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 too by the same legislation. A certain legal process needs to be followed. Tenancies can only be ended in accordance with the Residential Tenancies and Rooming Accommodation Act 2008.
A STEP-BY-STEP GUIDE: HOW TO EVICT A TENANT IS LEGALLY IN QUEENSLAND AUSTRALIA?
UPDATE: CORONAS PANDEMIC & EVICTING A TENANT.
The federal government has announced that for a period of 6 months, no residential tenant can be evicted for non-payment of rent. It’s important for tenants 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 non-payment 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 TENANTS?
While it might turn out to be the worst-case scenario for any landlord or tenant out there, still there might arise an instance in which the landlord is bound to evict a particular tenant from the rental property. There are several reasons for which a landlord might consider evicting tenants in Qld. However, in most common cases, the major reason for the eviction is due to the violation or breaching of the specific terms & conditions of the lease agreement. In case the agreement between the tenant and the landlord is not met properly, and the tenant does not leave on one’s own accord, then the landlord is compelled to take the unfortunate step of the tenant’s eviction. While doing the same, it is important to refer to the residential tenancy authority or body of the state before evicting the tenants. This is because, in Australia, eviction rules for the tenants tend to vary from one state to another. 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 strong legal reason for doing so. There are several situations that could contribute to the termination of the lease agreement while providing a warrant for evicting the tenants. You can read about tenants breaching the agreement here. Here are some of the main reasons.
- Failing to pay the rent ( Note due to the corona pandemic, residential tenants can’t be legally evicted for non payment of rent )
- Serving as a nuisance to the neighbors.
- Late rental payments on a consistent basis. ( Note due to the corona pandemic, residential tenants can’t be legally evicted for non payment of rent )
- Major damage caused to the landlord’s property.
- Utilizing the property for illegal purposes –like drug manufacturing.
- Breaching any other major obligation as mentioned in the rental agreement.
- Non approved pets at the property
- Pets approved outside found inside
- Non approved people staying at the property
ISSUING NOTICES TO THE TENANTS
Before you can evict a tenant from your property for any legal reason, you are required to deliver the right legal notice to them. In Qld this is called a Form 11 notice to remedy breach. When completing a Form 11 it’s important that you complete it with the date the breach needs to be rectified by. It’s also important that the time frame is within legislation . For example nonpayment of rent, legislations gives the tenants 7 days to get paid up to date. But for example, if a tenant has damaged walls, you may wish to give the 4 weeks to have this rectified, 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.
LETS START WITH THE SIMPLEST FIRST
Form 12 is the official Notice to leave the landlord needs to send to the tenant. It’s a simple, easy form to fill out, and it shows the official time frames that apply for the correct circumstances. You can read about it and access the official Form 12 here. The RTA has a very helpful page here all about ending a tenancy agreement here & another very helpful fact sheet.
The main reason I don’t like periodic leases is tenants can give 2 weeks notice and leave. If they do, it’s a scramble to find a good tenant in that time frame. Now, if you are a landlord in Qld that’s really wealthy, you may be able to afford to have the property empty, but my experience is even really wealthy people prefer rental income coming in. But this is all about how the landlords can evict a tenant Qld, so here is the shocker. If a tenant is on a periodic lease, the landlord needs to give the tenant two months notice. Yes, 2 Months. So the tenant can give the landlord just 2 weeks , but the landlord needs to give 2 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 in 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
If 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. You still need to give them 2 months Notice. So yes, 2 months before the lease expires you need to send them a Form 12 Notice to leave. You can obtain the official Notice to leave Form 12 Document here and read more about it from the RTA.
If your tenant is 7 days behind in rent, you can’t just send them a Form 12. Legislation processes need to be followed. First, you need to send them a Form 11 breach notice, and with arrears, you can’t send them a breach notice until they are 8 days in arrears. Yes, 8. On day 8, send them a Form 11 Notice to Remedy Breach. They then have 7 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 doesn’t with 7 days, you can then send them a Form 12 notice to leave. Giving them 7 days to vacate. So if a tenant is behind in rent, you are exposing yourself to a total of 14 days of no rent with them in the property, which would be covered by your bond or landlord insurance.
ABANDONMENT FORM 15
If the landlord or property manager is certain the tenant has abandoned the property and not just on a long 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 have a look inside first. Form 15 needs to be sent to the tenant’s residential address, place of business, and email. They have 7 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 just kick the tenant out with 2 months notice. Not much 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 had to be pulled down. It was unsafe, so tenant eviction took place. You can read more about it on the RTA site here.
If you provide your tenant with multiple general breaches, for example, having an unapproved occupant stay, or the place is not clean. 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 Form 9 entry notice and find they are still there. 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 claim takes hours to prepare. You need copies of the lease, breach notices, entry condition report, routine inspections reports, email correspondence, everything you have for your case. Then you need 4 copies. The QCAT site is a crazy place, so I am going to give you the link to get straight to the form you need, you can access the Qcat Form 2 here. On the Qcat site, it 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 an urgent Qcat claim. To lodge your claim, you will need to attend the closest court to property when you give them the 4 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 under the circumstances, the court will order the tenant to vacate within a certain time frame. But guess what. They might not even do that, so on the date, the tenant receives the order to vacate takes 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 the Notice to remedy breach (Form 11) process has been followed.
- 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 give 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 certain reasons, and only after correct eviction process have been followed to evict a tenant. These are urgent applications, and reasons include:
- 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 behavior – if the tenant uses verbal abuse, harassment or causes a serious nuisance, and
- repeated breaches – for repeating a serious breach more than twice in a one year period, even though the breach fixes each time.