Residential Tenancies and Rooming Accommodation Act 2008

The Act affects tenants, residents, lessors, providers, agents for residential tenancies and rooming accommodation, mortgagees of residential premises, persons appointed under a mortgage to take possession (the "appointed person" in section 317), authorised persons exercising powers under chapter 7, the Residential Tenancies Authority, the chief executive of the department in which the Housing Act 2003 is administered (where the State is the lessor for State housing), community housing providers, and the Queensland Civil and Administrative Tribunal (QCAT) which hears applications under chapter 6. It also affects body corporate stakeholders for premises subject to community titles schemes, given the cross-references to the Body Corporate and Community Management Act 1997.

Lessor obligations include providing premises in compliance with prescribed minimum housing standards, complying with the lessor's right of entry rules in chapter 3 part 3, complying with the rent-increase notice machinery in section 91, complying with the rental bond rules in chapter 2 part 3 (including lodgement and limit-on-amount provisions), complying with the prohibition on retaliation in chapter 3 part 8 (and the parallel chapter 4 part 4 for rooming accommodation), and complying with the lessor disclosure rules.

Tenant obligations include paying rent in accordance with the agreement, complying with the agreement, not using the premises for an illegal purpose, allowing the lessor to enter the premises in accordance with chapter 3 part 3, returning the premises in the prescribed condition at the end of the tenancy, and following the dispute-resolution path under chapter 6 before applying to QCAT (with limited exceptions).

Mortgagee obligations are more specific. Under section 317, where residential premises are subject to a mortgage, a residential tenancy agreement has been entered into after the mortgage was registered, the mortgagee did not consent to the tenancy, and the mortgagee or an appointed person has become entitled to obtain possession of the premises, the mortgagee or appointed person "must not obtain possession of the premises unless, at least 2 months before obtaining possession, the mortgagee or the appointed person gives the tenant notice in the approved form informing the tenant that possession is to be obtained" (section 317(2)). Breach attracts a maximum penalty of 50 penalty units (section 317(2) and (3)).

For rooming accommodation, providers must comply with chapter 4 obligations including providing house rules under chapter 4 part 3 and respecting the limited entry rights in chapter 4 part 2.

The Residential Tenancies Authority (the authority), established by chapter 10 part 1, has the functions and powers in chapter 10 part 2, including conciliation of residential tenancy disputes and rooming accommodation disputes under chapter 6 part 1 and management of rental bonds. The board of the authority is established under chapter 10 part 3, and the chief executive officer is appointed under chapter 10 part 7. The employing office is established under chapter 11 part 1, headed by the executive officer under chapter 11 part 2 with staff under chapter 11 part 3.

Authorised persons are appointed under chapter 7 part 1 and have the entry, search and information-gathering powers in chapter 7 part 2. Other enforcement matters sit in chapter 7 part 3.

QCAT has jurisdiction under chapter 6 part 2 to hear and determine applications, including applications about rent increases under section 92, applications for termination orders, applications about rental bonds, and applications under specific provisions including section 95 (reduction of rent for an emergency), section 173 (compensation for outgoings) and section 277 (ending of agreements). The lessor and tenant may agree, in a separate written document, to end a residential tenancy agreement (section 277(a)), and a residential tenancy agreement otherwise ends in the closed list of ways set out in section 277.

Discretions on rent increases sit primarily with the lessor (section 91), subject to the time and minimum-period restrictions in section 91(4) and section 93. The tenant may apply to QCAT under section 92 if the increase is excessive.

The Act contains hundreds of maximum-penalty provisions tied to specific obligations. Many sit at 50 penalty units (for example section 317), 30 penalty units, 20 penalty units or, for less serious obligations, lower amounts. The chapter 12 part 4 offence of giving false or misleading documents to the authority is the principal stand-alone offence in the institutional chapters.

Civil enforcement runs through QCAT under chapter 6 part 2. Applications include termination orders under chapter 5 (residential tenancies) or the parallel ending provisions for rooming accommodation, compensation orders, rent-payment orders, and orders dealing with rental bond claims. Conciliation under chapter 6 part 1 is, in most cases, a precondition to a QCAT application.

The interaction with mortgagee enforcement is structurally important. As Logan J observed in Australia and New Zealand Banking Group Limited v State of Queensland [2018] FCA 464, when a mortgagee obtains a vesting order under section 133(9) of the Bankruptcy Act 1966 (Cth) following a trustee's disclaimer of bankrupt land, the order is typically expressed to dispense the mortgagee from serving "a notice to vacate, under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)". That practice has developed because, absent such conditions, the mortgagee would otherwise need to comply with the section 317 two-month notice and subsequent ending procedures before recovering possession of property occupied by a tenant.

Rent increase notice timelines sit in section 91. The lessor must give written notice in the approved form, stating the amount of the increased rent, the day from when the increased rent is payable, and the day the rent was last increased for the premises (subsection 91(3)). The day stated must not be earlier than the later of (a) two months after the day the notice is given to the tenant, and (b) the end of the minimum period before the rent may be increased under section 93 (subsection 91(4)). A rent increase under a fixed term agreement may not be made before the term ends unless the agreement provides for the increase, states the amount or the formula for working it out, and the increase is made under the agreement (subsection 91(7)).

Notices under chapter 5 follow the structure in section 277: a notice to leave under section 326, a notice of intention to leave under section 327, a notice ending tenancy interest in accordance with division 3 subdivision 2A, and a notice from a mortgagee or appointed person under section 317. Each carries its own handover-day mechanism and grounds for issue. The tribunal may also make a termination order under division 6.

Conciliation timelines sit in chapter 6 part 1, and applications to QCAT in chapter 6 part 2.

The Act cross-references and interacts with a substantial set of other Queensland and Commonwealth laws. The dictionary in schedule 2 imports definitions used elsewhere. The Body Corporate and Community Management Act 1997 governs termination of residential tenancy interests in body corporate-managed premises. The Housing Act 2003 (Qld) governs the State's social housing role and is referenced in the section 91 carve-out for the State as lessor. The Land Title Act 1994 (Qld) and Property Law Act 1974 (Qld) govern mortgagee remedies for breach of mortgage and interact with the section 317 notice regime. The Bankruptcy Act 1966 (Cth), particularly section 133, governs trustee disclaimer of bankrupt land and creates the vesting-order pathway used by mortgagees to step in alongside the State following disclaimer. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) governs QCAT procedure and review pathways for tribunal decisions. The State Penalties Enforcement Act and its successor modernisation reforms (transitional provisions in chapter 14 part 6) govern infringement-style enforcement.

The first gotcha is the interaction between section 317 and mortgagee enforcement. A mortgagee that simply moves to take possession after default without serving the section 317 notice in the approved form, where the mortgagee did not consent to the tenancy, exposes itself to a maximum penalty of 50 penalty units and a delay of at least two months. The Federal Court vesting order practice in cases such as Australia and New Zealand Banking Group Limited v State of Queensland [2018] FCA 464 builds in an explicit dispensation, but only where the property has been disclaimed under section 133 of the Bankruptcy Act 1966 (Cth) and the mortgagee has obtained a vesting order under section 133(9). Outside that scenario, the section 317 notice is mandatory.

The second gotcha is the State exemption pattern. Sections 91 (rent increases), 92 (tenant's application about rent increase) and 163 (outgoings other than service charges) do not apply to the State (section 3(2)). Tenants of State-owned residential property therefore do not have the section 91 rent increase machinery available to them and must rely on alternative pathways.

The third is the reach of the rent increase rule. Section 91 applies both to periodic agreements and to fixed term agreements during the term, but does not apply to an increase from one fixed term agreement to the next (section 91(9)). Practitioners drafting back-to-back fixed term agreements should be careful that the second agreement is genuinely a new agreement.

The fourth is the dual track of residential tenancy and rooming accommodation. Premises offered as boarding or share-house arrangements may meet the definition of rooming accommodation rather than a residential tenancy, with the consequence that chapter 4 (rather than chapter 3) and chapter 5 part 2 (rather than chapter 5 part 1) apply.

A landlord in Brisbane on a two-year fixed term agreement wishes to increase the rent. Under section 91(2), the landlord must give written notice in the approved form. Under section 91(4) the increase cannot take effect earlier than two months after notice, and not before the end of the minimum period under section 93. Under section 91(7) the increase can only happen during the fixed term if the agreement provides for it and states the amount or the formula. If the tenant considers the increase excessive, an application to QCAT can be made under section 92.

A bank holds a registered mortgage over a Gold Coast unit. The borrower defaults and is bankrupted. The trustee in bankruptcy disclaims the property under section 133 of the Bankruptcy Act 1966 (Cth). The bank applies under section 133(9) for a vesting order. The Federal Court grants the vesting order on conditions that include dispensation from serving "a notice to vacate, under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)" (consistent with the practice in Australia and New Zealand Banking Group Limited v State of Queensland [2018] FCA 464). Without that dispensation, the bank would need to give the tenant the two-month section 317 notice in the approved form before obtaining possession.

A rooming accommodation provider sets house rules under chapter 4 part 3 and conducts entries to residents' rooms only in accordance with chapter 4 part 2. If a resident considers the entry rules have been breached, conciliation through the authority under chapter 6 part 1 is the first step before a QCAT application.