State budget lacks action on housing affordability
  • 23 Jul 2024
  • 5 min read
  • By Chris Cavanagh-McGill, Solicitor, Carter Newell Lawyers

Understanding the application of the RTRA Act to Queensland state housing

RTRA Act, Queensland state housing

The Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) has recently been subject to various amendments including the Stage 1 and Stage 2 Rental Law Reforms (rental reforms).

However, the RTRA Act does not govern all leases in Queensland - its application varies depending on the type of housing arrangement, the agreements used to formalise those arrangements, and the identities of the parties to those agreements.

Application of Section 26 of the RTRA Act to State Housing

State Housing typically refers to residential properties owned or managed by the Queensland Government through the Queensland Government agency now known as the Department of Housing, Local Government, Planning and Public Works (Department of Housing). These properties are generally allocated to tenants under subsidised rental schemes governed by the Housing Act 2003 (Qld) and can be broadly categorised as follows.

  1. Owner is the State; sublessor is a community housing provider under a head lease:

    Where the State remains the owner of the property but has entered into a head lease with a community housing provider (CHP), the RTRA Act applies to the sub-lease between the CHP and the tenant only.

    In some circumstances, specific terms in the head lease might also govern the tenancy relationship. Specific advice should be sought regarding any inconsistencies between the terms of a head lease and the provisions of the RTRA Act.

  2. Owner is the State; property is managed by a community housing provider, no head lease:

    If the State owns a property and engages a CHP for management services without a formal head lease arrangement, the RTRA Act does not apply to any tenancy agreement between the State and the tenant, pursuant to section 26 of the RTRA.

  3. Owner is a community housing provider; self-managed:

    When a CHP owns and self-manages the property, the RTRA Act generally applies in a similar manner as it does to private rental agreements. However, see the specific exceptions below regarding recent rental reforms.

  4. Owner is a private investor; community housing provider manages the property:

    In cases where a private investor owns the property but engages a CHP for management, the RTRA Act applies to the tenancy agreement between the private owner and the tenant.

Application of the NEW Section 82A of the RTRA Act

The recent rental reforms introduced a new defined term, “exempt lessor” (section 82A), which applies only to provisions relating to the new rental reforms. Broadly speaking, exempt lessors include both the State and CHPs.

Exempt lessors are exempt from:

  • The requirement to include the day the rent was last increased for a premises in a ‘Rent Increase Notice’ given to a tenant pursuant to section 91;
  • the 12-month minimum period to increase rent (section 93);
  • the requirement to provide evidence of last rent increase (section 93A).

National Rental Affordability Scheme (NRAS)

NRAS is a Commonwealth Government initiative aimed at providing affordable rental housing by offering financial incentives to private investors and CHPs.

NRAS properties, while often owned and managed by CHPs, differ from State Housing fundamentally in their funding structure, principally because their funding is not derived from the Housing Act 2003 (Qld); and, therefore, all tenancy agreements governed by NRAS are subject to the RTRA Act, including the recently introduced rental reforms mentioned above. Lessors operating under NRAS are not exempt lessors as newly defined in section 82A of the RTRA Act.

NRAS properties are also subject to compliance with the NRAS Act 2008 and the NRAS Regulations 2020.

Conclusion

Understanding how the RTRA Act applies to different state housing arrangements has only become more complex since the implementation of the recent rental law reforms.

Whether dealing with State housing, community housing, NRAS properties, or private investor arrangements, it’s essential to consider the specific legal frameworks and obligations that govern each scenario. By keeping up to date on Queensland’s changing rental law landscape, property managers can help their clients effectively navigate the complexities of Queensland’s housing laws and provide informed guidance to all stakeholders including their clients and tenants.

Read another property management article: Unlicensed real estate agent takes trust money and falsifies records.

Or browse our suite of property management articles.

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