. These specialist domestic and family violence services are available from various funded service providers. Contact the service provider or DV Connect for further information. Additional assistance may be sought thought the Keeping Women Safe in their Home (KWSITH) program to help improve the safety of women and their children escaping domestic violence.

QUICK TIPS: Changing locks or adding security features

The lessor/agent must ensure the premises are reasonably secure and locks, keys and security devices are maintained in working order (s210).

A tenant must seek the lessor’s written consent to change locks or install security upgrades features to the rental property (s211).

Any agreement to change locks or install security features should be put in writing.

The lessor must not unreasonably refuse a request to change a lock (s211).

If the lessor fails to agree to change the locks, the tenant may lodge a Dispute Resolution Request-Form 16 with the RTA to seek conciliation of the dispute.

If the dispute is not resolved the tenant may apply to QCAT for an order to authorise the tenant to change a lock/s (s213).

At the hearing QCAT may consider the likelihood of risk to the tenant’s personal safety and likelihood of break-ins or other unlawful entry to the premises.


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Damage to the rental property and liability
1.2.5 Damage to the rental property and liability

Tenants and co-tenants must not disturb neighbours or damage the rental property. Tenants named on the tenancy agreement are also responsible for the actions of guests and visitors.

The tenant must not maliciously damage, or allow someone else to maliciously damage the rental premises. If premises are damaged and need repair tenants should notify the lessor/agent as soon as practicable.

If the tenant or their guests cause damage the tenant may be liable to carry out the repairs or compensate the lessor/agent for the cost of the repairs.

It is good to negotiate an agreement with the lessor/agent regarding when the repairs will be done and who will be responsible for arranging and paying for the repairs.

If the damage to the property is done by a co-tenant, or a person who was on the property without the tenant’s permission, the tenant can advise the lessor/agent of this in writing and request the lessor/agent seek any compensation from the person who was responsible for causing the damage.

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Paying the rent
1.2.6 Paying the rent

All tenants or co-tenants named on the tenancy agreement are responsible for ensuring that rent is paid on time, and in accordance with the tenancy agreement.

The tenancy agreement will state how much rent must be paid, and how and when rent is to be paid. The way rent is paid can only be changed during the agreement if all parties agree in writing.

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1.2.7 Failure to pay rent

If a tenant fails to pay the rent this is a ‘breach’ of the tenancy agreement and is a serious matter.

If a tenant is late in paying the rent there is a process the lessor/agent must follow to resolve the rent arrears.

The timeframes that apply to rent arrears matters will depend on the type of tenancy as outlined in the table below.

Termination notice periods

Type of tenancyHow many days late?Notice to Remedy Breach for Rent ArrearsNotice to Leave (With Grounds) for Rent Arrears.
General tenancyIf rent is 7 days lateNotice to Remedy Breach for rent arrears

7 days to pay
7 days notice to move out
Moveable dwelling (MD)
Long tenancy
If rent is 7 days lateNotice to Remedy Breach for rent arrears

5 days to pay
2 days notice to move out
MD
Short tenancy
The day rent is dueNo notice needed2 days notice to move out
Rooming accommodation if there longer than 28 daysIf rent is 2 days lateNotice to Remedy Breach for rent arrears

4 days to pay
4 days notice to move out
Rooming accommodation if there less than 28 days.The day rent is dueNotice to Remedy Breach for rent arrears

2 days to pay
Immediate notice to move out

If a tenant is aware they will have problems paying the rent it is advisable they advise the lessor/agent of the financial difficulty as soon as is practicable and seek a written agreement laying out the specific repayment of rent arrears.


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Termination for rent arrears in general tenancies
1.2.8 Termination for rent arrears in general tenancies

If a tenant fails to remedy a breach by the due date on a Notice to Remedy Breach the lessor can give them a Notice to Leave “with grounds”. If a tenant disputes the Notice to Leave, or fails to leave as requested, the lessor/agent cannot self-evict the tenant but must apply to QCAT for an urgent hearing to seek a Termination order and a Warrant of Possession to remove the tenant from the rental premises. This application must be lodged with QCAT within 14 days of the handover day on the Notice to Leave. In rooming accommodation however, the provider does not need to apply to QCAT to remove a resident.

If the lessor/agent applies to QCAT for a Termination order for tenant failure to leave for an unremedied breach of the agreement, the Tribunal may consider a number of issues including:

  • have the correct notices been issued; and
  • is the breach serious enough to justify ending the tenancy?

If a tenant disputes the Notice to Leave it is important they attend the QCAT hearing to put forward their evidence. A tenant can ask QCAT to dismiss the lessor’s application to terminate the tenancy if the lessor/agent has failed to issue the correct notices, if the tenant has evidence the breach is not serious enough to justify ending the tenancy, or the breach has been remedied and the rent has been paid.

If the Tribunal does agree to make a termination order, it will also issue a Warrant of Possession (WoP), which is sent to the local Queensland Police Service (QPS) for enforcement. This WoP is valid and therefore enforceable for 14 days. The police will give the tenants prior notice of the date and time they will attend the premises to enforce the WoP. The role of the police is to ensure the tenants leave peaceably and the lessor/agent can change the locks and recover possession of the rental property.

If a tenant is in rent arrears and the lessor/agent applies to QCAT and obtains a WOP it is advisable for the tenant or occupant to immediate plans to remove all personal goods from the premises. Other tasks include leaving the rental property clean and returning the keys to the lessor/agent this will minimise any potential compensation or bond claims by the lessor/agent.


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Resolving disputes about rent arrears
1.2.9 Resolving disputes about rent arrears

A tenant who is in rent arrears may receive a Notice to Remedy Breach, or Notice to Leave for rent arrears, it is important to talk to the lessor/agent to see if the parties can reach an agreement to continue the tenancy and enter into a rent repayment plan. Tenants need to show they are willing and able to pay the weekly rent and can catch-up any rent arrears. Any rent repayment plan should be put in writing.

The lessor/agent should act reasonably to negotiate a rent payment plan. However, if the lessor/agent refuses to accept a reasonable proposal, the tenant can still write to the lessor/agent to dispute any notices and can attend the QCAT hearing to put forward their reasons why the tenancy should continue.

At the Tribunal hearing the tenant can show their evidence and ask that the tenancy not be terminated, because they have paid the rent they owe, or can pay off the rent arrears within an acceptable timeframe. The tenant can also provide other relevant evidence regarding their circumstances: for example if the rent arrears arose due to domestic violence affecting their tenancy or financial capacity.

QUICK TIPS: Resolving disputes about breach of agreements

If the lessor or agent claims the tenant has breached the agreement they can give the tenants a Notice to Remedy Breach- RTA Form 11 that asks the tenant to remedy the breach (fix the problem) by the due date.

If tenants have breached the agreement, it is important to remedy the breach or talk to the lessor/agent to make an agreement to resolve the dispute. Put any agreement in writing.

If the tenant does not remedy the breach by the due date on the notice the lessor/agent can give the tenants a Notice to Leave – RTA Form 12. This notice may be issued “with grounds” because the tenant has failed to remedy a breach of the agreement.

If the tenant disputes a Notice to Remedy Breach, or a Notice to Leave, they can use a Dispute Resolution Request – RTA Form 16 to apply to the RTA Dispute Resolution Service for assistance to mediate the dispute.

If parties cannot reach an agreement to solve the dispute the RTA will issue a Notice of Unresolved Dispute

If the RTA Dispute Resolution Service sends the tenant a Notice of Unresolved Dispute Notice (‘NURD’) the tenant may apply to QCAT for a hearing.

To apply to QCAT the tenant will need to fill in a QCAT Form 2 – Minor Civil Dispute – Residential Tenancy Dispute for a non-urgent hearing under s426 Disputes about lessor’s notices.

If the lessor issues a Notice to Leave and the tenant fails to leave the lessor/agent can apply to QCAT for an urgent hearing to terminate the tenancy. If this happens QCAT will send the tenants a notice of this hearing. It is important tenants attend this QCAT hearing to present their evidence and say why they do not think the tenancy should be terminated.