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The evictions moratorium, what it means and our thoughts

Last week, Queensland put into law the National Cabinet’s six-month moratorium on residential evictions resulting from COVID-19. Here’s summary information on how that’ll work for renters across our state. If you’re directly affected though, seek advice by calling us or check out our website.

The new rules cover the management of rent arrears and evictions, how entries can be made, requirements for dispute resolution, and changes to reasons and processes for ending tenancies. Most changes apply to residents in rooming accommodation as well as general tenancies like houses, units, caravan tenancies and flats.

These new rules will apply to all residential tenancies entered before or during the emergency period (March 29 – September 29, 2020). Some changes will apply to all tenancies while others, like the evictions moratorium, apply only to tenants and residents who meet a specific criterion set out in the new regulations. For this article, we’ll call those criteria ‘COVID hardship’ – they’re explained below.

Let’s focus on the evictions moratorium first.

How does the evictions moratorium help struggling renters?

The moratorium prevents tenants and residents in ‘COVID hardship’ from being evicted for rent arrears or being listed on a tenancy database. The changes set out a new process for the resolution of disputes related to ‘COVID hardship’ rent arrears and reductions.

What is ‘‘COVID hardship’ and who’s covered?

This is a summary of the definition set out in regulation:

A person in ‘COVID hardship’ is a tenant or resident who is:

  • suffering COVID-19 or has someone in their care is who is suffering from COVID-19;
  • in quarantine resulting from a direction;
  • unable to work because their place of employment closed, or loss of business due to public health direction (including loss of trade);
  • self -isolating because they are vulnerable, lives with, or is a primary carer for a vulnerable person;
  • is restricted on travel so they cannot work or return home due to public health order, or unable to leave or return to Australia.

AND

  • has lost 25% or more of income, or the rent is 30% or more of income.
  • if there’s more than one tenant or resident on the agreement, the 25% loss of income as well as the 30% of income paid on rent, noted above, applies to combined household incomes.

If you are in rent arrears (or about to be) because of ‘COVID hardship’, discuss your circumstances with your agent or lessor as soon as you can and put your requests for rent reduction or wavier in writing. If you reach an agreement, record the agreement on one of the new Residential Tenancies Authority (RTA) Rental Variation forms 18d, 18f and 18e (find them here on our website). Read the form closely before signing to fully understand the variation. In particular, look at any special terms on the back of the form, in case it’s binding you to pay rent back at a later date.

If you’re in ‘COVID hardship’ but unable to reach agreement, as long as the agent or lessor knows (or should know) that your rent arrears are because of ‘COVID hardship’, they must issue you a 14 day ‘show cause notice’ (instead of a breach). In the 14 days’ you have to respond, you should either pay the rent owed or inform the agent or lessor that you can’t pay. When that’s done, either party can seek Dispute Resolution (DR) with the RTA. You can apply for DR from the RTA by using their new Form 16a.

If your agent or lessor doesn’t hear from you in the 14 days, they can issue a breach notice, so talk to them early and notify them in writing by email or letter. Check our website for helpful letters.

You’ll need to show evidence of your situation but only the same types of documents you showed the lessor or agent when you first applied for the property prior to moving in. Additional information can be shown to the RTA if needed.

If RTA DR fails and your dispute ends up in the Tribunal, the Tribunal can take into account COVID financial and health considerations when making a final decision. However, the Tribunal cannot order an eviction for ‘COVID hardship’ rent arrears. That means, it’s important you keep copies of correspondence and evidence of your financial and health circumstances.

What about paying the rent?
In the meantime, sit down and work out your budget to determine what’s affordable for you in rent. Leave yourself enough money for other household bills and health needs etc. Offer and pay what you can while your dispute is being settled.

Remember, the new rules support renters not having to pay more than 30% of their income on rent (if they’re in ‘COVID hardship’). That’s a generally accepted benchmark and one that agents often use when assessing applications for rentals. Remember though, all the named tenants or residents will have their income assessed in settling a dispute. You might want to get some advice from the National Debt Helpline.

If you can’t afford the rent and need to leave

The new rules are not generous in terms of letting COVID affected tenants or residents end their fixed term agreement with limited compensation (of one week’s rent). To fit into that category, you or your household have to be in ‘COVID hardship’ AND have lost 75% of your income AND have less than $5,000 in the bank.

Your other option is to apply for an Excessive Hardship Termination (EHT) from the Tribunal. Under the new rules, tenants seeking an EHT due to ‘COVID hardship’ must first go through dispute resolution with the RTA.

Can the lessor end my agreement?

If you are in ‘COVID hardship’ and your fixed term agreement ends on or before 29 September, you must be offered an extension to 30 September 2020 or an earlier date if you request it. This effectively protects you from a ‘without ground’ notice.

However, the lessor may be able to end an agreement (but not during a fixed term) if they or their immediate family want to occupy the property.

A new ground for termination, a Notice to Leave if “premises being sold”, will allow lessors to end the agreement during a fixed term. These grounds include the lessor preparing to sell and wanting vacant possession. This will apply even if you are in ‘COVID hardship” rent arrears.

If you’re not in ‘COVID hardship’ your agreement can still be ended without grounds at the end of a fixed term or during a periodic, with a two (2) months Notice to Leave.

Other grounds for ending agreement by tenants and residents
Tenants and residents will be able to end their agreement with seven (7) days of occupying the property if it’s not in good repair or does not comply with minimum housing standard.

Tenants and residents experiencing domestic violence will be able to end their agreement by providing seven (7) days’ notice with evidence. The range of acceptable evidence has been expanded in the new regulations.

OTHER MATTERS

Entry to property

Tenants and residents can prevent entries for non-essential issues, but not emergency repairs and entries required under other legislation (such as inspection of smoke detectors and safety switches). Non-essential entries include routine repairs and entry to show prospective purchasers and renters.

If the tenant or resident refuses entry they must assist with a virtual inspection. .

Lessors and providers will be released from obligations (e.g. to carry out routine repairs), or the time period for responding extended, when entry prevented entry by the tenant or resident.

Entries can still be made by agreement.

So, what do we think?

There are good things in these COVID protections including that most extend to people living in rooming accommodation (like boarding houses), entries can be refused (with some exceptions) where tenants and residents are immune-compromised, and protections from database listings for COVID-related rent arrears.

However, we think there are gaps and real inequities in these rules – see below – and they are a long way from what was expected. We intend to keep a close eye on them in the in the coming months, hopefully with your help, so we can raise and resolve them at the new Housing Security sub-committee.

The changes don’t focus enough on the public health issue i.e. reducing unnecessary moves, because they:

  • Continue to allow evictions without any grounds if you don’t fit the ‘COVID affected’ criteria
  • Introduce a new ground for lessors to end a tenancy, even during a fixed term, because they intend to prepare the property for sale (with no need to show they’re COVID affected). We think this unreasonable, unnecessary and unfair. Lessors remain able to go directly to the Tribunal to end the agreement on grounds of excessive hardship (unlike tenants who must proceed through conciliation prior). We’re concerned this ground might be used to end ‘reduced rent’ tenancies by stealth.

Tenants with hardship Issues

The changes allow for tenants to end their fixed term agreement with one week’s compensation, though only for extreme financial hardship. Even then the criteria is so tight few, if any, will be able to use it.

That leaves tenants in rental stress with two options – to seek an order in the Tribunal for an Excessive Hardship Termination (EHT) or negotiate a rent reduction. However the new rules require tenants seeking an EHT to proceed through conciliation first (rent debt mounting), unlike lessors who can still go straight to the Tribunal.

Rent reductions and disputes

Clearer guidelines are for determining rent disputes are needed. Tenants are up against it trying to negotiate rent reduction that will not leave them in rental stress, now or with future debt. Negotiation, even with the RTA’s conciliation help, fails to acknowledge the power imbalance between tenants and lessors. Guidelines would incentivise negotiation because a final determination is predictable.

We’re also worried with the timeframes for resolving disputes. Renters should be protected against spiralling debts due to processes that now require RTA DR prior to Tribunal action. If their request for a ‘COVID hardship’ rent reduction is upheld, it should be backdated to when they identified the issue, to protect them from long-term debt and poverty.

Sharehousing issues will be complicated with income assessments and thresholds taking into account everyone on the lease even if they are financially independent.

We think there are unresolved issues for international students who do not fit the ‘COVID hardship’ definition but are unable to travel back to Australia or need to return overseas.

Don’t forget, this is information, not advice. If you’re a tenant or a resident, please call if you’re personally affected and need help to understand your rights and responsibilities. Our advice number is 1300 744263.