Periodic inspections during the COVID-19 emergency

As solicitors for the REIQ Professional Indemnity Scheme (brokered by Aon Risk Services Australia Limited), many of the personal injury claims we defend on behalf of property managers involve allegations that the property manager has failed to conduct an adequate inspection of the property, resulting in a tenant or visitor sustaining personal injuries.

In this week's issue of the Journal, we consider the impact the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (the COVID-19 Regulation) has had on periodic inspections and the importance of still conducting thorough periodic inspections (which are properly evidenced in detailed inspection reports) during the COVID-19 emergency.

The COVID-19 Regulation released on 24 April 2020 contains temporary amendments to the Residential Tenancies and Rooming Accommodation Act (RTRA Act) designed to assist tenants and Lessors navigate through the COVID-19 emergency.

Periodic Inspections

Pursuant to Section 185 of the RTRA Act, the Lessor is responsible for ensuring that the property is fit for the tenant to live in, is clean and the property and inclusions are in good repair. Property managers should ensure they conduct a thorough inspection of the property in accordance with the requirements of their Property Occupations Form 6, or at least every six months.

Section 17 of the COVID-19 Regulation provides, among other things, that the Lessor or property manager must not enter the property to perform a periodic inspection if:

1. A person at the property is subject to a quarantine direction; or,

2. The Lessor or property manager is subject to a quarantine direction; or ,

3. The entry would contravene a public health direction;[1] or ,

4. The tenant refuses entry to the property because the tenant, or another person staying at the property, is a vulnerable person. Vulnerable person is defined in the COVID-19 Regulation and means: (a)An individual over 70 years of age; (b) An individual over 65 years of age who has an existing health condition or comorbidities; (c) An Aboriginal or Torres Strait Islander over the age of 50 who has an existing health condition or comorbidities; (d) And individual whose immune system is compromised. [2]

To assist property managers to determine whether they should be entering a property, the REIQ has prepared a letter to be sent to the tenant when serving a Form 9 Entry Notice (available on Realworks - click here).

If a tenant refuses entry to the property because they, or another person staying at the property, is a vulnerable person, Section 18 of the COVID-19 Regulation provides that the tenant must allow the Lessor or property manager to carry out the inspection by:

1. A virtual inspection; or

2. Video conferencing with the Lessor or property manager; or,

3. The tenant giving the Lessor or property manager access to photographs or video of the property and its inclusions of sufficient visual quality to enable the Lessor or agent to judge the condition of the property and inclusions.

There are a number of apps available for property managers to video conference with a tenant in order to perform a virtual inspection of the property including Zoom, Skype, FaceTime and WhatsApp. If the tenant and property manager are unable to reach an agreement regarding the inspection of the property in accordance with Section 18, a COVID-19 Dispute Resolution request can be lodged with the Residential Tenancies Authority (RTA).

Whether a periodic inspection is performed virtually or by the property manager attending the property, a detailed inspection report should be completed, which includes all repair and maintenance requests reported to the property manager by the tenant as well as all issues identified by the property manager during the inspection.

Property managers should conduct a thorough inspection of both the internal and external areas of the property. Specifically, they should check to ensure the external areas, such as driveways, concrete paths, and pavers are clean and free from mould, mildew or other potential safety hazards. If performing a virtual inspection, in addition to being shown these areas, property managers may need to specifically request whether the tenant is aware of any mould or mildew on external areas, such as driveways, concrete paths, and pavers, if it is not clearly visible via the virtual inspection.

A thorough inspection of internal and external staircases should also be conducted to ensure that the stair treads and handrails are in good condition and secure. Property managers should walk up and down the staircase, checking for any movement in the treads and also check the underside of the stairs. Property managers should also ensure that any handrails are secure.

If performing a virtual inspection, property managers should ask the tenants to be shown these areas and request whether the tenant is aware of any potential safety hazards that are not clearly visible via the virtual inspection.

If a property manager identifies any safety issues during the periodic inspection, such as loose treads on a staircase, they should request (in writing) that the tenant refrain from using the staircase until such time as repairs have been completed and place a barrier around the safety hazard and erect a warning sign to ensure the tenant and visitors to the property refrain from using the area until repairs have been effected.

After all inspections, property managers should write to their Lessor clients advising that an inspection has been carried out and enclose a copy of the inspection report (and any photographs or videos of the inspection).

It's critical that periodic inspections continue to take place during the COVID-19 emergency, whilst ensuring that precautions are taken to maintain the health and safety of tenants, property managers, Lessors, tradespeople and any other persons visiting a property.

The COVID-19 Regulation sets out how inspections are to take place where access to the property is not possible or refused. Best practice dictates that property managers update their systems and procedures in place to ensure that they continue to fulfil their obligations not only to their Lessor clients but to the tenants at rental properties managed by them. Fur`ther information to assist property managers update their systems and procedures can be found via the REIQ Website (click here).

If a property and its inclusions are not maintained in good repair, property managers may be exposed to claims for failing to adequately inspect the property and identify defects that should have been notified to the Lessor.

Property managers must remember that thorough inspections (either in person or virtually) are not only essential for complying with legislative requirements, but also provide an invaluable risk management tool if defending any claims which might arise from the condition of the property.

[1] More information about public health directions can be found at www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers.

[2] While section 17 of the COVID-19 Regulation refers to other grounds for entry to a property, we have focused on periodic inspections for the sake of this article.

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