Domestic and family violence - The role of property managers and lessors

In this article, we review the obligations of property managers/lessors under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTRAA) in circumstances where a tenant or occupant is experiencing domestic and/or family violence.

On 20 October 2021, the RTRAA was amended to provide enhanced safety measures for tenants/occupants experiencing domestic and family violence, including the option to either leave the rental property quickly, or if they choose, to remain at the rental property safely.

Any person who experiences domestic and family violence in a rental property has the same rights under the RTRAA, whether they are named on the tenancy agreement or not.

Disputes in relation to these provisions are determined by the Queensland Civil and Administrative Tribunal (QCAT).

WHAT IS DOMESTIC AND FAMILY VIOLENCE?

Domestic and family violence occurs when one person in an intimate personal, family, or informal carer relationship behaves towards the other person in the relationship in a way that is:

• physically or sexually abusive;
• verbally abusive;
• emotionally or psychologically abusive;
• economically abusive;
• threatening;
• coercive; or
• in any other way controlling or dominating of the second person and causes them to fear for their safety or wellbeing or that of someone else.[1]

Domestic and family violence covers a wide range of behaviours, including:

• causing personal injury to a person or threatening to do so;
• coercing a person to engage in sexual activity or attempting to do so;
• damaging a person’s property or threatening to do so;
• depriving a person of the person’s liberty or threatening to do so;
• threatening a person with the death or injury of the person, a child of the person, or someone else;
• threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
• causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
• unauthorised surveillance of a person;
• unlawfully stalking a person.[2]

ENDING A TENANCY

A person experiencing domestic and family violence may vacate immediately and has a right to end their tenancy/rooming accommodation agreement by giving a minimum of seven days’ notice using the appropriate form:

• If a tenant, a notice ending tenancy interest (domestic and family violence) (Form 20) is to be issued to the property manager/lessor; or
• If an occupant, a notice ending residency interest (domestic and family violence) (Form R20) is to be issued to the rooming accommodation provider.

The applicable form must be accompanied by evidence of domestic and family violence, which may comprise the following acceptable forms of evidence:

• A Protection Order or Temporary Protection Order;
• A Police Protection Notice;
• An interstate order or injunction for personal protection under the Family Law Act 1975 (Cth);
• An injunction for personal protection under the Family Law Act 1975 (Cth); or
• An RTA Form Domestic and Family Violence Report signed by a prescribed authorised professional, such as a health practitioner, a social worker, or a solicitor.

Property managers/lessors must take care to maintain a person’s privacy throughout this process, which means to maintain the confidentiality of any forms or evidence and to refrain from disclosing any related information to anyone, except in limited permitted circumstances (such as to take legal advice, or as required by law).

Property managers who breach their obligations of confidentiality in relation to a person experiencing domestic and family violence may be exposed to a penalty of up to 100 penalty units (currently $14,375).

Once a Notice is received that a person intends to leave a rental property because of domestic and family violence, the property manager/lessor must confirm within seven days whether:

1. The landlord intends to apply to QCAT to set the Notice aside, in which case the property manager/lessor must confirm to the vacating person:
   - the date that person’s interest in the tenancy/residency comes to an end, provided the person has actually vacated by that date;
   - if applicable, whether the tenancy/rooming accommodation agreement continues for any remaining tenants/occupants;
   - if applicable, the date that the remaining tenants/occupants will be informed that the person has vacated the rental property and ended their interest; or
2. That an application will be made to QCAT to have the Notice set aside.

ENDING THE INTEREST

If the vacating person is the only occupant of the rental property, then no further action is required. To maintain the vacating person’s privacy as a victim of domestic and family violence, there is no requirement that they provide their forwarding address to their property manager/lessor.

Property managers should note that the vacating person is not responsible for paying:

any additional costs for ending the tenancy/rooming accommodation agreement early;

re-letting fees;

costs relating to goods left on the premises; or

any damage to the rental property caused by domestic and family violence.

Once their interest has ended, the vacating person is able to request a refund of their portion of the rental bond by completing a RTA Form bond refund for persons experiencing domestic and violence (Form 4A). To maintain the vacating person’s privacy as a victim of domestic and family violence, any remaining tenants/occupants are not required to sign the bond refund request and will not receive any notice of the bond refund.

If other tenants/occupants remain at the rental property, then property managers/lessors must provide them with a Continuing Interest Notice no earlier than 7 days and no later than 14 days after the vacating person’s interest in the rental property ends. The Continuing Interest Notice must state:

• That the vacating person’s interest in the rental property has ended (but not to state the reasons why);
• That the tenancy/rooming accommodation agreement continues on the same terms; and
• If required, the details of a top up to the rental bond.

It is crucial that property managers/lessors remember throughout this process that they must not disclose that the vacating person has been experiencing domestic and family violence or any other details which may allude to that fact.

APPLICATION TO QCAT

Property managers/lessors should be aware that they can only apply to QCAT to dispute that a Notice and the supporting evidence of domestic and family violence has not met the requirements of the RTRAA. For example, if a person has not provided evidence of domestic and family violence.

QCAT will not examine:

• whether the person has experienced domestic and family violence; or
• the property manager’s/lessor’s belief as to whether that person could safely remain at the rental property.

If QCAT does not set aside the Notice, then the obligations for ending that person’s interest in the rental property will apply to the property manager/lessor as set out above.

If QCAT sets aside the Notice, the Notice will no longer be valid, and the tenancy/rooming accommodation agreement continues on the same terms. If that person is a tenant and nevertheless vacates the rental property, it may constitute an abandoned tenancy such that property managers should follow the ordinary procedures related to abandonment.

REMAINING IN THE RENTAL PROPERTY

If the person experiencing domestic and family violence chooses to remain at the property, they are entitled to change the locks on the rental property without the property manager’s/lessor’s prior approval, but they must:

• use a qualified locksmith or tradesperson;
• give a copy of the key or access code to the property manager/lessor (unless they agree it is not necessary or the QCAT orders that the keys do not have to be provided); and
• comply with any applicable body corporate laws.

Alternatively, the property manager/lessor must urgently action a request to change the locks received from the person experiencing domestic and family violence. New keys and access codes must not be shared with any person without consent, or reasonable excuse, and penalties apply for any breach of this requirement.

A person choosing to remain at the rental property can make an application to QCAT to be recognised as the tenant or a co-tenant, in place of any person who has committed an act of domestic and family violence. The property manager/lessor can attend and be heard at the hearing.

CONCLUSION

In circumstances where a tenant or occupant is experiencing domestic or family violence, it is important that property managers/lessors observe strict compliance with the privacy and timeframe requirements of the RTRAA.

Given the penalties involved for breaches of their obligations, best practice would be for property management agencies and property managers to maintain policies and procedures on responding to domestic and family violence, based on available guidance from the Residential Tenancies Authority. Principals should ensure that property management staff undergo induction and periodic training to minimise the risk of breaches of the RTRAA.

Property managers who are notified of a tenant or occupant who is experiencing domestic, or family violence are urged to take early legal advice to assist them in managing this very serious yet sensitive issue and to ensure that they are meeting their obligations both the tenant/occupant and their lessor client.

References

[1] Domestic and Family Violence Protection Act 2012 (Qld) s 8(1).

[2] Domestic and Family Violence Protection Act 2012 (Qld) s 8(2).

To read another article about domestic violence, click here.

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