Minimum Housing Standards - An update

On 21 February 2023, my colleague, Andrew Persijn of Carter Newell Lawyers, alerted agents and property managers to the new “Minimum Housing Standards” (the Standards) for residential tenancies, which came into effect for new tenancies from 1 September 2023, and which will come into effect for all tenancies from 1 September 2024.

The Standards set out in Schedule 5A of the Residential Tenancies and Rooming Accommodation Regulation 2009 (the RTRA Regulation) prescribe minimum Standards for both the “safety and security” and “the reasonable functionality” of residential premises.

Compliance with the Standards is mandatory.[1]

Tenants are now empowered to require their landlord to remedy any failure to comply with the Standards,[2] or may rely upon an alleged failure to comply with the Standards to justify the termination of their tenancy.[3]  Tenants are also empowered to arrange, for themselves, work to be undertaken to the residential premises, if the landlord fails to respond to a notice issued to it as to the condition of the property.[4]

Tenants may also apply to the Queensland Civil and Administrative Tribunal (the Tribunal) for relief from a rent increase and, in deciding such an application, the Tribunal must consider a range of factors, including whether the increase relates to meeting the Standards.[5]

Should agents receive a notice from a tenant about an alleged failure to meet the Standards, or challenging a rent increase, or identifying an alleged defect or an item requiring repair, agents should ensure that they promptly seek instructions from their landlord clients to investigate and, if necessary, address these issues.

The agent should, in the first instance, compare the matter the subject of the complaint to the pre-tenancy inspection report for the property and, if possible, seek either a photograph of the matters about which the complaint has been made or promptly arrange for a physical inspection of the property.

Whilst the Standards are prescriptive, they do not excuse a tenant from his or her obligation to keep the property “clean”, having regard to its condition at the commencement of the tenancy.[6]  Therefore, agents should ensure that the matter the subject of the complaint is not the result of the tenant’s own conduct.

However, it must be noted that the responsibility of tenants for damage to the property is now waived with respect to any damage which is referrable to an act of domestic violence.[7] The existence of this exception now raises the problem for a landlord and their agent in seeking to determine whether damage to the property is the result of an act of domestic violence, or some other cause.

In this regard, the landlord and his or her agent must rely upon what they are told by the affected tenant; there is no right for the landlord or his or her agent to access police reports concerning acts of domestic violence.

Given the extension of the Act to all tenancies from 1 September 2024, landlords will be well advised to undertake an audit of their rental properties to ensure that:

1. the premises are “weatherproof, structurally sound and in good repair”;[8]
2. all fixtures and fittings, including any electrical appliances which form part of the tenancy, are in “good repair”;[9]
3. windows and doors are fitted with functioning locks or latches;[10]
4. the premises are “free of vermin, damp and mould”;[11]
5. the premises enjoy the requisite degree of privacy in those rooms in which a tenant is “reasonably likely to expect privacy”, such as bedrooms;
6. the plumbing and drainage of the property is functional, and connected to a water supply that supplies hot and cold water, which is suitable for drinking;[12]
7. all bathrooms and toilets provide the user with privacy; such as a fitted door which closes;[13]
8. the kitchen, if included, includes a functioning cooktop;[14]
9. the laundry includes fixtures that provide a functional laundry.[15][16]

Furthermore, a raft of more changes will soon come into effect, on a date to be proclaimed – which has not yet been identified – concerning:

1. the calculation of re-letting costs, which will be calculated by reference to the remaining time in the tenancy, not the actual costs of finding a new tenant;
2. affording tenants a choice in the manner of payment of their rent, including a way which does not incur more than usual bank costs;
3. disclosing any benefits received by managing property agents regarding rent payments;
4. requiring that utility bills are provided to tenants within a four week time frame;
5. extending the landlord’s entry notice period from 24 to 48 hours;
6. limiting the frequency of the entry into rental premises;
7. limiting the maximum bond to no more than four weeks;
8. revising the rental application process to include a “standardised” rental application form.

We will provide an update concerning the detail of these changes closer to the proclamation date.

In the meantime, landlords and their agents should appreciate that, whilst competition for desirable rental properties is fierce, and rents in many residential areas are climbing, the amendments significantly empower tenants.

It is important to ensure, to maintain a functioning tenancy arrangement, that landlords are astute to identify any damage or deficiency in the condition of the rental premises, and ensure that those issues are rectified promptly.

It is far better for the landlord to be proactive in addressing actual or perceived defects, or any failure to meet the Standards, than allowing the tenant the opportunity of identifying defects and making his or her own demands, predicated upon the tenant’s assessment of the condition of the property. 

Now, more than ever, agents should ensure that inspection schedules, to be completed prior to the commencement of the tenancy, are accurately and comprehensively completed, supplemented, if possible, by photographs, and landlords must not only be careful in selecting the right tenants but alive to ensuring that their residential premises meet, and continue to comply with, the minimum Standards prescribed by the Regulation.

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