Landlord retaliatory actions: Broadened powers for tenants

As of 1 October 2022, residential tenants in Queensland have a broader scope to seek orders from the Queensland Civil and Administrative Tribunal (QCAT) regarding ‘retaliatory action’ by a landlord.

Prior to October 2022, tenants were only able to seek orders from QCAT for retaliation if a Notice to Leave was issued without grounds pursuant to section 291(3) of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act).

Whilst section 291(3) still remains in force, on 1 October 2022, standalone ‘retaliatory action’ sections 246A and 276A of the Act came into effect.

ACTION BY THE TENANT

Under the new standalone sections, tenants may apply to QCAT for orders to set aside the actions of an owner, if they ‘reasonably believe the action was taken to intimidate or punish them’ for:

• the tenant’s actions to enforce their rights (with a broad scope discussed below);
• the tenant complaining to an authority (such as the Residential Tenancies Authority or the Office of Fair Trading); or
• if a QCAT order is in force in relation to the owner or tenant.

The Act provides examples of actions which may be taken by a tenant to enforce their rights, including:

• issuing the owner with a notice to remedy breach;
• requesting repairs or maintenance to the property;
• requiring the owner to reimburse the tenant for emergency repairs; or
• applying to QCAT for an order under the Act.

Whilst these circumstances may not arise in every residential tenancy, they are certainly common occurrences in most property management portfolios. As such, sections 246A and 276A allow QCAT a much broader scope to set aside actions for ‘retaliation’.

Explanatory notes regarding the new sections indicate that the legislature intended these new additions to the Act to safeguard tenants’ ability to enforce their rights without fear of retaliation.

REACTION FROM THE OWNER

If a tenant has taken action as set out above, and the owner:

• issues the tenant with a notice to remedy breach (other than a notice relating to a failure to pay rent for at least 7 days);
• increases the rent payable under the tenancy agreement;
• takes action to end the tenancy agreement; or
• refuses to renew the tenancy at the end of the current agreement

then the act of the owner may be considered as ‘retaliation’ for the tenant’s actions.

QCAT’S POWER

If an action taken by the tenant is met by a relevant reaction from the owner, then the tenant may apply to QCAT, on an urgent basis, for an order to set aside the owner’s actions if they reasonably believe the action was taken to ‘intimidate or punish’.

The application by the tenant must be made within 1 month of them becoming aware of the owner’s action.

If QCAT considers the owner’s actions were likely to have been taken to intimidate or punish the tenant, it may make orders to set aside the owner’s actions. In considering the circumstances, QCAT need not be concerned whether the tenant was actually intimidated, or suffered a punishment, nor whether the owner was convicted or found guilty of an offence against the Act.

RETALIATION

The Act does not define retaliation, nor does it provide commentary on what may amount to intimidation or punishment by an owner.

At the time of writing, QCAT has not yet published any decisions considering the new sections.

However, the QCAT Appeals Tribunal has previously considered what it meant to ‘retaliate’ in the decision of De Bruyne v Ray White Waterford [1] pursuant to section 291(3) of the Act. In that instance, a tenant alleged that a Notice to Leave had been issued in retaliation, only 2 days after the tenant had raised complaints about the state of the property.

The QCAT Appeals Tribunal held that the meaning of the word ‘retaliate’, needed to be derived from ordinary language, a dictionary definition of which would read ‘to return like for like (especially for harm done)’ or to ‘repay injury, insult etc.’.

In De Bruyne, the Appeals Tribunal considered that whilst there was a history of tension between the parties, it did not necessarily follow that the owner’s actions deserved to be described as retaliatory. It noted that a degree of unhappiness with a tenant does not by that very fact prove retaliation.

The Appeal Tribunal also referred to an earlier decision of Du Preez v Linda Homes Pty Ltd [2], which provides:

“Section 291(3) requires careful consideration of the particular circumstances in each case in which it is raised. If ‘retaliatory‘ is considered too broadly, almost any complaint by a tenant to an agent or landlord, or even a less than amicable exchange between them, might qualify…it is improbable that the legislature intended that effect. Rather, the section appears to be designed to protect the tenant who has justifiably taken action…and is then served with a Notice which is apparently responsive to the tenant’s act, but also…unreasonable, excessive or vindictive.

In each case the decision maker is required to consider the particular facts and circumstances which arise and determine whether or not they can fairly be categorised as falling within the section.

”In De Bruyne, the Appeals Tribunal took into consideration that whilst the owner of the property could have issued Notices to Remedy Breach/Notice to Leave, it chose to issue a Notice to Leave only at the end of the tenancy, therefore choosing ‘the path of peace’. Accordingly, the Appeals Tribunal upheld that the owner was not taking retaliatory action, and leave to appeal was dismissed on that occasion.

CONCLUSION

Time will tell how the new sections regarding retaliatory action (sections 246A and 276A) will be considered by QCAT. However, the decision of De Bruyne v Ray White Waterford [3] is an important decision for property managers and owners to be aware of when responding to applications pursuant to the new sections.

Property Managers and owners must also consider that section 291(3) of the Act still remains in force, and the new sections do not amount to the only form of retaliatory action that can be considered by QCAT.

In any event, De Bruyne sets an important precedent that an owner exercising their own rights against an unhappy tenant does not equate to a retaliatory action in every event.

Whilst all parties involved in residential tenancy disputes before QCAT must represent themselves (some exceptions apply), they are, of course, always able to seek legal advice in regard to all aspects of a dispute. If property managers have any concerns about a residential tenancy dispute, including compliance with the Act and any other relevant legislation, it is strongly recommended that they seek legal advice.

References

[1] [2020] QCATA 113.

[2] [2010] QCATA 2.

[3] [2020] QCATA 113.

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