Last updated 13 December 2016
Residential tenancy agreements
Residential tenancy agreements are made between the lessor (the person who gives the right to occupy residential premises) and a tenant (the person to whom the right to occupy residential premises is given). The lessor may employ an agent who is authorised by the lessor to act on the lessor’s behalf (see sch 2 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act) for a definition of ‘agent’).
While it is unlawful for a lessor or agent not to put an agreement in writing (s 61 RTRA Act), the RTRA Act still applies to agreements not in writing. Non-payment of rent does not disqualify coverage under the RTRA Act.
For periodic tenancies that arise at the end of a fixed-term agreement, all terms and conditions of the fixed-term agreement still apply except for the start and end date. An agreement must contain standard terms as set out in the Residential Tenancies and Rooming Accommodation Regulation 2008 (Qld) to the RTRA Act. The Residential Tenancies Authority (RTA) publishes an agreement incorporating these terms (Form 18a). For public housing tenants, a state tenancy agreement is used. Special terms can also be included, provided they do not conflict with or contract out of the provisions of the RTRA Act.
A copy of the agreement must be given to the tenant, and the tenant must sign and return it within five days of receipt (s 62(2) RTRA Act). A penalty applies if the lessor or agent then fails to provide the tenant with a copy signed by both parties within 14 days of receipt (s 62(3) RTRA Act).
According to the RTRA Act, certain other information must also be provided to the tenant:
- an entry condition report about the condition of the premises as at the start of the tenancy (which must be filled in by the tenant and a copy returned to the lessor or agent within three days after moving in) (s 65)
- an RTA Information Statement (s 67)
- a copy of any applicable by-laws (s 69)
- for moveable dwelling tenancies, a copy of any park rules that apply; for long-term tenancies, park rules are given when the agreement is given to the tenant for signing; for short-term tenancies, park rules are provided at the start of the agreement (s 68).
Rooming accommodation agreements
Rooming accommodation agreements are made between the provider (the person who provides rooming accommodation) and a resident (the person who occupies one or more rooms in a rental premises, shares facilities with other residents, and who is not the provider or related to the provider). A provider may employ or authorise a person as their agent.
Providers and residents can choose to sign a residential tenancy agreement and be covered under the residential tenancy provisions of the RTRA Act (s 18).
A provider is obliged to ensure that an agreement is put in writing (s 77(1) RTRA Act), however, the RTRA Act will still apply to an oral or implied agreement (s 16).
A copy of the agreement must be given to the resident, and the resident must sign and return it to the provider. Within three days of receipt, the provider must provide the resident with a copy of the agreement signed by both parties (s 78(2) RTRA Act).
If a bond is payable, then the provider must give the resident an entry condition report. The resident must complete the report and return it to the provider within three days after moving in (s 81 RTRA Act).
Types of tenancies
Residential tenancy agreements and rooming accommodation agreements can be:
- fixed term—where the parties agree on a tenancy over a fixed term. It will expire automatically and revert to a periodic tenancy at the end of that term, unless the agreement provides for continuation, the lessor issues a notice to leave or the tenant issues a notice of intention to leave
- periodic—where there is a recurring period from rent payment day to rent payment day. If a fixed-term tenancy rolls over into a periodic agreement, all terms and conditions of the previous fixed term will still apply, except for the start and end date.
Rent can be paid by cash, cheque, deposit to a financial institution, EFTPOS, credit card or by deduction from pay, pension or other benefit. These are defined as approved ways of paying rent (ss 83, 98(4) RTRA Act). The lessor/provider and the tenant/resident can make an agreement to pay rent in another way. However, before such an agreement is entered into, the lessor/provider must first outline any costs associated with the new rent payment method and give the tenant/resident a choice of two other approved ways of paying rent (ss 84, 99 RTRA Act).
During the tenancy, the place of payment can be changed by the lessor/provider as long as the new place is reasonable, but the method of payment can only be changed by agreement of both the tenant/resident and the lessor/provider (ss 83(3), 98(3) RTRA Act).
Receipts must be given at the time of payment if rent is paid in cash. Where rent is paid by cheque, a receipt must be issued within three working days if requested by the tenant/resident. A lessor/provider must keep a rent payment record, which must be made available to the tenant/resident within seven days if requested, except when rent is paid in cash or by cheque, and a receipt is given for the payment.
Rent in advance
For fixed-term residential tenancy agreements (except moveable dwelling tenancies), a tenant must not be required to pay more than one month rent in advance. For periodic residential tenancy agreements, moveable dwelling tenancies and rooming accommodation, the limit is two weeks rent in advance. A tenant/resident does not have to pay rent for a period for which rent has already been paid (ss 87(2), 101(2) RTRA Act).
For residential tenancies, a lessor must provide a two-month written notice of a rent increase. For fixed-term residential tenancies, rent may be increased only if the agreement provides for a rent increase and states the amount of the increase or how the increase is to be worked out. In rooming accommodation, a resident must be given at least four weeks written notice of a rent increase.
Where a new fixed-term agreement is being offered with an increased rent at the end of an earlier fixed-term agreement, no notice of increase is applicable, because it is the offer of a new agreement, which the tenant/resident is not obliged to accept.
If a tenant in a residential tenancy agreement considers a rent increase excessive, they may apply to the Queensland Civil and Administrative Tribunal (QCAT) for an order within 30 days of receiving the rent increase notice (s 92 RTRA Act). The tribunal must have regard to the range of market rents charged for comparable premises, the proposed increased rent compared to the current rent, the length of the tenancy, the time since the previous rent increase, the state of repair of the premises and any other relevant matter. There are no similar provisions for rooming accommodation.
According to s 94 of the RTRA Act, the tenant/resident may request a rent decrease if:
- a premises is destroyed or made completely or partially unfit to live in
- a premises cannot be used lawfully as a residence
- a premises is compulsorily acquired by an authority
- there is a substantial decrease in amenity or in the standard of residential premises or rooming accommodation, which is not related to damage caused by the tenant/resident
- facilities or services are no longer available or withdrawn, and the cause is not the result of a breach of the agreement.
However, tenants/residents should pay the correct amount of rent until there is an agreement in writing with the lessor/provider or an order from QCAT is obtained.
In residential tenancies, the lessor must pay all outgoings including charges, levies, premiums, rates or taxes (subject to state exemptions), except for service charges such as electricity, gas and water, which may be payable by the tenant. If a premises is not individually metered for a general service (other than water), the agreement must state that the tenant must pay for the general service, how the bill will be apportioned and how the money may be recovered from the tenant. A tenant may have to pay for all water consumption charges if the premises is individually metered and certain water saving devices are installed. Otherwise, a tenant must be provided with a reasonable quantity of water without charge (s 166(4) RTRA Act). In calculating what is reasonable, regard is given to the number of approved occupants and any other responsibilities under the agreement that may affect water usage (s 166(5) RTRA Act). Tenants in premises that are not individually metered cannot be charged for water (s 166(2) RTRA Act).
In rooming accommodation, a resident may only be required to pay service charges if the resident’s room is separately metered, and the amount to be paid is not more than the amount charged by the service supplier (s 170 RTRA Act).
In residential tenancies, a property must be advertised for a fixed amount of rent (s 57 RTRA Act). It is an offence for a lessor to accept a bond from a tenant where the property is advertised without stating a fixed amount of rent.
A prospective tenant must be given a copy of the proposed tenancy agreement before:
- accepting a document that may commit the tenant to enter into the tenancy
- accepting an amount in relation to the tenancy
- entering into a residential tenancy agreement for the tenancy.
The lessor cannot take money from a prospective tenant unless it is a holding deposit, a key deposit, a bond or rent.
There are no equivalent provisions for rooming accommodation.
Money securing an option to enter into a residential tenancy agreement is called a holding deposit (s 159 RTRA Act). A person receiving a holding deposit must ensure that the property is available if the tenant wishes to proceed with the tenancy. Once the option is exercised, the tenant and lessor must take reasonable steps to enter into a tenancy agreement, and the lessor must apply any holding deposit to bond and then to rent. If the option is not exercised, the holding deposit must be returned in full within three days, unless the tenant fails to give advice within the agreed time of their decision not to rent the property, or if the tenant indicates that they will rent the property and then does not enter into a tenancy agreement. If no time period applying to the option is noted on the receipt, the time is 48 hours after the receipt is given.
There are no equivalent holding deposit provisions for rooming accommodation.
In residential tenancies, a prospective tenant may be asked to pay an amount as a deposit for a key in order to enter and inspect a proposed rental property. The deposit must be refunded in full when the key is returned (ss 156–158 RTRA Act).
Bond is money paid to the lessor/provider as financial protection against the tenant/resident breaching the agreement (s 111 RTRA Act). Bond must be paid to the RTA within 10 days, and the person receiving the rental bond must issue a receipt when the money is received (ss 116, 145(4) RTRA Act). Failure to do either is an offence. In residential tenancies, if an organisation receives assistance from the state to supply rental accommodation and the bond is paid in instalments, the bond must be paid to the RTA within 10 days of receiving the last instalment (s 117 RTRA Act). In rooming accommodation, if a resident pays a rental bond in instalments, the provider must pay all monies to the RTA within 10 days after receiving the last instalment (s 118 RTRA Act). Failure to do so is an offence.
Money paid as rent in advance is not a rental bond. Head-tenants and people in residential share housing need to consider whether or not money they receive from former tenants or new tenants amounts to a rental bond. A payment made by a sub-tenant to a head-tenant for financial security is a rental bond and is quite distinct from a bond that may have been paid by the head-tenant to the lessor.
The maximum that can be charged for bond will differ depending on the type of tenancy. In residential tenancies (other than moveable dwelling tenancies), the maximum bond payable is the equal to four weeks rent.
The Department of Housing and Public Works provides loans for rental bonds in certain circumstances. Information about this program can be obtained from the department’s housing service centres or its website.
Refund of rental bond
Either party can lodge an application for a refund of rental bond (Form 4) with the RTA, however, under s 139 of the RTRA Act, the bond cannot be paid out until after the handover day stated on the notice to leave or notice of intention to leave. If the parties agree on the refund, they can make a joint application for a refund. Tenants/residents should always keep their contact details updated with the RTA.
Disputes over rental bond
If there is a dispute over the bond and only one party’s signature is on the form, the RTA processes the first application for refund of rental bond received from either the tenant/resident or the lessor/provider. The RTA usually sends a notice of claim and a dispute resolution request (Form 16) to the other party. The party receiving the notice of claim has 14 days in which to notify the RTA (by returning Form 16) of their wish to dispute the claim through conciliation (s 136 RTRA Act). If the RTA does not receive Form 16 within 14 days, it will pay the disputed amount according to the instructions on the refund of rental bond form.
If the RTA receives a Form 16, it will usually pay out any undisputed monies to the appropriate party and hold the disputed part of the bond until the result of the conciliation is known. If conciliation is successful, the bond will be paid out in accordance with the conciliated agreement. If conciliation is unsuccessful, the RTA will issue a notice of unresolved dispute to the party who filed Form 16, giving them seven days in which to apply to QCAT for a hearing. If this occurs, the RTA holds the bond until advised by QCAT of the decision.
If an application for a hearing is not lodged with QCAT, or the RTA is not notified by the applicant within the time limit, the disputed amount will be paid out to the party who originally applied for it (using Form 4).
A rental bond may be transferred from one tenancy to another if the tenant/resident and the lessor/provider of the previous property agree and sign a Change of rental property form (previously known as a transfer of bond form) (Form 3). A bond lodgement form (Form 2) still needs to be completed and lodged with the RTA.