I often hear landlords say, “let’s get them out.” Landlords can’t just evict a tenant whenever they feel like it. Tenants have rights, and they are protected by legislation. Of course, landlords have rights to by the same legislation. A particular legal process needs to be followed. The Residential Tenancies and Rooming Accommodation Act 2008 can only end tenancies.
A STEP-BY-STEP GUIDE: HOW TO EVICT A TENANT LEGAL IN QUEENSLAND, AUSTRALIA?
UPDATE: CORONAS PANDEMIC & EVICTING A TENANT.
The federal government has announced that no residential tenant can be evicted for nonpayment of rent for six months. Tenants need to realise this does not mean rent is free.
Simple: it’s payable at a later date. You can read more about this in my other article here. While tenants can’t be evicted for nonpayment of rent, a notice to leave can be issued for any other reason, for example, if a lease is coming to an end. RTA has stated that at the time of writing, the only change to legislation is the noneviction to nonpayment of rent. Other than that, it’s business as usual.
WHY & WHEN TO EVICT A TENANT?
While it might be the worst-case scenario for any landlord or tenant out there, there might still arise an instance in which the landlord is bound to evict a particular tenant from the rental property. There are several reasons why a landlord might consider evicting tenants in Qld. However, in most common cases, the primary reason for the eviction is due to the violation or breaching of the specific terms & conditions of the lease agreement.
If the agreement between the tenant and the landlord is not appropriately met, and the tenant does not leave on his own accord, then the landlord is compelled to take the unfortunate step of the tenant’s eviction. While doing the same, it is essential to refer to the state’s residential tenancy authority or body before evicting the tenants. This is because, in Australia, eviction rules for tenants tend to vary from state to state. You can read about this on the Qld Residential Tenancy Authorities site here.
TOP REASONS FOR EVICTION
When you are the landlord and wish to evict your tenant, you should have a solid legal reason. Several situations could contribute to the termination of the lease agreement while providing a warrant for evicting the tenants. You can read about tenants breaching the deal here.
Here are some main reasons.
- Failing to pay the rent. (Note: due to the corona pandemic, residential tenants can’t be legally evicted for nonpayment of rent)
- Was serving as a nuisance to the neighbours.
- Late rental payments consistently. (Note: due to the corona pandemic, residential tenants can’t be legally evicted for nonpayment of rent)
- Significant damage was caused to the landlord’s property.
- We are utilising the property for illegal purposes – like drug manufacturing.
- Breaching any other primary obligation as mentioned in the rental agreement.
- Non-approved pets at the property.
- Pets approved outside found inside.
- Non-approved people are staying at the property.
ISSUING NOTICES TO THE TENANTS
Before you evict a tenant from your property for any legal reason, you must deliver the proper legal notice to them. In Qld, this is called a Form 11 notice to remedy the breach. When completing a Form 11, you must meet it by the date the breach needs to be rectified. It’s also essential that the time frame is within the legislation. For example, regarding nonpayment of rent, the legislation gives the tenants seven days to get paid up to date. But for example, if a tenant has damaged walls, you may wish to provide four weeks to rectify this so they have time to attend to it.
EVICTING THE TENANT FROM YOUR PROPERTY
Once a Form 11 has been issued. The tenant now has time to rectify the breach within the allocated time frame. If they do, the tenant can’t be evicted. If they don’t the landlord or property manager needs to issue a Form 12 Notice to leave. When you are evicting the tenants from the property, it is crucial that you are following the right steps. If the tenant wishes to dispute this they can do so through the RTA and mediation.
LET’S START WITH THE SIMPLEST FIRST
Form 12 is the official Notice to leave that the landlord needs to send the tenant. It’s a simple, accessible form to fill out, showing the official time frames that apply to the right circumstances. You can read about it and access the official Form 12 here. The RTA has a helpful page about ending a tenancy agreement here.
PERIODIC LEASE
I wouldn’t say I like periodic leases because tenants can give two weeks’ Notice and leave. If they do, it’s a scramble to find a suitable tenant in that time frame.
Now, if you are a landlord in Qld that’s wealthy, you may be able to afford to have the property empty, but my experience is even rich people prefer rental income coming in.
But this is all about how the landlords can evict a tenant in Qld, so here is the shocker. If a tenant is on a periodic lease, the landlord must give the tenant two months’ Notice. Yes, 2 Months. So the tenant can provide the landlord with just two weeks, but the landlord needs to give two months. Odd, I know. The only time this is less is if the tenant is on a periodic lease and the property sells. Then the landlord can give them 30 days’ Notice. This, of course, is on the Sunshine Coast, Australia, in Qld. Other states might be different. You can obtain the official Notice to leave Form 12 Document here and read more about it from the RTA.
END OF LEASE
Suppose a tenant is in a lease that’s coming to an end. Guess what. They don’t automatically leave & you can’t just ask them to leave. It would help if you still gave them two months’ Notice. So yes, two months before the lease expires, you must send them a Form 12 Notice to leave. You can obtain the official Notice to vacate Form 12 Document here and read more about it from the RTA.
RENTAL ARREARS
If your tenant is seven days behind in rent, you can send them a Form 12. Follows the Legislation processes. First, you need to send them a Form 11 breach notice, and with arrears, you can only send them a breach notice once they are eight days in arrears. Yes, 8. On day 8, send them a Form 11 Notice to Remedy Breach.
They then have seven days to get their rent paid up to date. My experience is often, when they get a breach notice on day 8, it all sorts out. But if it is within seven days, you can send them a Form 12 notice to leave. They are giving them seven days to vacate.
So if a tenant is behind in rent, you are exposing yourself to 14 days of no rent with them in the property, which your bond or landlord insurance would cover.
ABANDONMENT FORM 15
If the landlord or property manager is mainly if the tenant has abandoned the property and not just on an extended holiday, the landlord or property manager can issue the tenant with a form 15 Abandonment. Prior you should use a form 9 Entry notice to look inside first. Form 15 must be sent to the tenant’s residential address, place of business, and email. They have seven days to apply to QCAT if they disagree.
MORTGAGE IN POSSESSION FORM 19
Notice to vacate from mortgagee to tenant. If the bank takes over ownership, they kick the tenant out with two months’ notice. Very little fun for anyone involved.
NON LIVEABLE DWELLING
This is also a form 12 notice to leave. We had this recently where a property had termites, and a large section of the house. It was unsafe, so tenant eviction took place. You can read more about it on the RTA site here.
REPEATED BREACHES
If you provide your tenant with multiple general breaches, such as having an unapproved occupant stay or the place needs to be cleaner. Then yes, you can send them a notice to leave.
FAILURE TO LEAVE
So the official date has arrived. You can’t contact the tenant, so you use the Form 9 entry notice and find they are still there. They have not moved. Not interested in moving. Yikes. That’s awkward, so what now? Police? Heavies? No, of course, not silly. You need to now make an URGENT claim with QCat.
URGENT QCAT CLAIM
I recommend leading up to the eviction date, have your QCat claim ready to lodge so you can do that day. A lawsuit takes hours to prepare. It would help if you had copies of the lease, breach notices, entry condition reports, routine inspection reports, email correspondence, and everything you have for your case. Then you need four copies. The QCAT site is a crazy place, so I will give you the link to get straight to the form you need; you can access QCat Form 2 here.
QCAT SITE
The Qcat site talks about urgent and nonurgent claims and will put your head in a spin. A tenant who does not vacate on the vacate date is a critical Qcat claim. You will need to attend the closest court to the property to lodge your claim. When you give them the four copies, ask them to check for any errors; they will stamp them; you’ll pay a small fee and leave. Then in about 14 days, they will write to you with a court hearing date, which could be weeks away. Yes, this is for urgent claims. Scary stuff, I know. They will also write to the tenant.
On the court date, if you win, which you should, the court will order the tenant to vacate within a specific time frame. But guess what. They might not even do that, so on the date the tenant receives the order to go, take your local police with you and a locksmith so you can enter the property and change the locks. I would suggest you read more about QCat disputes in general here.
BREACH OF AGREEMENT
- Either party can end the agreement if the other party does not remedy a breach after following the Notice to remedy breach (Form 11) process.
- The lessor/agent must give seven days’ Notice to leave for rent arrears or 14 days’ Notice to leave for general breaches. The tenant must provide seven days’ Notice of their intention to leave.
TERMINATIONS BY TRIBUNAL
The lessor, agent, or tenant can apply straight to the Tribunal for a decision about when a tenancy agreement should end, but only for specific reasons and after the correct eviction process has been followed to evict a tenant. These are urgent applications, and the grounds include the following:
- Failure to leave – if the tenant hasn’t left the property by the due date on the Notice.
- Hardship – if either party believes they would suffer excessive hardship.
- Damage or injury – if the tenant has damaged the premises or injured people.
- Objectionable behaviour – if the tenant uses verbal abuse, harassment or causes a serious nuisance, and
- Repeated breaches – for repeating a serious breach more than twice in one year, even though the breach fixes each time.
If you would like to speak to an experienced property manager on the Sunshine Coast about evicting a tenant or managing your investment property for you, then contact us today.
OTHER ARTICLES THAT YOU MAY FIND HELPFUL ARE:
12 Things to Look for Hiring a Best Property Managers Sunshine Coast in Australia
10 Things Asset Agents Does Differently to Other Property Managers on the Sunshine Coast
Costs of Buying an Investment Property Exposed
Preparing Your Investment Property to be Tenanted
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