TENANCY TERMS – WHAT IS PERMITTED?

In 2013, an agent was fined for their use of special terms on tenancy agreement, which were deemed to have contracted out of the RTRA Act. The following is an excerpt from the RTA’s Newsletter Open House, April/May 2013 edition.
“Directors of a Brisbane real estate agency have been fined $4,200 each after pleading guilty to charges of including unlawful special terms in tenancy agreements.
The series of illegal special terms used by the agency contravened the Residential Tenancies and Rooming Accommodation Act 2008 (the Act). The illegal terms included requiring the tenant to agree to:
• the agent holding open houses in the rented property
• the agent entering the property without notice at the end of a tenancy
• have carpets shampooed every 6 months
• pay for repairs and maintenance which could generally be considered fair wear and tear
• give 6 weeks notice of their intention to end the tenancy, instead of the required 2 weeks notice
All these terms are an offense under Queensland tenancy laws. The agency also included terms in the rental contracts which allowed rent to be increased during a fixed term tenancy at the discretion of the lessor. They also imposed set fees on tenants for re-letting and adverting costs. The illegal terms reduced lessors’ obligations to mitigate their loss if a tenant ended a fixed term tenancy early and they reduced the lessors’ maintenance obligations.”
(Source for the above: https://www.rta.qld.gov.au/…/Ope…/Past-editions/Apr-May-2013)
Tenancy agreements in Queensland contain 44 standard terms, as per the RTRA Regulation. Tenancy agreements can contain terms in addition to the 44 standard terms, which are the special terms. With respect to the Legal Profession Act, these special terms should not be authored by the property manager, but should be provided to the agent – either by the client, or by a lawyer.
When adding tenancy terms, it is important to ensure that these special terms do not contract out of the RTRA Act. What that means is, we must avoid creating a situation where a special term added to an agreement conflicts with one of the 44 standard terms, or the RTRA Act. If this does happen, the special term in question will not override the standard terms or the RTRA Act, even if the tenant has signed the agreement containing that particular special term. Essentially, lessors and tenants cannot change Queensland legislation through their use of special terms. Special terms can be used to establish an agreement between a lessor and tenant where the RTRA Act is silent or allows the parties to reach agreement – such as who will pay for electricity, or pest control, or what constitutes a ‘reasonable’ quantity of water for this particular tenancy. Special terms cannot be used to establish an agreement that changes what the RTRA Act does state – for example imposing a requirement on a tenant to give 4 weeks notice before the end of their tenancy when the Act says 2 weeks, or including a term that requires a tenant to agree to amended rules of entry compared to those contained in the RTRA Act. A person must not enter into an agreement or arrangement with the intention of defeating, evading or preventing the operation of the RTRA Act. (Maximum 50 penalty units) An agent cannot obey unlawful instructions from the client, and might decide to seek independent legal advice before taking client instructions to add special terms to an agreement for a tenancy they are managing. Red flag areas might include:
• Terms that reduce or remove the lessor’s obligation to keep the premises and its inclusions in a good state of repair during a tenancy
• Terms that allow the lessor/agent entry to the premises more frequently, or with less notice, than the Act requires
• Terms that require a tenant to use a particular company for services such as carpet cleaning
• Terms that allow rent increases to occur in a manner that is not consistent with the provisions of the RTRA Act, such as more frequently than 6 monthly, or where the tenant
is required to agree in advance to an unspecified rent increase that will happen during a fixed term
• Terms that shorten or lengthen the time frames contained in the Act regarding notice the parties must give to end the tenancy agreement
• Terms that require a tenant to pay for water in a way or circumstance not permitted under the Act, such as if the property is not either individually metered or has water delivered by vehicle
• Terms that require the tenant to effectively pay more than the maximum bond, even if the amount is called something other than bond
• Terms where the tenant agrees that the lessor/agent does not have to lodge the bond with the RTA
• Terms where the tenant pre-authoriszes a bond claim for the end of the tenancy
• Terms that require the tenant to sign away their rights under the Act, or that require a tenant to accept responsibilities that actually belong to the lessor under the Act. Of course, inherent in all of this is that an agent should take care not to act unconscionably by taking advantage of a person’s lesser knowledge or vulnerability. A new tenant who is trying their utmost to be cooperative in order to secure housing, and who is perhaps not as well versed in tenancy legislation as their agent, might inadvertently sign an agreement containing terms that would be deemed contracting out of the Act. An agreement or arrangement is void to the extent that it excludes, changes, or restricts the Act. Property Managers should refer to sections 53 and 54 of the RTRA Act.

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