These case studies provide general information and examples only. If you are unsure about your legal rights you should get legal advice.
- Appeals and counter-applications
- Common tenancy issues
- Compensation and rent reduction
- Evidence and witnesses
- Multiple tenants
- Notice periods and time limits
- Tenancy agreements
- Urgent disputes
Appeals and counter-applications
Appealing a residential tenancy matter
Louis and Liana rented a house from Joel. Louis and Liana moved out and the bond was returned to them. Some time later, Joel made an application to QCAT for $ 5,955 compensation for damage caused to the property. The tribunal heard the matter and ordered Louis and Liana to pay Joel $3,463.
Louis and Liana lodged an appeal application with QCAT. They appealed the decision on three grounds:
- English is not their first language so an interpreter should have been available to them for the hearing to ensure all relevant evidence was presented
- the adjudicator should not have relied on Joel’s evidence that the exit inspection was conducted within three days of the tenants’ vacating the tenancy.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave for appeal (permission) must be granted before the application can progress.
Liana and Louis claimed that Liana did not provide crucial evidence at the original hearing, and Louis did not provide important documents when asked, because there was no interpreter.
As part of the appeal application, the Tribunal senior member listened to the original hearing transcript and considered language proficiency reports. The member determined:
- the tribunal had not been advised of the need for an interpreter
- the reports showed Louis was proficient in speaking and listening to English
- his behaviour and language during the hearing did not indicate he did not understand the proceeding or needed an interpreter
- Liana did not attend the hearing. At no time did Liana or Louis ask the tribunal to provide an interpreter or to adjourn the hearing until an interpreter could be made available.
The member determined this was not a valid reason for not having provided evidence during the original hearing.
The second grounds for appeal related to evidence of the exit condition report. Neither party provided a copy of the report at the original hearing, even after being asked by the adjudicator. Based on submissions, the adjudicator accepted evidence from Joel that an inspection had been undertaken on the property within three days of Liana and Louis leaving.
Liana and Louis submitted a copy of the exit condition report with their application to appeal the original decision. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce such evidence must satisfy three tests. The member considered this grounds and determined that Liana and Louis could have produced this report at the original hearing, and it was not likely to have had an important impact on the result of the case.
The member questioned the credibility of the evidence – the report had not been signed by Joel and included a signature block allegedly from Joel with incorrect dates.
The tribunal determined leave to appeal should be refused.
Counter-applications and bond disputes
Jerry and Carol rented residential premises from Alf for two years. After the tenancy expired Alf’s managing agents brought proceedings in QCAT claiming arrears of rent, cleaning costs after Jerry and Carol vacated, and compensation for a damaged lock and a missing hose and fittings. The agent sought an order that the amounts claimed should be subtracted from the tenants’ bond.
Jerry and Carol lodged a response and counter-application denying Alf’s claims. They also sought the return of two thirds of the rent they had paid as compensation for misleading and deceptive conduct, statutory breaches of duty, statutory offences, negligence and misconduct; and, a further $1,600 for compensation “for the state of cleanliness and repair that the house was in upon the commencement of our tenancy”; and, punitive damages of at least 5 percent of the profit of the real estate agents’ business during the period of the tenancy.
At the hearing, Jerry and Carol said that the bathroom was always mouldy. They alleged that the oven timer did not work making it difficult to prepare meals for their son, who was gluten intolerant. They said that insect screens were dirty and there was a hole in the screen in the second bedroom.
The agent gave evidence that Jerry and Carol never complained about the oven. When she inspected the house, the bathroom windows were always closed and the blinds drawn, so it was dark and damp. The agent denied that the house was dirty when they moved in, and has provided the tribunal with a copy of the entry condition report.
The tribunal rejected Jerry and Carol’s claim relating to the condition of the house when they moved in, and the broken oven timer, because the claims were made more than 6 months after they became aware of those alleged breaches. The tribunal also rejected the claims for misleading and deceptive conduct, statutory breaches of duty, statutory offences, negligence, and misconduct, because they are not claims within the tribunal’s residential tenancy jurisdiction.
The tribunal ordered that the bond be paid to Alf to compensate for rent arrears, cleaning and damage done to the premises.
Common tenancy issues
Mould is a frequent source of complaint for lessors and tenants alike, particularly if it is accompanied by medical problems. The Residential Tenancy and Rooming Accommodation Act 2008is essentially consumer protection legislation and tenants’ rights related to this issue may be covered under a number of sections of the Act including:
- s185(3) – that a landlord maintains premises so they remain fit for the tenant to live in
- s94 – rent abatement if the amenity or standard of the premises has decreased substantially “other than because of malicious damage” caused by the tenant.
The Act sets out that unless the issue is clearly the fault of a tenant the lessor must address any naturally occurring “bad luck” that affects the quality of the tenancy, especially where health and safety is concerned.
So what should a tenant do when a property is affected by mould? It’s simple:
- don’t just walk out
- don’t stop paying the rent
- follow the procedure outlined in the Notice to remedy breach (Form 11)
- if you do not get satisfaction, file an application with QCAT for compensation. Quickly.
And how is QCAT likely to respond? In simple cases the tribunal will probably order compensation but in more serious cases where premises may no longer be liveable, the tribunal may terminate the lease without penalty for the tenant. The tribunal regularly receives requests for rent decreases. The Act is very strict and there is little scope for discretionary decision making. Section 942(b) states "in the event that the amenity or standard of the premises decreases substantially” then "the rent payable under the agreement decreases accordingly”.
Regardless of how hard a lessor may try to rectify a situation, if the amenity reduces substantially, the rent may also decrease until the amenity is restored. In determining the reduction in rent, the tribunal will consider what other facilities are on the property – such as yard, lounge, kitchen – and it may also compare what a similar house in the same area, without that problem, may rent for.
Breaking a lease
The Residential Tenancies and Rooming Accommodation Act 2008 (the Act) sets out the need for some formality in terminating a tenancy.
By far the easiest way to terminate or break a lease is by a written termination agreement signed by both the tenant and the lessor (or property manager).
Most property managers will use a standard form of termination agreement. Some care needs to be taken with these. Most are perfectly fair, but if they try to impose further obligations upon the tenant than are provided by the Act those provisions may be void. An example would be a provision that the tenant pay fees greater than the reasonable costs of reletting the premises.
Termination agreements also often include a provision that a tenancy (or at least the obligation to pay rent) continues until the premises are relet. It is likely that it would be implied in such agreements that the lessor or property manager must use reasonable efforts to relet the premises quickly.
Informal agreements to terminate are not recognised under the Act and can cause trouble. They may mean that in law a tenancy continues even after vacant possession is given, contrary to the intentions of both sides.
A tenant with grounds to terminate (for example excessive hardship), can apply to QCAT for a termination order. This will be an “urgent” application and come to hearing quite quickly, but the Tribunal cannot backdate the termination order, and meanwhile the tenant will be responsible for the rent and other obligations under the tenancy agreement.
If QCAT makes a termination order then a tenant will not be in breach of the tenancy agreement and no further monetary compensation will be payable to the lessor from the date of termination.
Otherwise the tenant should compensate the lessor for the loss of rent arising from the break lease. This will be an amount equal to the rent until the end of the fixed term or earlier reletting. The lessor and property manager must use reasonable efforts to relet the premises quickly. A break lease fee will usually be charged by the
property manager to the lessor as will the cost of advertising and these charges in so far as reasonable will also be payable by the tenant.
If recovery of monetary compensation from the tenant is required or there is a dispute about the amount of compensation, an attempt to conciliate the issue must first be made with the RTA ahead of an application being made to QCAT. The Tribunal cannot deal with the matter unless this has occurred and a notice of unresolved dispute has been issued.
Reopening an application in residential tenancy
Wendy lodged a residential tenancy application with QCAT claiming compensation over a residential tenancy dispute. The Tribunal dismissed the application as there had been no conciliation attempt between parties via the Residential Tenancy Authority (RTA), which is a requirement of the Act, and Wendy had failed to prove her case.
Wendy then applied to the Tribunal to reopen the matter to consider additional evidence including a medical report and a notice of unresolved dispute from the RTA.
In order to successfully apply for reopening, Wendy must show that she would suffer an injustice because she has significant new evidence that was not previously available. The Tribunal determined there was nothing to support that the evidence Wendy wanted to submit was new evidence which was not reasonably available for the original hearing.
The application to reopen the matter was refused.
Reopening: Can a case be heard again?
Smith Street Real Estate* applied to QCAT for a termination order to end Elle*’s tenancy of her apartment.
Based on evidence that rent was in arrears, the tribunal made the termination order and a warrant was issued. The warrant was executed on 1 December and Elle was removed from the premises.
The same day, Elle contacted QCAT to advise she was not aware of the hearing that had resulted in the termination order being made. Elle wanted the matter to be reheard and lodged a Form 43 application for reopening.
Elle lodged the form 2 weeks later. She asked for a reopening of the matter on the basis that she had been unaware of the hearing date, and that significant new evidence had arisen; the building lift was not working at the time of the hearing, which caused Elle anxiety and stress, and meant she was unable to move her furniture out of the apartment.
Elle stated she was not advised of the hearing because Smith Street Real Estate had not provided her correct contact details on their application. The agency claimed they had advised Elle on several occasions about the pending application and the outcomes if a termination order was granted. Elle claimed she could not move out of the apartment because of the broken lift, while the real estate agent submitted there was ample space for the furniture to be moved despite the lift being inoperable.
Pending a decision from the tribunal, Elle made a new application to the tribunal seeking a full bond refund and $5,000 compensation for the lifts being out of order.
The tribunal determined it was likely Elle had been aware of the original hearing for the termination order. As the original decision for the termination order was based solely on rent arrears, the tribunal refused the application for the matter to be reopened.
The new application made by Elle regarding her bond and compensation will be treated by the tribunal as a separate matter.
Evidence and witnesses
Evidence the key to rental disputes
ABC Property leased a residential property to Anna and Craig for a 3 month period. After the couple vacated the property, ABC Property made an application for $473 compensation from Anna and Craig for additional cleaning, repairs and other works.
Anna and Craig accepted liability for the cost of flea treatment, but disputed the costs claimed for cleaning, repairs to wall dents, engaging a locksmith and removal of a wooden bath mat.
ABC Property was unable to offer sufficient evidence to support their claim: no photographs were taken to show additional cleaning was required, the exit condition report was not signed or dated by either party and no evidence was provided regarding the claims extra keys were cut by Anna and Craig.
ABC Property was able to show that the bath mat was part of the original entry condition report signed by Anna and Craig, and correspondence which reflected Anna and Craig were liable for the repair of the wall dents.
Based on the evidence presented, the tribunal determined no costs should be awarded for additional cleaning or locksmith services. The member awarded ABC Property $121 for pest treatment and replacement of the wooden bath mat, to be deducted from the rental bond held by the Residential Tenancies Authority.
Notice periods and time limits
How notice periods can change a case
Jana rented a house from Li Real Estate*. Jana was 49 days in arrears of rent.
Li Real Estate issued a notice to remedy breach to Jana to advise in writing she had broken the tenancy agreement and requesting she pay the outstanding rent.
Under the conditions of issuing a breach notice about unpaid rent, Jana had 7 days from being provided with the notice to remedy the breach and bring the rent up to date.
When Li Real Estate did not receive a payment from Jana, they issued her with a Notice to leave (Form 12). Jana claimed she had not been given adequate time to remedy the breach and did not vacate the house.
Li Real Estate made an application to QCAT to end the tenancy agreement and remove Jana from the premises. The QCAT adjudicator found Li Real Estate had not given Jana the required notice period to remedy the breach. Noting the difference between issuing a notice and the tenant receiving the notice, the adjudicator found that Jana would have received the notice only six days before the date the breach needed to be remedied.
Under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), Jana should have been given at least seven days to remedy the breach and pay the outstanding rent. The adjudicator found QCAT did not have the ability to waive requirements of the Act; the application by Li Real Estate was dismissed.
Li Real Estate appealed the decision.
The Appeals Tribunal re-examined the matter and upheld the decision; the adjudicator was correct in finding Li Real Estate did not give the necessary seven days notice and that the notice period in the Act is mandatory.
The appeal was dismissed and Jana remained in the property.
Managing room-by-room rentals
Adam, Steven, James and Ben rented a house from Mr and Mrs Johnson in August 2012 for a 3-month term. Each of the four student tenants paid a $400 bond and $100 rent per week. The tenancy agreement included a special term requiring each tenant to pay one quarter of any bills for the property.
James and Ben moved out in October 2012 and each received their $400 bond back from Mr and Mrs Johnson. After the tenancy agreement expired in November 2012, the tenancy continued as periodic. No further written tenancy agreement was entered into.
In March 2013 Jessica and Alison moved into the property. They were not asked to pay a bond to Mr or Mrs Johnson.
Alison and Jessica moved out of the property in June 2013. Adam and Steven continued to pay $100 rent per week each and were the only remaining tenants.
Adam and Steven vacated the property in May 2014. In October 2014, Adam and Steven submitted a residential tenancy dispute application to QCAT each seeking the return of their $400 bond still held by Mr and Mrs Johnson.
Mr and Mrs Johnson filed a counter-application seeking $9,500 rent arrears. They also claimed $500 for repairs to five broken windows.
Mr and Mrs Johnson claimed Alison and Jessica were sub-tenants of Adam and Steven so Adam and Steven should be liable for their rent after they left the property. However rent ledgers showed rent payments being made by Alison and Jessica directly to Mr and Mrs Johnson.
The Tribunal determined Adam and Steven were not liable for the rent arrears claimed. The four tenants named in the original residential tenancy agreement were not jointly liable for total rent of $400 per week. They were required to pay $100 per week and one quarter of any bills. The Tribunal concluded the tenancy was clearly room-by-room student accommodation.
They were also not liable for repair of broken windows. The windows were all in common areas shared by tenants and it was impossible to determine who was responsible as no entry or exit condition reports were completed.
The Tribunal found Adam and Steven should each have their $400 bond returned by Mr and Mrs Johnson. No rental arrears were awarded to Mr and Mrs Johnson.
Time limits in money claims
Losing a case in QCAT because of a missed time limit for bringing the claim to the tribunal is frustrating. In most money claims under the Residential Tenancies and Rooming Accommodation Act 2008, a six month time limit applies. The clock starts when one party first becomes aware of the other party’s breach. It stops when a dispute resolution request is made by completing and sending Form 16 to the RTA. Submission of this form is essential before QCAT is able to hear the claim.
Time limits apply to both lessors (and their property managers) and tenants.
Claims for a reduction of rent are dealt with differently. Such claims can succeed in a range of circumstances including where:
- serious storm damage or flooding has made a property unfit to live in or partially unfit to live in (and neither side is to blame for the event)
- there has been a reduction in the amenity or standard of the premises which isn’t the result of malicious damage by the tenant
- services to the tenancy are ceased, which is not the fault of the tenant.
In rent reduction claims, the six month time limit does not apply. If there is a dispute about the claim that becomes an “issue”, an attempt at conciliation by the RTA is required prior to the matter coming to QCAT for a hearing.
1. A generous lessor permits his tenant to fall nine months behind in rent while the tenant receives medical treatment. Although the treatment is successful, the tenant still doesn’t pay the rent.
Outcome: Any rent due, and which was unpaid more than six months before the Form 16 was sent by the lessor to the RTA, will be irrecoverable.
2. A tenant causes extensive damage to a property and then abandons the tenancy. As the property manager does not have a forwarding address, he waits seven months before sending a Form 16 to the RTA, ready to bring a QCAT claim.
Outcome: It’s too late to bring the compensation claim because the six months time limit expired prior to the date of Form 16 being submitted.
3. Within a week of a 12 month fixed term tenancy starting, serious mould appears in a house. The tenant claims that water penetration through the walls, because of poor property maintenance, is the cause of the issue. The lessor disputes this and blames the tenant for not properly ventilating the premises. Four months into the tenancy the mould causes permanent damage to the tenant’s furnishings and part of the property cannot be lived in. As a result, the tenant vacates the property. More than two months after leaving, the tenant completes a Form 16, seeking conciliation of a compensation claim for the furniture damage and relocation costs.
Outcome: If the tenant is right about the cause of the mould the claim is out of time. The tenant would have been aware of the lessor’s breach more than 6 months before the Form 16 was submitted. The tenant needs to re-cast the claim as a rent reduction claim because such a claim is not subject to the 6 months’ time limit (a new Form 16 may be necessary). If successful, the rent reduction claim can only result in a credit on the rent ledger: consequential losses (e.g. damage to furniture or relocation costs) cannot be recovered in a rent reduction claim, although such losses might be taken into account in assessing the amount of the rent reduction.
Disputing co-tenants and domestic violence
Regardless of the issue in dispute, “it’s all about the Act” and the decisions about matters coming before the tribunal will be determined under legislative guidelines.
Tenancy agreements are contracts in which people agree with a lessor that they will live in the property, and pay rent, for a fixed period of time. Sometimes an agreement will name multiple tenants. But what do tenants do if they no longer get on or change their mind about living together? In the absence of hardship or domestic violence, the Residential Tenancies and Rooming Accommodation Act 200808 provides that this is the tenant’s problem. However, the Act does provide a break lease procedure but tenants need to follow the guidelines covering this issue carefully.
Section 310 of the Act includes provision for excessive hardship as a discretionary remedy that may be applied to terminate a lease after consideration of a tenant’s circumstances. However, such circumstances must be more than just hardship and usually not just because it’s the tenant’s choice to terminate the lease. For example, the provision for hardship might apply if the single breadwinner in a family has lost their job and the family leaves a rental property to move in with relatives. In such a case, the tenancy would be terminated but the bond given to the lessor to compensate for lost rent if the property is not rented before the end of the lease. It would not apply however, if tenants bought their own home and then advised the lessor they couldn’t afford to pay both rent and mortgage. It might not apply if a tenant was offered social housing and said “it was so cheap I had to take it”.
During a hearing, a commercial
arrangement is usually worked out with the tenancy being terminated on a date which allows the lessor a good chance of renting the property again (usually around 4 weeks). In addition, the tenant will usually have to pay a break lease fee to the agent for the work required to find a new tenant.
Breaking a lease due to domestic violence is covered under s321. Without a domestic violence order (DVO) from the Magistrates court, it is difficult to prove. It will apply, for example, in circumstances where a tenant has a DVO and moved out leaving a financial penalty for the lessor.
For the tenant’s safety the tribunal may order that the tenancy is terminated at the date the tenant left but the bond remains with the lessor. Decisions in these cases are discretionary, as recently highlighted during a hearing where a young woman produced a DVO but had signed a new lease three months earlier with same partner. She was unsuccessful.
Compensation and rent reduction
Claims for compensation and reduction in rent
The Residential Tenancies and Rooming Accommodation Act 2008 (the RTRA Act) provides two ways for a tenant to obtain relief if the premises falls into disrepair and the lessor does not take steps to remedy the situation.
The first, under s94, is to make an application for a decrease in the rent to be paid. The second way is to make a claim for compensation for breach of the residential tenancy agreement under s419.
A recent decision by the QCAT Appeal Tribunal in Peter Matthew Campbell t/as Peter Campbell Realty v Andrew Donker highlights the differences in how the two sections operate and the need to act within the time limits when seeking compensation under s419.
Mr Donker entered into a residential tenancy agreement in 2008. He complained of mould in the premises from commencement of the agreement. The agent addressed, but did not fix, the mould issue, and nothing further happened until early 2012, when Mr Donker noticed moisture penetration. He called a plumber called who carried out urgent repairs. He reported that there was water damage causing mould. He recommended repair to the roof and guttering so water could flow away.
Nothing was done about the ongoing mould issue so Mr Donker stopped paying rent. The agent applied for a termination order for non-payment of rent, with rental arrears being $3,503.57 at time of hearing, and Mr Donker filed a counter-application claiming rent reduction of the previous 12 months of $5,720.00.
At the hearing, QCAT accepted evidence the mould problem had been in existence for more than 12 months and found the agent in breach of the tenancy agreement under s185(3)(a) of the RTRA Act for failing to ensure that the premises were fit for the tenant to live in. QCAT ordered in favour of Mr Donker with a rent reduction of $5,720.00 under s94 of the Act and $170.00 emergency repair costs.
The agent filed an application for leave to appeal the decision.
The appeal tribunal considered two issues which are of general importance. The first was whether the Tribunal can make and order a rent decrease under s 94 because a breach of the tenancy agreement under s 419. The second issue was whether an order for a rent decrease under s 94 can be by way of a lump sum to compensate a tenant over a period of time during which the premises were in a state of disrepair prior to the making of the application for relief.
Section 94(1) allows a reduction in rent if the premises are destroyed or, made completely or partially unfit to live in a way that does not result in a breach of the agreement; or no longer may be used lawfully as a residence or are required compulsorily by an authority. The appeal tribunal held that, because the member had found as a fact that the owner had breached the agreement, this subsection did not apply.
Section 94(2) refers to premises where the amenity or standard of the premises decreases substantially other than because of malicious damage caused by the tenant. There must be a finding of fact that the amenity had decreased substantially. The fact that Mr Donker continued to live in the premises tended to suggest that the amenity had not decreased substantially.
The appeal tribunal held that all s94 permits is a decrease of rent for a specific amount. It does not permit lump sum compensation calculated by the amount of the rent reduction and the period of time over which the amenity or standard of the premises has been decreased. The tribunal can order a reduction in rent for the balance of the lease or until the amenity is restored.
If the reduction in livability, amenity or standard of the premises is as a result of a lessor’s breach of the tenancy agreement, the tenant has a right of action for an order from the Tribunal under s 419 of the Act. The Tribunal could not award compensation was under s419 because Mr Donker’s application for compensation was lodged outside with the six month limit.
Sally rented a house in rural Queensland. The house was old and in need of maintenance. After complaining to the agent she rented through, council officers examined the house and issued a report. It described the building as being in a dilapidated condition and citing missing panes of glass, leaking roof sheeting, broken and missing external wall cladding, unsafe back steps, damaged timber floor joists and bearers. They also discovered exposed asbestos in some parts of the house.
Sally asked for a reduction in rent and advised she was going to terminate her tenancy. She could not move out straight away as she had nowhere else to live. The owner did not agree with Sally’s proposal and so she applied to QCAT.
An urgent hearing was scheduled. Sally’s rental agreement was terminated four weeks from the date of the hearing, the owner was ordered to reduce rent by $50 a week for the rest of the time she was to live in the house and pay Sally $1000 compensation.
When is a tenancy agreement in place?
Donna and Ali contacted Your Family Realty about a property to rent for $510 a week. They inspected the property and signed a tenancy application form.
Your Family Realty approved Donna and Ali’s application and advised they were required to pay ‘a deposit of 2 weeks rent and 4 weeks bond’ to secure the premises.
Donna and Ali paid the agency $3,060, but had not signed the tenancy agreement.
After receiving the deposit, Your Family Realty ceased marketing the property to other prospective tenants.
Donna became concerned that the rent for the property was not reasonable based on similar properties in the area. Donna and Ali declined the offer of the agency to reduce the rent to $505 weekly. They advised they would not proceed with renting the property and requested refund of their deposit of $3,060.
The agency declined to refund the deposit as Donna and Ali had verbally accepted the property and paid the bond and first two weeks rent. The agency claimed this constituted an agreement. They would treat the situation as though Donna and Ali had broken the lease, and would not refund the deposit.
Donna and Ali made an application to QCAT seeking a refund from Your Family Realty.
The QCAT adjudicator determined that it was the intention that a written tenancy agreement be entered into. However the Residential Tenancies and Rooming Accommodation Act 20088 (the Act) is clear that the lessor (Your Family Realty) must ensure that any tenancy agreement is in writing, and be submitted and accepted in a manner that commits the tenant to the tenancy.
QCAT determined that there was no signed enforceable general tenancy agreement and that Your Family Realty proceeded as if an agreement was in place at its own risk.
QCAT ordered Your Family Realty to refund Donna and Ali $3,060 and the QCAT application fee of $101.40, a total of $3,161.40.
What’s urgent and what isn’t?
Most residential tenancy matters are considered urgent by all involved - the lessor, agent or tenant. But for Kate and Brett, deciding whether the dispute is urgent is determined by the Residential Tenancies and Rooming Accommodation Act 2008.
What is not considered urgent?
Most disputes are classed as non-urgent including a dispute about a rental bond, a general dispute between parties, a breach of a conciliation agreement and a general dispute between sub-tenants and head tenants.
Regardless of how important you think your dispute is, if you make an application to QCAT marked as an urgent matter which is not considered urgent by QCAT, your application is likely to be rejected. It will be referred back to the RTA Dispute Resolution Service – even if the RTA does not still hold the bond.
What disputes are treated as urgent??
The Act identifies some issues as ‘urgent’ including a range of termination, abandonment, compensation, tenancy database and exclusion issues.
However, ‘urgent’ does not mean that QCAT will treat the matter as urgent in the normal sense of the word. ‘Urgent’ matters can proceed to QCAT directly without dispute resolution via the RTA. The application will be given priority and listed promptly but not ‘urgently’.
Why is it taking so long to hear my urgent matter?
Remember, even if your dispute is classed as urgent under the Act, the tribunal must then prioritise the urgency of matters within that category. Think of it as the emergency room for tenancy complaints – all of the disputes are important, but need to be prioritised. For example, a domestic violence issue poses a more immediate threat than abandoned premises.
How do I make an application about an urgent matter?
You can use form 2 Application for minor civil dispute – residential tenancy dispute and select the urgent application option. You will need to identify why it is urgent on pages 7 and 8.
Will I get a fair go?
QCAT does not favour either group in residential tenancy disputes. The tribunal is obliged to provide a fair hearing to all parties and will provide the opportunity for all parties to have their say. Whether your matter is urgent or not, evidence is the key!
Can non-urgent claims be decided as part of an urgent application?
The lessor (Big 4) made an urgent application for a termination order for failure to leave, an application deemed urgent under the Residential Tenancies and Rooming Accommodation Act 2008. As part of the application, the lessor also asked for the bond to be released to cover expenses for rent arrears, electricity and gas.
The Tribunal had to decide whether it could make an order to release the bond as part of the application to terminate the tenancy. This meant considering whether the Tribunal can decide ‘non-urgent’ claims as part of an ‘urgent’ application.
Despite the lessor providing evidence that the tenant owed money when the agreement was terminated, the tribunal handed down a decision confirming that legislation requires non-urgent claims to be brought as a separate application from an urgent application. This is because the Act clearly distinguishes the process for urgent applications and non-urgent application.
Legislation (section 416 of the Act) requires lessors and tenants to attempt to conciliate non-urgent claims before applying to the Tribunal through the Residential Tenancies Authority (RTA).
Because the application was urgent, the parties were not required to attend conciliation. Therefore, the Tribunal did not have jurisdiction to decide the non-urgent claims as part of the urgent application as there had been no attempt to resolve the non-urgent issues through the RTA.
The decision confirms that both lessors and tenants need to ensure they attempt conciliation of non-urgent issues through the RTA’s Dispute Resolution Service before bringing an application to QCAT.
These case studies provide general information and examples only. If you are unsure about your legal rights you should get legal advice.