The responsibilities of a co-tenant when ending a tenancy

Where more than one tenant has entered into a General Tenancy Agreement (the agreement) to rent a residential property in Queensland, the tenants will be considered jointly and severally liable for any breach of the agreement.

Often a co-tenant of a property may wish to vacate the property whilst the co-tenant wants to continue living at the property. In these circumstances, a process must be followed by the departing tenant in order to effectively shield themselves from any future claim against them for a breach of the agreement.

Section 277 of the Residential Tenancies and Rooming Accommodation Act (2008) Qld (the Act) sets out the ways in which a tenancy can end. In most circumstances, the tenancy will end by the written agreement of the parties, or by a co-tenant providing notice to leave.

The Act also stipulates that a tenancy can be ended where there has been domestic or family violence. However, even where domestic or family violence may be a reason for leaving the property, it is important that co-tenants are aware of their responsibilities before vacating the property.

QCAT decision: Jacobs v Karagianis

In the Queensland and Civil and Administrative Appeals Tribunal (the Appeals Tribunal) decision of Jacobs v Karagianis [2016] QCATA 153, the appellant attempted to retrospectively claim that she had ended her co-tenancy of a property she had formerly shared with a Mr Bentley due to domestic violence.

The appellant and Mr Bentley (who was her former partner) entered into an agreement to rent a property owned by the respondent and a number of his family members. The tenancy started on 29 March 2014. The appellant vacated the property in August 2014. The tenancy was later terminated in May 2015, when Mr Bentley was the only remaining tenant of the property.

At first instance, the respondent had filed a claim against the appellant and Mr Bentley seeking compensation for damages arising out of the tenancy. The Tribunal ordered at first instance that the appellant and Mr Bentley were jointly liable to pay compensation of $9,967.45 to the respondent. In addition, Mr Bentley was liable to the respondent for a further $2,211.86.

The appellant sought to appeal the Tribunal's decision at first instance on the basis that it had not given enough consideration to the abusive relationship which she had with Mr Bentley, the reasons she vacated the property so suddenly, and the reasons why she did not undertake formal steps to remove herself from the agreement.

The appellant noted in her application for appeal that the Tribunal's decision at first instance would have been different if she had formalised her allegations of abuse in a Domestic Violence Order against Mr Bentley, but that "too often women are scared to involve police and they are ultimately punished for being scared". The appellant therefore asked the Appeals Tribunal to consider that domestic violence was a valid reason for her not to have followed the procedure of providing a notice to leave.

The Appeals Tribunal stated that the Act was clear as to how a tenancy could be terminated on these grounds. The Act provides that the tenancy can be terminated due to excessive hardship [1], or if a co-tenant is likely to cause injury to that tenant [2]. However, in order for the tenancy to be terminated, an application must be made to the Tribunal seeking those orders.

The Appeals Tribunal stated that there was no evidence to suggest that the appellant's situation was so dire that she could not seek help. It also noted that she had the support of her father and that she was working in the real estate industry.

The Appeals Tribunal noted that it was of importance to the Tribunal at first instance that the appellant's email to the property manager of the property advising that she was leaving the property was not equivocal, and she had continued to pay rent whilst Mr Bentley sought another co-tenant.

The Appeals Tribunal also noted that it was only on appeal that the appellant argued that the domestic violence situation prevented her from taking any positive action.

In these circumstances, the Appeals Tribunal concluded that there was no reasonably arguable case that the Tribunal at first instance had erred in its decision and it therefore refused the appellant's application for Ieave to appeal.

Best practice tips

As this decision demonstrates, it is important that tenants who wish to vacate a rental property during a tenancy are aware that they must provide a Notice of Intention to Leave (Form 13) to the Lessor in accordance with the Act.

In addition, a co-tenant leaving a property during a tenancy will need to complete a Change of Bond Contributors Form (Form 6) and provide the same to the Residential Tenancies Authority in order for their contribution to the bond to be refunded. If all tenants move out, a Refund of Rental Bond (Form 4) should be completed.

In circumstances where domestic or family violence is a reason for the co-tenant leaving the property during a tenancy, it is best practice for property managers to refer the co-tenant directly to the Residential Tenancies Authority for advice.

Ultimately, the co-tenant experiencing domestic or family violence can apply to the Tribunal for orders removing the perpetrator of the violence from the tenancy agreement, ending the tenancy early and preventing their personal information being listed on tenancy databases where a breach of the agreement is a result of the actions of a person who has committed an act of domestic or family violence.

Property managers should note that, since this article was written, the Queensland Government enacted provisionstoprotect tenants experiencing domesticand family violence during COVID-19 in early 2020. These provisions have been extended until 30 September 2021. Please refer to our article on Responding to domestic violence in a tenancy.

[1] Section 310.

[2] Section 312(1)(b)(i)