Moving out boxes stacked on top of each other filled with household items
  • 08 Aug 2023
  • 5 min read
  • By Emily Holzberger, Associate, Carter Newell Lawyers

What happens to goods left at a property after a tenant's death?

Tenant death, Abandoned goods

In this article, we review the procedural requirements under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act) when goods are abandoned at a property as a result of a tenant’s untimely death.

Section 363 of the RTRA Act sets out the process for dealing with abandoned goods left at a property. However, in circumstances where a sole tenant has passed away, this process can often be complicated by additional requirements of dealing with next of kin and establishing a personal representative of the deceased tenant.

Section 324A of the RTRA Act deals with the end of a tenancy agreement if a sole tenant dies.

For further details regarding the ending of a tenancy agreement as a result of a tenant’s death, please see our earlier article.

Personal belongings of a deceased tenant

Section 13 of the RTRA Act defines a tenant as including the tenant's personal representative. According to the Acts Interpretation Act 1954 (Qld), a personal representative of a deceased individual means the executor or administrator of the deceased person's estate.

Property managers should take steps to identify a deceased tenant’s personal representative before dealing with or allowing anyone access to a deceased tenant’s belongings.

Whilst property managers should ensure that each tenant has provided a relevant emergency contact, this person does not automatically become the tenant’s ‘personal representative’ for the purposes of dealing with their belongings.

Pursuant to section 45 of the Succession Act 1981 (Qld), any property [1] of a deceased tenant will devolve to and vest in their executor, and if there is no executor, the Public Trustee. The executor is then responsible for managing the deceased tenant’s personal property or its divestment to a beneficiary.

However, it is not uncommon for people to die without a will, and therefore without an executor. As such, assets will likely be distributed by the deceased tenant’s next of kin as an administrator. The deceased tenant’s next of kin cannot distribute or deal with an estate until they receive a grant of letters of administration from the Court. Likewise, an executor cannot deal with an estate until they have received a grant of probate from the Court.

It is important that property managers ensure that they request sufficient legal documentation (including letters of administration, or a grant of probate and relevant ID) to support a person’s claim that they may deal with a deceased tenant’s belongings.

Goods left behind

Where a deceased tenant’s belongings are left at the property after an agreement ends, section 363 of the RTRA Act prescribes how the goods are to be dealt with.

Before disposing of any goods (or even moving any goods), we recommend that a detailed inventory be compiled. The inventory should note every single item left at the property which may be owned by the tenant, no matter how insignificant. The inventory should be signed and dated, kept on file and be supported by comprehensive photographic evidence.

The photographs should also note the date upon which they were taken. In addition, all model and serial numbers of any items left at the property should be recorded in writing along with the general condition of all goods.

Property managers should take care when handling tenants’ belongings and if necessary, advise their lessor clients to engage professional cleaners and/or removalists if goods are damaged or pose a safety hazard to property managers.

Section 363(2) of the RTRA Act, provides that the lessor may sell the goods, or dispose of them in another way, if the lessor believes, on reasonable grounds, that the goods:

  1. Have a market value of less than $1,500; or
  2. Storage of the goods would be unhealthy or unsafe, or would cause the market value of the goods to be completely or substantially depreciated; or
  3. The cost of removing, storing and selling the goods would be more than the proceeds of the sale of the goods.

If the goods do not fall within the above categories, they must be safely stored for a period of one month [2]. The deceased tenant’s personal representative may claim possession of the belongings (in writing) prior to the disposal of the belongings, in which case the lessor may claim the reasonable cost of removing and storing the belongings (section 363(7)).

If the deceased tenant’s personal representative does not claim the belongings within one month, the lessor may sell the belongings at auction or apply to QCAT for orders to deal with the sale or disposal of the belongings (section 363(4))[3].

Where there is some dispute regarding the identity of a personal representative or over the deceased tenant’s belongings, property managers should direct their lessor clients to seek legal advice regarding the same.

If the belongings are to be sold at auction, the lessor must provide notice of the auction by publishing a notice in a newspaper that is circulated in the general area of the property. The notice must provide a description of the goods, and the date, time, and location of the auction. The auction must take place at least seven days after the notice is published [4].

In an instance where the belongings are sold in accordance with the RTRA Act, the lessor may retain (out of the sale proceeds) the reasonable costs of removing, storing and selling the goods. Any remaining proceeds must be paid to the Public Trustee within 10 days after the sale (section 363(8)).

Documents or money left at the property must be dealt with in accordance with section 364 of the RTRA Act, namely by returning them to the owner of the document [5], or the Public Trustee.

Property managers should also be aware that the maximum penalty for a failure to deal with abandoned goods in the manner prescribed by the RTRA Act is 40 penalty units (currently $6,192). It is also possible that complaints could be made to the Residential Tenancies Authority if the correct procedures under the RTRA Act are not followed.

Best practice advice

Property managers should ensure that all tenancy agreements have a valid emergency contact person noted. However, in the event of a tenant’s death, property managers must have sufficient evidence to confirm the authority of a personal representative to deal with the deceased tenant’s belongings.

If there is any dispute or question as to the personal representative’s authority, lessors should seek legal advice regarding the same, and provide property managers with their lawful instructions to proceed. Otherwise, the deceased tenant’s belongings should be dealt with pursuant to section 363 and 364 of the RTRA Act.

[1] Including any legal or equitable estate or interest in real or personal property of any description according to section 36 of the Acts Interpretation Act 1954 (Qld).

[2] Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld), s 28.

[3] Lessors may consider an application to QCAT for how to deal with belongings where the costs of storing/removing/selling the belongings would outweigh the cost of the belongings.

[4] Ibid, s 29.

[5] For instance, Medicare cards and Centrelink correspondence should be returned to Services Australia.

Read more property management articles here.

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