Last updated 13 December 2016

Residential tenancies

In residential tenancies, a lessor may issue a notice to remedy breach (Form 11) if:

  • the rent payable under the agreement is at least seven days in arrears (except in short-term moveable dwelling tenancies, where there is no minimum period of rent arrears before a tenant may be given the breach notice)
  • the tenant has breached another term of the agreement.

For long-term moveable dwelling tenancies, a breach notice must give the tenant at least five days to remedy a breach of rent arrears. There is no minimum rent arrears remedy period for short-term moveable dwellings. In all other cases, a tenant must be given at least seven days to rectify rent arrears.

If the breach is not remedied by the due date, the lessor can issue a notice to leave for unremedied breach. Different notice periods apply depending on the type of breach and whether or not the tenancy is a moveable dwelling tenancy (see ss 329–332 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) for applicable notice periods).

If the tenant fails to leave by the handover date on the notice to leave, the lessor can apply to the Queensland Civil and Administrative Tribunal (QCAT) to terminate the tenancy. That application must be made within two weeks after the handover date on the notice to leave.

If a notice to remedy breach is received and the tenant does not agree, the tenant can issue a dispute resolution request (Form 16).

If a tenant remedies the breach after the notice to leave has been given, the lessor may either accept the remedy and continue on with the agreement, or may proceed with the notice to leave and apply to QCAT seeking termination if the tenant fails to leave by the handover date.

A tenant may issue a notice to remedy breach giving the lessor seven days to remedy any breach of the tenancy agreement. If the lessor fails to remedy within this period, the tenant may then issue a dispute resolution request (Form 16) to the Residential Tenancies Authority (RTA). If the RTA does not resolve the matter and a notice of unresolved dispute is received, the tenant can apply to QCAT for an order. It is possible to issue a notice of intention to leave after a breach goes unremedied. However, tenants should be cautious with this as QCAT needs to be satisfied that reasonable action was taken to resolve the matter, and that the matter was serious enough to break the tenancy agreement. If the lessor remedies the breach only after the tenant issued a notice of intention to leave, the tenant can either waive the breach and continue with the tenancy, with the lessor’s agreement, by giving written notice to the lessor on or before the handover date, or proceed to hand over vacant possession of the premises on the handover date.

In regard to some breaches, if two notices to remedy breach are issued and a third instance of the same breach occurs within 12 months, with each breach being remedied within the remedy period on the respective notice to remedy breach, the party issuing the breach notices can apply directly to QCAT for a termination order for repeated breaches. Under the RTRA Act, this applies when the lessor breaches:

  • quiet enjoyment (s 183)
  • obligations generally (s 185)
  • obligations for facilities or sites in moveable dwelling parks (ss 186–187)
  • entry provisions of premises (s 202)
  • a provision of an agreement providing for the payment of rent;

and the tenant breaches:

  • their use of the premises (s 184)
  • obligations generally (s 188)
  • obligations for facilities or sites in moveable dwelling parks (ss 189–190)
  • a provision of an agreement providing for the payment of rent.

At no time can a lessor seize, hold or dispose of a tenant’s property as payment for outstanding rent or other moneys owing.

Rooming accommodation

A provider can issue the resident with a notice to remedy breach if the provider reasonably believes the resident has breached the terms of the rooming accommodation agreement. The breach notice must state the particulars of the breach and state the day by which the breach must be remedied.

If the breach was non-payment of rent and, at the time rent was due, the resident had been a resident for:

  • less than 28 days, the resident must be given at least two days to remedy the breach
  • 28 days or more and the rent was two days in arrears, the resident must be given at least four days to remedy the breach.

For all other breaches, the resident must be given at least five days to rectify the breach.

Similarly to residential tenancies, if the breach is not remedied by the due date, the provider can issue a notice to leave for unremedied breach.

If the breach is in relation to rent arrears (as opposed to non-payment of rent) and, at the time rent was due, the resident had been a resident for:

  • less than 28 days, the provider can require the resident to leave immediately
  • 28 days or more, the resident must be given at least four days notice to leave.

In all other instances, the resident must be given at least two days notice to leave the premises for an unremedied breach.

If the provider reasonably believes the resident:

  • has used the resident’s room or common areas for an illegal purpose
  • has intentionally or recklessly:
    • destroyed or seriously damaged the premises or a facility in the premises
    • endangered another person in the rental premises
    • significantly interfered with the reasonable peace, comfort or privacy of another resident,

the provider can give the resident a written notice to leave, requiring the resident to leave the premises immediately for a serious breach.

If the provider issues the resident with a notice to leave and the resident refuses to leave, the provider, in the presence of a police officer, can use reasonable force to remove the resident from the premises (s 375 RTRA Act).

A resident can issue the provider with a breach notice, giving the provider at least five days to rectify the breach. If the provider fails to remedy the breach by the due date, the resident can issue a notice of intention to leave with seven days notice. If a resident intends to terminate an agreement for unremedied breach, the resident should be mindful of whether the breach was serious enough to warrant the termination, and whether reasonable steps were taken to resolve the issue.

The reference to the making of an application about a dispute issue includes a reference to the making of a dispute resolution request.

Similar to residential tenancies, if two notices to remedy breach are issued and a third instance of the same breach occurs within 12 months, with each breach being remedied within the remedy period on the respective notice to remedy breach, the party issuing the breach notices can apply directly to QCAT for a termination order for repeated breaches. According to the RTRA Act, a provider or resident can only terminate for repeated breaches if the breaches are breaches by the provider of:

  • their general obligations (s 247)
  • quiet enjoyment (s 249)
  • entry provisions (s 265)
  • a provision of an agreement providing for the payment of rent,

or breaches by the resident of:

  • their obligations generally (except the obligation to leave their room in the same condition as at the start of the tenancy, fair wear and tear excepted) (s 253)
  • a provision of an agreement providing for the payment of rent.