Last updated 16 August 2016

Residential tenancies

A residential tenancy agreement can only be ended in accordance with the provisions of ch 5 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRA Act). Termination may occur:

  • without grounds at the end of a fixed-term agreement or during a periodic agreement
  • when the lessor and tenant both agree in writing to end the tenancy
  • when the lessor gives a valid notice to leave and the tenant hands over vacant possession of the premises on or after the handover day
  • when the lessor issues an abandonment termination notice, and this is not challenged by the tenant in the prescribed manner
  • when the tenant gives the lessor a valid notice of intention to leave and hands over vacant possession of the premises on or after the handover date
  • when the Queensland Civil and Administrative Tribunal (QCAT) makes an order terminating the tenancy
  • if, after receiving a notice from a mortgagee, the tenant vacates or is removed from the premises
  • when a sole tenant dies.

See ss 281–300, 302 and 304–316 of the RTRA Act for grounds to issue a notice to terminate a tenancy and grounds to apply to QCAT for termination.

Either party can give notice to terminate the agreement because the premises have been wholly or partially destroyed (unless the premises are destroyed because of a breach of the agreement), the premises have been compulsorily acquired by an authority or can no longer be used legally as a dwelling. The notice must be given within one month of the premises becoming unliveable.

When agreements are terminated outside of the provisions of the RTRA Act or because of a party being in breach of their obligations, the other party may seek compensation for any resulting out-of-pocket expenses. However, there is also an obligation to mitigate loss (s 362 RTRA Act).

Either party can seek to end the agreement by application to QCAT that the tenancy be ended due to excessive hardship (s 295 RTRA Act lessor, s 310 RTRA Act tenant). The tribunal may also order that compensation be paid for any losses arising from the termination of the agreement.

A periodic tenancy can be terminated by the tenant (without giving reasons) by giving a notice of intention to leave (Form 13) to the lessor with two weeks notice. A lessor may terminate a periodic tenancy without giving grounds by giving the tenant two months notice to leave (Form 12) (s 329(2)(j) RTRA Act). If no termination notice is issued prior to the expiry of a fixed-term tenancy, then it becomes periodic the day after a fixed-term agreement ends.

A lessor may not end an agreement without grounds if it is to retaliate against the tenant enforcing their rights. A tenant may dispute a notice of this type through an urgent application to QCAT under s 292 of the RTRA Act within four weeks after the notice to leave without grounds was given to the tenant.

At no time can a tenant be removed from the premises without a warrant of possession from QCAT (s 353 RTRA Act). This is the case even if a valid notice to leave was served and the tenant did not leave on the expiry date. Lessors are prohibited from physically forcing tenants to leave (self-eviction). Police enforce warrants of possession, and they will notify the tenant of the day they intend to execute the warrant of possession.

Either party can apply to QCAT for an order for termination of the tenancy. If a lessor’s application is successful, QCAT may also issue a warrant of possession to allow the lessor to regain possession of the premises. A warrant of possession authorises a police officer to enter the premises and give possession of it to the lessor. The QCAT registrar must give notice to the tenant that an order for possession has been made. The warrant of possession will be executable within three days from the date of the order (nominated by the adjudicator or member) and will remain executable for 14 days. Police will receive a copy and attend the premises on a nominated day and time (usually a few days before the order ceases) and ensure the tenant has left.

Rooming accommodation

Section 366 of the RTRA Act outlines the ways in which a rooming accommodation agreement may end. Termination can occur when:

  • both the resident and provider make a written agreement to end the agreement
  • the provider gives the resident a notice to leave and the resident leaves the premises
  • the resident gives the provider a notice of intention to leave, with the handover date being the end date of the agreement
  • the resident abandons the room and the period for which the rent has been paid has ended
  • after the resident is given a notice from the mortgagee, the resident vacates the premises
  • a sole resident dies
  • QCAT makes an order terminating the agreement.

It is an offence for a person to terminate a rooming accommodation agreement other than in accordance with the provisions of the RTRA Act (s 367).

See ss 369–377 and 379–383 of the RTRA Act for grounds to issue a notice to terminate a tenancy and grounds to apply to QCAT for termination.

A provider can, in the presence of a police officer, use reasonable force to remove the resident from the premises in certain circumstances (s 375 RTRA Act).

Mortgagees

A tenancy agreement may be registered under the Land Title Act 1994 (Qld) to obtain priority over any subsequent interests. A prior or subsequent registered mortgagee will only become bound by such a tenancy if the mortgagee consents to it. Such consent is rare. Although the mortgagee retains a prior interest and is not bound by the tenancy, a mortgagee must give the required two-month written notice to a tenant in residential tenancies and a 30-day written notice to a resident in rooming accommodation, before seeking to take possession of the rental premises pursuant to the mortgage. Acceptance of rent by the mortgagee does not operate as consent to the tenancy. Problems can arise when a dispute arises between the mortgagee and mortgagor regarding a default, and the legal right of possession is contested.

Abandonment

Residential tenancies

In residential tenancies, if a lessor believes on reasonable grounds that the tenant has abandoned the premises, the lessor may give an abandonment termination notice (s 355 RTRA Act). If the tenant does not take action to dispute the notice within seven days after the notice being issued, the premises is assumed to be abandoned. The tenant has up to 28 days after the notice is given to apply for compensation or another order if the abandonment is disputed (s 356 RTRA Act).

Alternatively, the lessor can make a direct application to QCAT declaring that the tenant has abandoned the premises.

The right to deal with any abandoned goods is based on the tenancy having ended. Goods (other than cash and personal papers) may be sold or disposed of if (s 363 RTRA Act):

  • their market value is less than $1500
  • storage would be unhealthy or unsafe, or storage would result in substantial depreciation of the goods
  • the cost of removing, storing and selling the goods would exceed the proceeds of sale.

However, if the owner claims possession by written notice before the goods are disposed of, the former lessor must allow the owner of the goods to reclaim them on paying any reasonable removal and storage costs.

In any other case, the goods must be stored for one month and then sold by auction or as prescribed by QCAT. It is an offence to sell and dispose of the goods in contravention of the RTRA Act or to fail to allow tenants to reclaim possession on paying reasonable storage costs. The sale proceeds can then be used as payment of the:

  • reasonable costs of removal, storage and sale
  • balance to the Public Trustee.

Abandoned personal documents or money must be given to the Public Trustee if the lessor cannot give the personal documents or money to the owner.

The owner of the goods, personal documents or money can apply to QCAT for an order if they are dissatisfied with the way their belongings have been dealt with (s 365 RTRA Act).

Rooming accommodation

A provider can sell or dispose of goods (other than personal documents or money) if:

  • it is perishable
  • the market value is less than $150
  • storage of the goods would be unhealthy or unsafe.

Otherwise, the provider must try to contact the resident about the goods and store them safely for at least 28 days (s 393 RTRA Act).

If the goods are not reclaimed within the 28 days, the provider can:

  • sell the goods after advertising them in a newspaper circulating generally in the area where the premises was situated
  • donate the goods to charity, if the market value of the goods is less than $600.

If the resident reclaims the goods before they are disposed of, the provider must release the goods to the resident upon the payment of reasonable costs.

Abandoned personal documents or money must be given to the Public Trustee after 28 days if the resident cannot be contacted (s 392 RTRA Act).

Database listings

Chapter 9 of the RTRA Act deals with tenancy databases, which list information about tenants and are not used for internal purposes.

A listing on a tenancy database can only be made if a person was named as tenant in a residential tenancy agreement (i.e. a resident on a rooming accommodation agreement cannot be listed), the agreement has ended and one of the following three circumstances exists:

  • An amount of money greater than the rental bond held by the Residential Tenancies Authority (RTA) is owed by the tenant and:
    • the tenant received a notice to remedy breach about rent owing and failed to remedy within the remedy period
    • the tenant failed to pay money owing under a conciliation agreement or a QCAT order
    • the tenant abandoned the premises.
  • The tenancy was terminated by QCAT for objectionable behaviour.
  • The tenancy was terminated by QCAT for repeated breaches.

If a listing does not meet these criteria, the tenant has six months from finding out about the listing to make an urgent application to QCAT for an order against the listing party and the tenancy database company to take all reasonable steps to remove the listing (s 460 RTRA Act). Listings that are unjust (e.g. a result of being the victim of domestic violence) or incorrect have no time limits for applications regarding their removal (s 461 RTRA Act).

A person proposing to list a tenant must give written notice of a proposed listing or have taken reasonable steps to disclose the information to be listed. Not getting a copy of a proposal to list may be grounds for application to QCAT for its removal. If the listing party does not have a forwarding address, they usually send this notification to the last known address.

An application can also be brought in respect of a proposed listing if the person thinks it will be in breach of the RTRA Act.