QCAT Update: Residential Tenancy Dispute on Appeal

In this article, we consider a recent decision of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, which provides property managers with some useful information regarding the interpretation of section 277 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act).

Blink Property Qld v Christison & Anor [2024] QCATA 61

The tenants (the respondents) of the subject property were in a fixed term tenancy agreement that commenced on 5 May 2022 and expired 2 November 2022.

On 10 October 2022, the property manager (the appellant) issued a Form 12 Notice to Leave to the tenants for the end of the fixed term tenancy agreement, with a handover date of 10 December 2022.

In anticipation of the tenancy being renewed for a further six-month fixed term, the property manager issued a second Form 12 Notice to Leave on 10 October 2022, with a handover date of 3 May 2023.

The tenants maintained that they received both Form 12s at the same time along with a new six-month fixed term tenancy agreement to commence on 3 November 2022 and end on 3 May 2023.

While the tenants signed the new six-month fixed term tenancy agreement, they subsequently issued a Form 13 Notice of Intention to Leave with 2 weeks’ notice expiring on 25 November 2022, and vacated the property.

After finding it difficult to relet the property, the lessor took the property off the market and the property manager (as agent for the lessor) proceeded to apply to the Tribunal for unpaid rent of $4,800 as well as additional amounts for advertising, carpet cleaning, rubbish removal and general cleaning.

At the initial Tribunal hearing, the Adjudicator rejected the claim and awarded compensation to the property managers (as agent for the lessor) limited to $971.42 for unpaid rent from 9 November 2022 to 25 November 2022.

The property manager (the appellant) appealed that decision submitting that:

“The tenant broke the lease and should pay the break lease rent arrears up until the property was taken off the market.” [1]

The Appeal Tribunal, noting that self-represented parties often find it difficult to articulate their argument in legal terms,[2] considered the property managers argument in the following terms:

“…that the learned Adjudicator erred in finding an implicit entitlement in the respondent tenants to terminate the new fixed term tenancy agreement at any time on issue of a Form 13 Notice of Intention to Leave given a Form 12 Notice to Leave had been issued at the start of the tenancy.”[3]

In his reasons for decision the Adjudicator held that by issuing a Form 12 at the start of a fixed term tenancy, if a tenant then decides to leave for whatever reason, the tenancy agreement ends on the date the tenant decides to leave because they have been issued the Form 12. The Adjudicator considered that this is the intention of section 277(b) of the RTRA Act.[4]

Section 277(b) of the RTRA Act provides that a tenancy agreement ends on or after the handover day stated in the Form 12.

The Appeal Tribunal found that there is no implication that “…by use of these words that the tenancy agreement may, if the tenant issues a Form 13 Notice of Intention to Leave, end before the handover date stated in the lessor’s Form 12 Notice to Leave”.[5] The Appeal Tribunal added that the words in section 277(b) of the RTRA Act “seem quite clear.”[6]

The Appeal Tribunal held that while the tenants’ Form 13 was effective in ending the tenancy agreement in accordance with section 277(c) of the RTRA Act, the Adjudicator should have continued to determine “whether or not break lease compensation thereafter became payable”.

Importantly, the Appeal Tribunal stated that:

“I cannot see that the issue of a Form 12 Notice to Leave at the start of the tenancy, with the handover date nominated as the end of the fixed term, has any bearing on that. There is no reasonable implication by service of such notice that the lessor invites or has no objection to the tenant vacating any earlier than the handover date noted in the Form 12 Notice to Leave, which is the end date of the fixed term.”[7]

In the circumstances, the Appeal Tribunal held that there was an error of law made by the learned Adjudicator. The Appeal Tribunal granted leave to appeal, allowed the appeal, and returned the matter to the Tribunal to be determined by another Adjudicator.

Conclusion

This appeal decision is a timely reminder for property managers to ensure that they are familiar with the RTRA Act, in particular the provisions that may lead to residential tenancy claims in the Tribunal.

Whilst all parties involved in residential tenancy disputes before the Tribunal 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 RTRA Act or any other relevant legislation, it is strongly recommended that they seek legal advice.

Read another property management article from the REIQ: Minimum Housing Standards - Are you prepared?

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