The purpose of this article is to alert all property owners to recent changes to Queensland legislation relevant to residential leases, which will impact profoundly on owners, especially owner investors who have rental properties within body corporate complexes, which are managed either privately or through a letting agent/property manager.
The Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 released on 24 April 2020, contains temporary amendments to the Residential Tenancies and Rooming Accommodation Act 2008 to support sustainable tenancies in the residential rental sector during the COVID-19 pandemic.
The Regulation is specifically directed at ensuring persons/tenants suffering excessive hardship because of the COVID-19 emergency are not evicted for failure to pay rent as required under a residential tenancy agreement if the failure relates to the tenant suffering excessive hardship because of the COVID-19 emergency.
A person is deemed to be suffering excessive hardship if any of the following apply:
- the person, or another person under the person’s care, suffers from COVID-19;
- the person is subject to a quarantine direction;
- the person’s place of employment is closed, or the trade or business conducted by the person’s employer is restricted, because of a public health direction, including, for example, because a public health direction has closed a major supplier or customer of the person’s employer;
- the person is self-isolating because the person is a vulnerable person, lives with a vulnerable person or is the primary carer for a vulnerable person;
- a restriction on travel, imposed under a public health direction or other law, prevents the person working or returning home;
- the COVID-19 emergency prevents the person leaving or returning to Australia; and
- suffers a loss of income of 25% or more; OR
- the rent payable by the person under a residential tenancy agreement or rooming accommodation agreement is 30% or more of the person’s income.
The prohibition on the eviction of a tenant for failure to pay rent shall apply between 29 March 2020 and the earlier of the either 29 September 2020 or the last day of the COVID-19 emergency period (the relevant period).
For the purpose of the Regulation, the term evict means to cause the tenant to vacate the premises by any of the following actions:
- coercing a tenant into agreeing to end a residential tenancy agreement;
- preventing a tenant from freely accessing the premises, including, for example, by changing the locks;
- causing the tenant to vacate the premises because of false or misleading information given to the tenant;
- causing the tenant to vacate the premises because of acts of intimidation.
Evidence of suffering excessive hardship because of COVID-19 emergency
If a tenant/resident claims to be, or to have been, suffering excessive hardship because of the COVID-19 emergency, the lessor/agent may require evidence from the tenant/resident to support the claim that he/she is suffering excessive hardship because of the COVID-19 emergency.
Examples of evidence supporting claim include a separation certificate from an employer, a confirmation letter from Centrelink or a medical certificate.
Other key features of the Regulation include:
- Fixed term agreements due to expire during the COVID-19 pandemic must be extended to 30 September 2020 unless the tenant requests a shorter term.
- Any agreement to vary rental arrangements should be put in writing.
- If an agreement cannot be reached, the parties are required to undertake conciliation to resolve disputes. The RTA has advised that it has strengthened its dispute resolution capacity to accommodate the introduction of mandatory conciliation for tenancies impacted by COVID-19.
- If rent arrears are not caused by financial distress due to the impacts of COVID-19, you should follow the normal breach processes for rent arrears.
- Tenants may refuse physical entry for non-essential reasons, including routine repairs and inspections, particularly if:
- a person at the premises is unwell, self-isolating or subject to a quarantine direction;
- the tenant or a member of the household is a vulnerable person.
- Property owners and managers may enter the property in emergencies to protect the property from imminent or further damage, to conduct essential repairs and comply with existing regulatory obligations that ensure tenant safety, such as maintaining smoke alarms, BUT social distancing rules must be observed.
- The freeze on evictions due to rent arrears caused by financial distress due to the impacts of COVID-19 is effective from 29 March 2020. A notice to leave issued before this date, in the correct form, will still apply.
- If your tenant raises concerns about challenges they will face to comply with the notice to leave, try to understand each other’s circumstances and develop an acceptable solution. The RTA conciliation service may be able to help you reach an agreement or formalise an agreement you are able to make with your tenant.
This article contains general information only. It seeks to summarise the key features of a lengthy piece of legislation. If the letting of your property is managed by a letting agent/property manager, they should be able to provide answers to most of the questions you may have. If you personally manage the letting of your property, you may direct your enquiries to the Residential Tenancies Authority (RTA): Phone 1300 366 311.
A further source of information for all owners is the Queensland Government’s Residential Rental Hub at www.covid19.qld.gov.au/the-hub.
It is important to comply with the legislation as substantial penalties apply.
The non-payment of rent by tenants may well impact on the ability of many owners to meet their financial obligations, including mortgage repayments and the payment of body corporate levies. Owners so impacted are urged to contact, as a matter of urgency, their banks/lenders in relation mortgage repayments and their Body Corporate Manager or the Secretary of the Body Corporate Committee where a Body Corporate Manager has not been appointed.