Expect the unexpected: Are you prepared in the event of an emergency?

Even the most experienced property managers may struggle when encountering unexpected emergencies. In this article, we revise the regulations under the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) in relation to emergency repairs and provide useful tips on how to deal with emergency repairs.

Power of Entry

Pursuant to sections 192(1)(k) and (l) of the RTRA Act, a Lessor or Lessor's agent may enter the premises in an emergency, or if the Lessor or agent believes on reasonable grounds that the entry is necessary to protect the premises or inclusions from imminent or further damage.

If the Lessor or Lessor's agent is required to enter the premises due to an emergency, or to protect the premises from imminent or further damage, they may do so without giving the tenant notice of the proposed entry (section 193(2) of the RTRA Act).

What constitutes an emergency repair?

Section 214 of the RTRA Act defines emergency repairs as work needed to repair any of the following:

• a burst water service or a serious water service leak;
• a blocked or broken lavatory system;
• a serious roof leak;
• a gas leak;
• a dangerous electrical fault;
• flooding or serious flood damage;
• serious storm, fire or impact damage;
• a failure or breakdown of the gas, electricity or water supply to the premises;
• a failure or breakdown of an essential service or appliance on premises for hot water, cooking or heating;
• a fault or damage that makes the premises unsafe or insecure;
• a fault or damage likely to injure a person, damage property or unduly inconvenience a tenant of the premises;
• a serious fault in a staircase, lift or other common area of premises that unduly inconveniences a tenant in gaining access to, or using, the premises.

Rights and responsibilities

The fundamental difference between an emergency repair and routine repair is the way in which a Lessor is obligated to respond to the damage. While routine requests can be attended to within a reasonable time frame, a Lessor (or property manager on their behalf) must respond to emergency requests immediately.

The failure to address emergency repairs in a timely fashion could expose Lessors and/or property managers to claims of mismanagement or negligence.

When completing a Form 18a General Tenancy Agreement, the Lessor has the option of nominating a contractor to act on their behalf to conduct emergency repairs to the premises. Pursuant to section 216 of the RTRA Act, the Lessor must indicate whether the nominated contractor is the tenant's first point of contact for notifying the emergency repairs.

Should the nominated contractor change, the Lessor is required to notify the tenant in writing. It is essential that the nominated contractor is suitably licensed and qualified.

Where a need for emergency repairs arises and a nominated contractor has been designated as the tenant's first point of contact, the tenant must contact the nominated contractor first. They may also notify the nominated contractor where they have been unable to contact the Lessor after making reasonable efforts.

If repairs have not been made within a reasonable time after the notice is given, or the tenant has tried to contact the Lessor, property manager or the nominated contractor without success, the tenant may, at their own initiative, arrange for a suitably qualified person to attend to the emergency repairs.

Section 219 of the RTRA Act provides that the tenant cannot incur repair fees greater than two weeks rent under the tenancy agreement. The tenant can either seek reimbursement from the Lessor for their out-of-pocket expenses or demand that the Lessor pays the contractor directly.

If the Lessor does not reimburse the tenant within seven days of receiving notice of the tenant's incurred expenses, the tenant may apply to the Queensland Civil and Administrative Tribunal for a payment order.

Best practice

It is important that property managers are fully aware of their (and their Lessor clients') rights and obligations with regards to emergency repairs.

The stringent obligations surrounding emergency repairs necessitate a separate response system to be implemented by property managers. It is important that property managers adopt and follow a standardised set of procedures addressing emergency repairs, which include a diarised system documenting all the steps they have taken to remedy the defect.

Once a defect has been identified as an emergency repair, it is best practice to arrange for the necessary repairs to be carried out on the same day that it is reported. While property managers should contact the Lessor as soon as they are made aware of the repair, the failure to obtain instructions should not be a cause for unreasonable delay in attending to the repair.

Where the Lessor has not nominated a contractor for the property, property managers should have at hand a list of preferred contractors that meet the required standards of the agency. Property managers should also keep the tenant informed of the progress of the repair.