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Tenancy rights and responsibilities during a natural disaster

In times of natural disaster, housing is always one of the biggest issues facing a community. With around one third of Queenslanders renting their home, it is important that all people landlords and tenants understand what options are available to them.

This information supplied by Queensland’s Residential Authority explains the rights and responsibilities of all parties during a natural disaster.

The RTA fact sheet Important renting information for natural disaster victims will answer some tenancy questions, however the RTA has also compiled a list of commonly asked tenancy questions during times of natural disaster.
Does the tenancy agreement end during a natural disaster?
The tenancy agreement does not automatically end during a natural disaster, even if the premises is totally destroyed. A tenancy agreement will only end if one of the parties (tenant or lessor/agent) has taken action to end it.

The action could be the lessor/agent giving the tenant a Notice to Leave (Form 12), or a tenant giving the lessor/agent a Notice of Intention to Leave (Form 13). These forms can only be given in certain circumstances.

The premises is totally non-liveable and I need to end the tenancy agreement. How is this done?
Where the premises is considered non-liveable, either the lessor/agent or the tenant can give a notice formally ending the tenancy on the grounds that it is non-liveable. This will end the tenancy agreement on the same day the notice is served, but you must give the notice within one month of the disaster that made the premises non-liveable.

The forms that must be used are:

  for a tenant to give to a lessor/agent, a Notice of Intention to Leave (Form 13)

  for a lessor/agent to give to a tenant, a Notice to Leave (Form 12)  Once the correct form has been given ending the agreement for non-liveability, the agreement is ended and the obligation for the tenant to pay rent is stopped.

What is a “non-liveable” property?
Non-liveability is when the premises:

  • has been destroyed, or made completely or partly unfit to live in, for reasons other than a breach by the tenant or lessor/agent, or
  • the premises can no longer be used lawfully as a residence.

Where tenants have been ordered to evacuate their rental property, such as by emergency services, it may or may not be due to non-liveability as the premises may or may not be damaged and the tenant may be able to return to the property after evacuation. This will need to be discussed between the tenant and their lessor/agent. In such circumstances the parties may be best negotiating possible rent reductions, rather than ending the tenancy.

When are premises considered non-liveable?
Each situation needs to be considered on a case-by-case basis. The premises may be considered non-liveable when occupation became unsafe for health and safety reasons, or were not able to be occupied.

The parties should also consider what outcome they’re after, for example does a tenant wish to end the tenancy and leave or stay but negotiate some rent relief?

What if the parties cannot agree on whether the premises is or isn’t non-liveable?
Sometimes, the parties might not agree on whether the premises is liveable or not, particularly if there are no other housing options available at that time.

If the tenant believes the premises is still liveable and wants to stay but has been given a Notice to Leave (Form 12) by the lessor/agent, the tenant can dispute the notice by lodging a Dispute Resolution Request (Form 16) with the RTA.

The same applies to a lessor/agent who believes the premises is still liveable where the tenant does not and has given them a Notice of Intention to Leave (Form 13).
If you are having trouble accessing a computer to download the form, the RTA may be able to assist on 1300 366 311.

Do tenants have to pay rent when they’ve been evacuated?
This would need to be considered on a case by case basis, and depends on a number of factors, such as whether or not the premises is non-liveable. The best solution is for the lessor/agent and tenant to come to an agreement about the future of the tenancy and rent payment arrangements such as rent reductions.

If the lessor/agent and tenant are unable to come to an agreement, the RTA can provide a free dispute resolution service to help the parties reach an agreement.

Can the rent be reduced?
If the lessor/agent and tenant come to an agreement to reduce the rent during evacuation, or for the period the property is damaged, the agreement should be put in writing.

Should the property be damaged or partially damaged, then the tenant and lessor/agent may be able to come to an agreement regarding a reduction in rent until the premises are returned to the condition prior to the disaster occurring. Again, any agreement should be put in writing and signed by all parties.

If an agreement cannot be reached between the parties about a rent decrease, or the amount of decrease, then the RTA’s Dispute Resolution Service may be able to assist.

Can the lessor/agent put the rent up?
Queensland tenancy law sets out when and how rent can be increased. Two months notice of a rent increase must be given to a tenant, and it must have been at least six months since the last rent increase. The rent cannot be increased during a fixed term agreement unless the tenancy agreement already allows for it.

If the tenant believes a rent increase is excessive, either during a tenancy agreement or between successive fixed tenancy agreements, they can dispute it.

If the lessor/agent and tenant decide to end the agreement for non-liveability and then start a new tenancy agreement some time later after the premises is fixed, a new tenancy agreement may include a higher rate of rent.

Can a tenant be evicted to make way for another who will pay higher rent?
It is an offence to evict a tenant in a way that does not comply with the Act. If the lessor/agent and tenant do not agree about the ending of an agreement, the RTA’s free Dispute Resolution Service may be able to assist.

I have recently lodged a bond with the RTA. What will happen to the bond receipt?
The RTA is processing bond lodgements as normal and sending out mail through the normal channels. Australia Post will hold mail in flood affected areas, and distribute it when they are able to.

I’m trying to get my bond back, but the mail has been stopped in my area. What do I do?
For disputed bonds, the RTA has put a hold on all deadlines for Notices of Claim and Notices of Unresolved Dispute in flood affected areas from 20 December 2010, to ensure flood victims are not unfairly disadvantaged by the disruption in mail services. Bond money for disputed bonds in flood affected areas will not be released until mid-January or so, depending on the flood situation. The RTA will continue to monitor the situation and respond as appropriate.

If the lessor/agent and tenant had previously disagreed on how the bond should be refunded but have since come to an agreement, they should contact the RTA and the bond will be released in accordance with normal practices.

If the lessor/agent and tenant had agreed on how the bond should be refunded, the bond will be refunded as normal. In such situations, it is even more important to have bonds refunded automatically, and not by cheque.

Source: Queensland Residential Tenancy Authority



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Michael is a director of Metropole Property Strategists who help their clients grow, protect and pass on their wealth through independent, unbiased property advice and advocacy. He's once again been voted Australia's leading property investment adviser and his opinions are regularly featured in the media. Visit Metropole.com.au


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