FAQs Notice to Remedy Breach Form 11

The REIQ's Property Management Support Service often received queries about the Form 11. We've complied some answers to commonly asked questions below.

Q: Do you need to issue two breach notices before you can issue a Notice to Leave?

A: No. If a tenant breaches the Agreement (Form 18a, either a standard term or a special term) or the RTRA Act you can issue a Form 11 Notice to Remedy Breach (NTRB). For rent arrears, the tenant must be seven clear days in arrears before you can issue the Form 11. Once you issue the Form 11, you must allow the tenant seven clear days to remedy the breach. If the tenant doesn't remedy the breach, the next step is to issue the Form 12 Notice to Leave. The notice period for the Form 12 if the breach was a rent breach is seven clear days and for a general breach the notice period is 14 clear days.

If the tenant didn't remedy the breach and the owner instructed you, in writing, not to proceed with issuing the Form 12, no further action could be taken on this breach notice other than keeping a record on the file. The Act allows for a Form 12 to be issued to seek to end the tenancy but the owner can elect not to take this action, indicating they've tolerated the breach and allowed the tenancy to continue.

Q: I have heard there has to be repeated breaches by the tenant before you can issue the Form 12.

A: This isn't true. As stated above, regardless of whether it's the first time the tenant breaches the Agreement or Act, if they don't remedy the breach the next step is to issue the Form 12. The difference is if the tenant remedies the breach. This is where it is important to understand section 299 of the RTRA Act and repeated breaches. If the tenant remedies the breach, this means no further action can be taken at that stage as the breach has been remedied.

Let's say for example that you issue the tenant a Form 11 for rent arrears. On the day of expiry of the Form 11, pays the amount as per Item 5 of the Form 11 issued to them. Note - rent is considered to be paid when it has been transacted from the tenant’s bank account for which you would request evidence if the funds have not been received in your trust account.

As the amount listed in Item 5 has been paid the breach has been remedied although as they paid no other rent within a day or so the tenant will be seven clear days in arrears again. You issue the Form 11 and the same process is followed - the tenant pays the amount owing as listed in Item 5 on the Form 11 on the day of expiry. No further action can be taken on this Form 11. Once again, within days the tenant is seven clear days in arrears. This is where you need to understand what repeated breaches mean.

As you have issued two breach notices for the same provision, on the third breach (which must be within 12 months and within the same tenancy agreement) you can apply directly to QCAT on an Urgent Application seeking to terminate the tenancy due to repeated breaches (section 299). This means on the third breach you do not issue a Form 11, you apply directly to QCAT seeking to terminate the tenancy due to repeated breaches

Remember, you can only rely on section 299 if the tenant remedies the first two breach notices.

The repeated breaches provision is specific to:

• section 184 tenant's use of premises.
• section 188 tenant's obligations generally; or
• a provision of an agreement providing for the payment of rent

Q: If the tenant has breached more than one standard of special term, how should I handle this?

A: There's no prescribed wording for Part 4 of the Form 11, although it's critical the specific standard or special term is stated clearly so the tenant knows what they have breached and what action is required to remedy the breach. If you issue the Form 12 and the tenant doesn't hand the property over, you'll need to apply to QCAT to seek a Termination Order. If you haven't been specific on the Form 11, it could compromise the success of the Order you are seeking at QCAT.

If there are multiple breaches you could do either of the following.

1. Reference an attached Annexure in Part 4 and detail each specific breach, i.e. standard or special term breached and action required to remedy, separately.

2. Issue a separate Form 11 for each specific breach and in Part 4 state what part of the Agreement was breached and what action is required to remedy the breach.

Q: I have just completed a routine inspection, and the tenants aren't looking after the yard. They've also made one of the smoke alarms non-operational. I can't see a standard term in the Form 18a that I can issue a breach forI - can you help me find it?

A: This is because there isn't a standard term specific to these matters. You need to carefully read the special terms of the Form 18a the tenant has signed. For example, if you use the Realworks version of the Form 18a, you can rely on legally drafted special terms such as the following

Lawn issue - In Part 4 of the Form 11, you'd reference Special Term51 (1) (d) which states: "during the tenancy the tenant must, maintain the lawns and gardens at the premises having regard to their condition at the commencement of the tenancy, including mowing the lawns, weeding the gardens and watering the lawns and gardens (subject to council water restrictions)."

Smoke alarms issue - In Part 4 of the Form 11 you’d reference Special Term 57 (5) (j) which states: “not tamper with or otherwise render a smoke alarm inoperative. Such an Act will constitute malicious damage in accordance with section 188 of the Act.”

Q: I have just completed a routine inspection, and the tenants have a dog they haven't got approval for. What do I put on the breach notice?

A: There is a standard term of the Form 18a in relation to pets, so you would first check the Form 18a, Item 19 and determine what was agreed to in the agreement for pets. If the tenant has a pet that wasn't agreed to, you would reference Item 19 and standard term 34 (1).

Best Practice Tip:

Whenever you believe the tenant has breached the Agreement, always check the Standard Terms first and if the issue isn't covered in a Standard Term, check the Special Terms of the Agreement the tenant has agreed to.

Q: I want to go back to a property and reinspect to check if a breach has been remedied; the tenant is saying they won't allow access. What can I do about this?

A: Entry to premises to check if a breach has been remedied can only occur if the breach is significant or by mutual agreement with the tenant. Entry can occur within 14 days after the end of the allowed remedy period by providing the RTA Form 9 with 48 hours' notice.

A significant breach means a breach relating to any of the following;

• using the premises for an illegal purpose;
• the number of occupants allowed to reside in the premises;
• keeping a pet on the premises; or
• another matter, if the reasonable cost of rectifying the matter exceeds 1 weeks rent for the premises

Q: If the tenant hasn't remedied a Breach and it expires, what is the timeframe in which I must issue the Form 12?

A: There isn't a timeframe stipulated in the RTRA Act. The Form 12 is a consequence of the Form 11 not being remedied, so if the matter proceeded to QCAT you would need to demonstrate you issued the Form 12 in a "reasonable" amount of time. Our best practice advice is to issue the Form 12 on the first business day after the Form 11 expires, otherwise, you'll require supporting evidence as to why there was a significant time lapse from the Form 11 expiring to issuing the Form 12.

REIQ members seeking further advice on this topic or any other property management topic can call the Property Management Support Service team on 1300MYREIQ (1300 697 347) or email ask@reiq.com.au. Not a member? Join us today!

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