FAQs: COVID-19 Eviction Moratorium (Part 2)
The Property Management Support Service (PMSS) team fields up to 100 calls a week from REIQ members seeking clarity on certain topics – with the COVID-19 Eviction Moratorium [Residential Tenancies and Rooming Accommodation (Emergency Response) Amendment Regulation 2020 (Amendment Regulation)] being the trending topic of late. Have a topic you’d like us to cover in an upcoming edition of the PM Update? Email us at firstname.lastname@example.org!
Q: I thought the Eviction Moratorium was due to end of the “relevant period”, ie the earlier of the 2 dates being 29 September, 2020 or 2 October 2020. Why did the REIQ invest so much time negotiating with Government in relation to the Amendment Regulation?
A: Whilst the Eviction Moratorium would have ended, if the REIQ didn’t actively negotiate with all Stakeholders for the Amendment Regulation this would have meant that the other provisions of the Emergency Response Regulation would have stayed in place until the 31 December 2020. For example, the Show Cause Notice, mandatory dispute resolution and limitations of QCAT orders relating to COVID-19 affected tenancies.
On behalf of REIQ members and in the interests of property owners, the REIQ advocated strongly for the economic need to start transitioning back to the ‘normal’ legislative framework for Residential Tenancies. We know many property owners and tenants have been financially impacted by the pandemic. However, the economic indicators supported the need to for regular contractual tenancy obligations to resume. In fact, Queensland is the only state to largely resume to the normal regulatory requirements for tenancy obligations.
Q: I understand that some provisions of the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (COVID-19 Emergency Response Regulation) will continue to apply after 30 September 2020. Can you explain what these are?
- provisions allowing tenants to end their tenancies if they are experiencing domestic and family violence;
- protections for tenants against being listed in a tenancy database for rent arrears due to the impacts of COVID-19;
- entry restrictions and requirements to support COVID-19 social distancing measures and repair and maintenance obligations;
- Excessive hardship criteria relating to the collective income of listed tenants being reduced by 75% or more due to COVID and less than $5,000 in cash in their bank account together with the cap of one week’s rent compensation/letting costs.
Q: Under the COVID-19 Emergency Response Regulation if there was a fixed term agreement in place and the owner needed to sell the property due to being impacted by COVID-19, they could provide 2 months’ notice to either prepare the property for sale or if the property was sold and the buyer required vacant possession. Can an owner still do this?
A; As of the 30 September, 2020, no they cannot issue a Notice to Leave on these grounds. Additionally, if the tenancy is periodic the requirement to give the tenant 2 months’ notice if the property is sold and the buyer requires vacant possession no longer applies. The Notice Period has now reverted back to 4 weeks’ notice.
Q: What else has gone?
A: Sections 11-16, 37 which relate to;
- Cessation of Variation Agreements unless parties mutually agree otherwise
- No more mandatory RTA Conciliations – Form 16B no longer available
- No more restrictions on QCAT’s ability to issue Orders to Terminate a Tenancy that is COVID-19 impacted
- No more controls on rent increases if Tenancy is COVID-19 impacted
- Relaxation on maximum bond rule. If the rent has been reduced prior to 30 September, 2020 and the bond held exceeds the maximum permitted amount this is still ok. If however the rent is reduced from 30 September, 2020, and the bond held at the RTA exceeds the maximum period the excess amount will need to be refunded to the tenant.
- Section 37 – if the owner is suffering hardship due to COVID-19 they will need to apply directly to the Tribunal on an Urgent Application seeking to end the tenancy due to excessive hardship. This is the same process a tenant will need to follow from the 30 September, 2020.
Q: So does that mean if the tenants have been paying a reduced rent due to being COVID-19 impacted, the rent will automatically revert back to the full amount of rent payable as per the original tenancy agreement?
A: Yes, as long as any variation agreement that has been entered into ended on or before midnight 29 September, 2020. If a variation agreement has been entered into that extends past this date then the terms of that variation agreement remain the same.
Q: An owner/property manager issued a Notice to Leave in accordance with Section 35 – premises being sold, prior to the 29 September 2020, is this notice still valid?
A: Yes, any action/notices taken/issued prior to midnight on the 29 September 2020, remains valid.
This also means if a tenant sought a rent variation due to being COVID-19 impacted and a Form 16B Dispute Resolution Request or a QCAT Application had been lodged the tenant or agent then any subsequent Order made by QCAT will be based on the COVID-19 Emergency Response Regulations.
Q: Does this mean if the tenant is in arrears I am stuck with still following this process?
A: No, if the Form 16B had not been lodged to the RTA or an Application has not been made to QCAT and the tenant is in arrears of rent then the normal RTRA Act provisions apply. The property manager may issue a Form 11 when the tenant is 7 clear days in arrears with their rent and if the Form 11 is not remedied; and may then issue a Form 12 giving the tenant 7 clear days to hand the property over. If the tenant doesn’t hand the property over the next step is to lodge an urgent Application to QCAT seeking to terminate the tenancy.
Q: The variation agreement ends 29 September, 2020. There was a rent deferral of $100.00 for 12 weeks payable at the end of the variation agreement. The rent has now reverted to $500.00 per week although the tenant says they can’t pay the arrears of $1200.00 straight away. They want to pay it “off” over a few weeks, do I have to agree to this?
Technically no, you could issue the Form 11 and if not paid in the required timeframe then issue a Form 12. If the tenant doesn’t hand the property over an Urgent Application would then be made to QCAT to seek to end the tenancy. You need to be mindful however that QCAT has broad powers to make a ruling under section 92 of the amended Regulation.
QCAT may consider:
- steps taken by the tenant to remedy the breach;
- whether the lessor has acted reasonably; and
- any other issues it considers appropriate – COVID is likely to be considered a relevant issue
REIQ Members seeking further advice on the COVID-19 Eviction Moratorium or any other property management topic can call the PMSS Team on 1300MYREIQ (1300 697 347) or email email@example.com. Not a member? Join us today!