Articles in Category: Member Update

Contents of Real Estate Excellence Member update - emailed to members the first week of each month plus loaded online in the Member updates folder.


Agencies fined for unlawful entry to rental property - Queensland

Training event QLD August to September 2018

Two recent prosecutions by the Residential Tenancies Authority (RTA) included breaches of 'rules of entry' to rental property. Section 192 to 199 cover rules of entry under the RTRA Act. These requirements are called rules of entry as per section 200. Upcoming property management training throughout Queensland (from August to September 2018 - one session each location) will include this topic as part of the training and education event Click here for more information regarding the training events

Upcoming property management training

What property managers need to know about the RTRA Act regarding special terms. The session will include information on educating lessor clients regarding the Act and carpet cleaning, pools, pest control and more. Best practice completed tenancy agreement/contract will be provided and discussed plus how to bind the tenant lawfully in accordance with the RTRA Act. We shall also discuss 'rules of entry' legislation.

Real Estate Agency fined $10000 and criminal conviction

Real Estate Agency fined $8500 and convicted

 

QCAT and property management

Update 4th June 2018 

Queensland Real Estate Excellence members,
 
I have been researching and have found some possible good news for now in relation to QCAT and names on applications.
 
I have updated the ‘fact sheet’ QCAT compensation order (new page 5) with a version 2 and have found a useful appeal decision which may be useful if needed regarding orders made in the agency name.
 
I am always conscious of sending too many emails to you, so for now have decided to post this, which you can find at member login (shown below) in folder 00 latest member update, plus in QCAT folder 30 as shown below as well.
 
I have emailed the above to members I am aware of concerns etc on this matter.
 
 
Stacey Holt
 
Join the private FB members group at link below (member offices only)
 

 

Update 1 June 2018

The Principal Registrar of QCAT has phoned me to discuss the concerns today, which was appreciated. The Principal Registrar is going to review the matter and we will discuss again within the next fortnight. For now members and industry are advised to continue putting the Lessor name/s on applications and consider wording of agency name representing the Lessor name, or Lessor name represented by agency name. I will advise member offices via email of future updates regarding this matter. Stacey Holt.

 

QCAT commenced in Queensland December 1 2009. Over the years there have been many situations throughout the state regarding names of applicants and inconsistencies in relation to completion of documentation. Below tries to explain possible reasons for this. If your agency is concerned about QCAT requiring the agency name to be on the application instead of lessor name care of the agency,  (or will not accept an application to join a landlord to a proceeding if the tenant has named the agency as respondent instead of the landlord), please voice your concern by contacting QCAT at their email address  here. - Attention the email to Principal Registrar. Suggestion is to name the registry (courthouse) where there are concerns, and if known, any names of sitting members who have given direction. I have written to QCAT and followed up with no response as at today 31 May 2018.

The following QCAT Appeal cases demonstrate why agencies should not have their name solely as part of the application or be named as a party solely. The tenancy legal contract is between the lessor and tenant; the agent represents the lessor via the Property Occupations Act. The cases have been made available to member offices as part of membership services and can be sourced from www.qcat.qld.gov.au

Important information was emailed to Real Estate Excellence member offices on 21st May regarding this matter Member update. A fact sheet for member offices if they are named in a compensation claim order is also now available. As per information supplied to members in detail, section 206 (3) RTRA Act allows agents to stand in the lessor place at tribunal. This provision is being cited by some sitting members as to their reasoning for not allowing lessor name on the applications and only the agency. Stand generally means represent, not be the applicant. A solicitor represents (stands) in place of their client as representative but are not the party before the court so to speak as a generalised analogy.

Noosa Hot Properties.com Pty Ltd v Olopai [2012] QCATA 201

Peter McManus Real Estate v Czuchwicki [2016] QCATA 173

 Corcoran v Simon [2016] QCATA 109

Below is a brief overview of QCAT and is sourced from chapter 30 (part of chapter 30.1) of the Property Management Excellence QLD PME manual

QCAT (Queensland Civil and Administrative Tribunal) is the jurisdiction that hears tenancy disputes (and many other civil matters). If a tenancy dispute cannot be resolved via dispute resolution through the RTA or self-resolution attempts within the agency are unsuccessful, a tenancy dispute can be taken to Tribunal for a legal resolution.

There are two types of Tribunal applications; urgent and non-urgent. These two types of applications are legally defined under the RTRA Act in sections 415 and 416.

QCAT is a civil jurisdiction as opposed to criminal. QCAT works under the premise of ‘balance of probabilities as opposed to beyond a reasonable doubt which is criminal’. The QCAT Act, regulations and rules allow tribunal members discretion in relation to how they run their ‘court room’ and procedures. Whilst there are legislative requirements, the sitting member has discretion to request their own procedures for their ruling based on balance of probabilities.

For example; some sitting members make it a requirement that there must be affidavits and affidavits of service or they will not hear the matter. It is best practice which is referenced in this chapter, that affidavits and affidavits of service should always be completed prior to making applications to tribunal.

Sitting members do not have to look at all the evidence presented; if they believe the evidence provided is sufficient, they can make a ruling on the matter. If a sitting member make an error at law and or natural justice has not occurred, an appeal can be made. Appeals are discussed further in this chapter.

Adjudicators (lawyers) or magistrates hear tenancy applications and disputes in the Tribunal. When making decisions, adjudicators and lawyers must give reasons for their decision. Some areas of Queensland have Justices of the Peace (JP’s) that can hear matters up to $5000.

Carpet cleaning and Queensland property management

Pets and pest control information; Real Estate Excellence member offices, please refer to the February 2018 Member Update or email us to receive.

Friday 8th June 2018

Good morning Real Estate Excellence members, a quick update (so much going on for you, sorry!). 
I have written to the RTA as shown below regarding carpets and pets, pool chemicals and more. I shall advise when I know more via the Real Estate Excellence FB Member group  and email as not all members of course are on social media and or not in this group.

Tuesday 5th June 2018

A best practice email/letter template to retract carpet cleaning special terms (as per advice from RTA training video) is now available for members at folder 6 carpet cleaning (property management/PME main folder), plus templates to assist members in advising and educating lessors.  login to member online to access or email us to receive. An email was sent to Platinum PME and Platinum non PME Member offices on 7th June 2018 with resources as per above.

Monday 4th June 2018

Click here to view training video from the RTA regarding special terms

 Property managers/owners often include carpet cleaning under special terms in a tenancy agreement to ensure a rental property is up to standard when the tenant vacates.

These special terms typically concern the obligations and responsibilities of a property manager/owner and tenant under the Residential Tenancies and Rooming Accommodation Act 2008 (the Act).

However, while carpet cleaning is not specifically referred to in the Act, the inclusion of a special term regarding carpet cleaning is not necessary, as carpet cleaning should be considered in terms of general rules around the standard and condition of a rental property.

Under section 188 (4) of the Act, the key phrase relating to tenants’ obligations is “as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear excepted”.

At the commencement of a tenancy, the standard or condition carpets are in should be clearly articulated through the Entry Condition Report with any evidence (i.e. photographs) attached.

The tenant, when exiting the tenancy, can then comply with their own obligations to clean the carpets to the same standard, fair wear and tear excepted.

If a special term states that a tenant must provide a receipt or engage a ‘professional’, it is a breach of section 171 of the Act (supply of goods and services). Tenants cannot be required to buy, or agree to buy goods or services from the property manager/owner or a person nominated by the property manager/owner.

For more information around tenancy and responsibilities, explore the RTA website or contact the RTA direct on 1300 366 311.

The RTA is a Queensland Government statutory authority that administers the Residential Tenancies and Rooming Accommodation Act 2008. We provide tenancy information, bond management, dispute resolution, investigations and prosecutions, and policy and education services.

Sourced from www.rta.qld.gov.au May 28 2018

RTA increases its prosecutions

RTA increases its prosecutions

 

The Residential Tenancies Authority (RTA) has significantly ramped up investigations and increased the number of prosecutions and Penalty Infringement Notices (PINs) issued to property managers/owners.

Over the past year, the RTA has initiated more PINs and prosecutions than ever before due to a pattern of re-offending and disregard for compliance requirements. The majority of these investigations involved real estate agents, landlords or property owners, with only a very small number involving tenants.

However, not all investigations required a PIN to be issued or full prosecution, as investigations can be resolved or finalised in a range of ways, including education, before they reach prosecution. PINs have increased by 700 per cent compared to previous years, with more than 300 per cent resulting in legal proceedings.

Director for Policy and Stakeholder Engagement Meghan Hibbert said the RTA expected a high level of compliance, especially from property managers. “Lodging a bond, entering a premises lawfully and exercising your obligations in relation to providing documentation are the basic rules of property management, yet we have no shortage of investigations where breaches have occurred. Ignorance of the law is not acceptable as an excuse.”

There are some 200 offences contained in the Residential Tenancies and Rooming Accommodation Act 2008  (the Act), with 125 of those being prosecutable. Some of the more frequently prosecuted offences include failing to lodge rental bonds with the RTA within 10 days of receipt, providing false or misleading information to the RTA, unlawful entry to a rented property and contracting out of the Act’s requirements.

“It is unfortunate that we are seeing one of the most serious breaches of the Act all too often, which involves many tenancy agreements containing unlawful special terms. Breaches include ‘contracting out’ of requirements under the Act, or the provision of a particular service as a condition of the tenancy,” Meghan said.

Meghan said that agents must ensure they are completing forms and documentation correctly, and fully. “Documentation is key, and the RTA will consider prosecuting individuals or companies found to have provided false and misleading information to the RTA,” she said.

“If found guilty a criminal conviction may be recorded by the court, and this could impact an agent personally, such as when renewing their licence or other areas of their life. These offences carry significant fines with penalties up to $3,000 for individuals and $10,000 for companies.”

This process is separate to any related QCAT matter. If a corporation is being prosecuted, the maximum penalty is five times what it is for an individual. Fines can amount to tens of thousands of dollars.

“There is a common misconception among some real estate agents that offences under the Act are civil matters,” Meghan said. “The RTA would like to make it clear that these matters are criminal offences that are prosecuted through the Magistrates Court to either a plea of guilty or a summary trial in which the rules of evidence apply.

“It is critical that anyone found to have been issued with a penalty notice or received notification of legal proceedings in relation to an offence under the Act seek legal advice from a criminal lawyer.”

Sourced from www.rta.qld.gov.au 28 May 2018

Carpet cleaning and property management (QLD) Read important information here

 

 

Queensland agency fined by the RTA

Sourced from www.rta.qld.gov.au May 4 2018

Queensland real estate agency fined $10k with a criminal conviction recorded

A Queensland real estate agency has been criminally convicted and fined $10,000 for committing repeated offences under the Residential Tenancies and Rooming Accommodation Act 2008 (the Act).

Coronis Realty, trading under SNA Group Pty Ltd, was convicted in the Richlands Magistrates Court on 10 April 2018.

The Court fined Coronis Realty for requiring a tenant to purchase carpet cleaning services as a condition of the tenancy agreement, and entering the tenant’s home unlawfully, including twice when only the tenant’s children were home.

A penalty of $10,000 was handed down with a criminal conviction recorded.

Magistrate Stuart Shearer drew parallels between the unlawful entries and burglary, and criticised the agent’s response to the tenant’s complaint for entering their home without adequate notice.

The agent from Coronis Realty served the tenant with a notice to remedy breach on the same day of their complaint.

“A tenant who is properly complaining about unlawful activity by the agency, to then be effectively threatened with a notice that, if uncomplied with, could see her evicted is a serious aggravating feature,” Magistrate Shearer said.

Residential Tenancies Authority (RTA) Policy and Stakeholder Engagement Director Meghan Hibbert said the RTA is taking a proactive approach to enforcing compliance from tenants, property managers and owners due to an increase in multiple and repeated offences.

“Coronis Realty has been warned previously by the RTA for committing similar offences. What some people don’t realise is that offences under the Act are criminal – they can carry a conviction in addition to a significant financial penalty for companies and individuals,” Ms Hibbert said.

The RTA works with all parties involved in a tenancy to ensure they understand their rights and responsibilities to make renting work for everyone.

For more information around tenancy and responsibilities, visit the RTA website or contact the RTA direct on 1300 366 311.

The RTA is a Queensland Government statutory authority that administers the Residential Tenancies and Rooming Accommodation Act 2008. We provide tenancy information, bond management, dispute resolution, investigations and prosecutions, and policy and education services.