Click here to view all upcoming training and special events. 

Register at the link below, or email us with name and email address of attendee/s wishing to attend to save the online booking fee;  contact us for more information if required. Terms and conditions of events - Please read here,  or email us prior to booking.

Session topic for below events - The RTRA Act review will be covered during this education and training event with a Q and A session included. Attendees will receive the most up to date information available at the time of the event. QCAT 10 years on will also be discussed, including useful tips for property managers when preparing and presenting at tribunal. QCAT Form 2 urgent and non urgent best practice example will be provided and discussed (rent arrears example and vacate dispute).

Attendees of the Property Management Excellence half day events being held throughout Queensland will be provided the following electronic study notes. Great detailed information regarding what is being proposed, a useful one page fact sheet to provide to lessors, QCAT tips for preparing, presenting and representation. QCAT Form 2 urgent and non urgent example and more.

Bundaberg – Thursday, 2nd April 2020 | Bundaberg Enterprise Centre | Register here

Fraser Coast – Friday, 3rd April 2020 | Hervey Bay Coat Club | Register here

Gold Coast – Thursday, 5th March 2020 | Parkwood Golf Club | Register here

Mackay – Friday, 27th March 2020 | Ocean International Hotel | Register here

Toowoomba – Wednesday, 4th March 2020 | Clive Berghofer Stadium | Register here

Session topic for below events - Breaches of agreement during the agreement – negotiate, communicate and educate

Property managers must master the art of effective communication, negotiation and education during tenancies with their lessor client and tenants. Knowledge of the tenancy laws and procedures is part of effective management and a necessity for today’s property manager.

This education and training event will focus on breaches during the tenancy including not keeping the property clean, damage to property and more. We shall discuss effective communication skills, laws and procedures.

An update on the RTRA Act review will also be included.

All sessions 9.30am to 12.30pm with morning tea included. Register online as per links below (next to location below), or email us name and email of attendees for us to register you manually to save the online booking fee). Scroll down to terms and conditions prior to making a booking.

Bundaberg – 26^th May | Bundaberg Enterprise Centre | Register online here

Brisbane – 12^th May | Kedron-Wavell RSL | Register online here                                                                                

Cairns – 20^th May | Shangri-la Hotel | Register online here

Fraser Coast –27^th May | Hervey Bay Coat Club | Register online here

Gladstone – 4^th June | Yaralla Sports Club | Register online here

Gold Coast – 14^th May | Parkwood Golf Club | Register online here

Ipswich – 2^nd June | Brothers Club Raceview | Register online here

Mackay – 22^nd May | Ocean International Hotel | Register online here

Rockhampton – 3^rd June | Rockhampton Leagues Club | Register online here

Sunshine Coast – 28^th May | Oaks Oasis, Caloundra | Register online here

Toowoomba –13^th May | Clive Berghofer Stadium | Register online here

Townsville – 21^st May | Oaks Metropole Hotel | Register online here

 

Who is liable for an injury to a tenant caused by the state of a property the subject of a residential lease? The landlord? The managing real estate agent? Both?

Yeung v Santosa Realty Co Pty Ltd [2020] VSCA 7 considers a landlord’s delegable duty of care to a tenant and issues pertaining to the apportionment of liability between the responsible parties.

In Issue

• A landlord’s delegable duty of care to a tenant
• Liability for injuries sustained by a tenant under a residential lease
• An agent’s duty to inspect the property and notify landlord of obvious defects

The background

In early 2014, a residential tenant (Tenant) slipped at night on the back stairs of the property she was leasing, causing her to fracture her right ankle (Incident). Relevantly, the stairs had no handrail and were worn, slippery and unlit. The Incident was then reported to the managing real estate agent (Agent) who proceeded to arrange the required rectification works.

The Tenant brought proceedings for negligence in the County Court of Victoria against the owner of the premises (Landlord) and the Agent. It was held they had both breached their duty to the Tenant and were liable for damages - liability was apportioned two thirds to the Landlord and one third to the Agent. The Landlord appealed the decision.

The decision on appeal

The appeal was upheld with the Court of Appeal finding that the Landlord had delegated his duty of care to the Agent and as a result was entitled to a complete indemnification from the Agent.

A central consideration of the appeal was whether the application of the duty of a landlord to take reasonable care to avoid foreseeable risk of injury to tenants can be discharged by the exercise of reasonable skill and care in engaging a real estate agent to take steps to keep the property safe. It was held that such a duty can, in certain circumstances, be completely discharged and delegated to a managing real estate agent.

In coming to this decision, the Court of Appeal made the following critical findings:

1. the Agent’s obligation to inspect and report included identifying and recording visible or obvious risks and reporting them to the Landlord;
2. the Agent breached its duty of care to the Tenant when it failed to carry out an inspection of the stairs as it was bound to do – particularly in circumstances where the risk of slipping was foreseeable and not insignificant, and where there was a risk of a significant injury; and
3. the defects were not latent, were obvious and detection required no specialist expertise. If the Agent had carried out the inspection, it would have identified the defects in the stairs and, upon notification to the Landlord, these defects would have been remedied and the fall would not have happened.

Implications for you

This decision confirms that a landlord’s duty to take reasonable care to avoid foreseeable risk of injury to tenants can, in certain circumstances, be completely discharged and delegated to a managing real estate agent.

For managing real estate agents, it is therefore crucial to understand and appreciate your obligations pursuant to your agreement with a landlord – especially those related to the scope of your property inspections, maintenance reports and required repairs. As this case shows, a failure to adequately perform such duties can attract severe consequences.

Yeung v Santosa Realty Co Pty Ltd (2020) VSCA 7 

Barry.Nilsson. Lawyers - Lachlan Doran 

The Queensland Government released stage one of the proposed amendments to the RTRA Act 16th November, 2019. I have been keeping a running blog since the laws were first looked at being changed in 2012. View the blog, history, developments and more here.In this blog, I am addressing one of the five proposed changes relating to minimum housing standards.

If you agree with my submission below, you are welcome to copy and paste, make any final edits and submit to the Government review by 28th December 2019. Give feedback to the Queensland Labor Government here.

9^th December 2019

I write in response to the Regulatory Impact Statement regarding proposed minimum housing standards.

As stated in my submission during the review in 2018 (further down in this submission), again, it is difficult to provide constructive and meaningful feedback in relation to proposed minimum housing standards as there is little detail provided in the RIS as to what the minimum housing standards mean. By not releasing the actual draft regulation at this point of the reform, Government are greatly disadvantaging investors by not enabling a constructive and fair consultation regarding proposed standards.

Under the proposal, all rental properties in Queensland would need to meet certain standards addressing:

• weatherproofing and structural soundness
• plumbing and drainage
• security
• the standard of repair of fixtures and fittings
• control of pests and vermin
• ventilation, lighting and privacy
• cooking and food preparation facilities

We are also recommending changes to ensure that property owners and managers comply with the Minimum Housing Standards and basic requirements for repairs and maintenance. These include:

• enhanced QCAT repair orders
• an increase in the time allowed for a tenant to return a condition report
• a requirement for property owners to provide key contact details for emergency repairs
• an increase in the value of emergency repairs that can be authorised by a tenant
• a new authority for property managers to approve emergency repairs, if the owner is unavailable

Given section 17A and amended section 185 have been in place since 2017, it is a great concern for transparency and a fair balanced approach, the Government have not released the regulations in draft as part of this stage of the rental reform review. It is hoped to have the draft regulations for further consultation before a Government decision is finalised moving forward.

22^nd October 2018

It is difficult to provide constructive feedback to the “Property condition join the conversation’ discussion of the RTRA Act review when the regulations required to provide the actual definition of the minimum housing standards are not yet available. Given the amendment to section 185 and the introduction of section 17A as at November 2017 are already in play, further detail should be provided to the sector to allow for a more informed feedback. Any proposed and or draft regulations are needed to provide a constructive platform regarding the impact and benefit (or lack of) to the private rental sector in relation to the proposed minimum housing standards. The questions (as per the website below as at 18^th October 2018) are too broad and need further explanation. It is assumed that part of the Government review expectation, is via the feedback provided from tenants, lessors and agents to the questions below, more information will be clarified for the sector moving forward before regulations are introduced.

185 Lessor’s obligations generally

 

(1) This section does not apply to an agreement if—

(a) the premises are moveable dwelling premises consisting only of the site for the dwelling; and

(b) the tenancy is a long tenancy (moveable dwelling).

(2) At the start of the tenancy, the lessor must ensure—

(a) the premises and inclusions are clean; and

(b) the premises are fit for the tenant to live in; and

(c) the premises and inclusions are in good repair; and

(d) the lessor is not in breach of a law dealing with issues about the health or safety of persons using or entering the premises; and

(e) the premises and inclusions otherwise comply with any prescribed minimum housing standards applying to the premises or inclusions.

[s 185]

(3) While the tenancy continues, the lessor—

(a) must maintain the premises in a way that the premises remain fit for the tenant to live in; and

(b) must maintain the premises and inclusions in good repair; and

(c) must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with; and

(d) if the premises include a common area—must keep the area clean; and

(e) must ensure the premises and inclusions otherwise comply with any prescribed minimum housing standards applying to the premises or inclusions.

Note—

See section 217 for the tenant’s obligations to notify the lessor about damage to premises and the need for repairs.

(4) However, the lessor is not required to comply with subsection (2)(c) or (3)(a) for fixtures attached to premises,

and inclusions supplied with premises, (the non-standard items) if—

(a) the lessor is—

(i) the State; or

(ii) the replacement lessor under a community housing provider tenancy agreement; and

(b) the non-standard items are specified in the agreement and the agreement states the lessor is not responsible for their maintenance; and

(c) the non-standard items are not necessary and reasonable to make the premises a fit place in which to live; and

(d) the non-standard items are not a risk to health or safety;

and

(e) for fixtures—the fixtures were not attached to the premises by the lessor.

[s 186]

(5) In this section—

premises include any common area available for use by the tenant with the premises.

Division 4 Prescribed minimum housing standards

 

17A Prescribed minimum housing standards

 

(1) A prescribed minimum housing standard means a standard

prescribed by a regulation.

(2) A regulation may prescribe minimum housing standards for—

(a) a residential premises let, or to be let, under a residential

tenancy agreement; or

(b) a rental premises; or

(c) inclusions for premises; or

(d) facilities in a moveable dwelling park (park facilities).

(3) A prescribed minimum housing standard may be for any

matter relating to the premises, inclusions or park facilities,

including, for example, the following—

(a) sanitation, drainage, cleanliness and repair of the

premises, inclusions or park facilities;

(b) ventilation and insulation;

(c) protection from damp and its effects;

(d) construction, condition, structures, safety and situation

of the premises, inclusions or park facilities;

(e) the dimensions of rooms in the premises;

(f) privacy and security;

(g) provision of water supply, storage and sanitary facilities;

(h) laundry and cooking facilities;

(i) lighting;

(j) freedom from vermin infestation;

(k) energy efficiency.

[s 18]

(4) If a regulation made under subsection (2) makes provision in

relation to a matter and provision is also made in relation to

that matter by, or under, any Act, the regulation—

(a) if not inconsistent with the Act, must be observed in

addition to that Act; and

(b) if inconsistent with the Act, is, to the extent of the

inconsistency, of no force or effect and that Act prevails.

Example of inconsistency between a prescribed minimum housing

standard and an Act—

A prescribed minimum housing standard, that purports to

require a lessor to keep residential premises and inclusions clean

after the start of a tenancy, is inconsistent with the obligations of

a tenant under section 188(2).

(5) A regulation may also prescribe how compliance with

minimum housing standards is to be monitored and enforced.

(6) In this section—

premises means premises mentioned in subsection (2)(a) or (b).

Extract from the review website below.

Property condition

Every Queenslander has a right to live in a safe, secure and sustainable home.

It’s important that rental properties across the state are fit to live in and stay in good repair throughout a tenancy.

Property owners must ensure rental premises and inclusions provide a safe environment for tenants, while tenants have a responsibility to look after the rental property, keeping it clean and in good order.

This week, we want to hear your experiences and ideas about minimum housing standards in a rental property, repairs and maintenance, and energy efficiency options to minimise cost of living.

Every Queenslander has a right to live in a safe, secure and sustainable home.

It’s important that rental properties across the state are fit to live in and stay in good repair throughout a tenancy.

Property owners must ensure rental premises and inclusions provide a safe environment for tenants, while tenants have a responsibility to look after the rental property, keeping it clean and in good order.

This week, we want to hear your experiences and ideas about minimum housing standards in a rental property, repairs and maintenance, and energy efficiency options to minimise cost of living.

• Snap poll
• Join the conversation

• Minimum housing standards

Tell us what you think:

• What do you think are acceptable standards for the condition of rental properties?
• What standards of safety should Queensland rental properties be required to meet?
• What should happen if minimum standards are not met?
• How would minimum standards for rental accommodation impact you as a tenant, owner or manager?

Tell us what you think:

• What do you think are acceptable standards for the condition of rental properties?
• What standards of safety should Queensland rental properties be required to meet?
• What should happen if minimum standards are not met?
• How would minimum standards for rental accommodation impact you as a tenant, owner or manager?

Bottom of Form

• Repairs and maintenance

Tell us what you think:

• What does ‘clean’, ‘fit to live in’ and ‘in good repair’ for rental properties mean for you?
• How could managing the ongoing repair and maintenance of rental properties be improved?
• How can we improve the way in which damage caused to a Queensland rental property is dealt with?

Tell us what you think:

• What does ‘clean’, ‘fit to live in’ and ‘in good repair’ for rental properties mean for you?
• How could managing the ongoing repair and maintenance of rental properties be improved?
• How can we improve the way in which damage caused to a Queensland rental property is dealt with?

Go to discussion

Bottom of Form

• Minimising living costs

Tell us what you think:

• How could energy and water efficiency of rental properties be improved?
• What would encourage energy and water efficiency features to be included in rental properties, like solar panels or water saving devices?

Tell us what you think:

• How could energy and water efficiency of rental properties be improved?
• What would encourage energy and water efficiency features to be included in rental properties, like solar panels or water saving devices?

Go to discussion

Top of Form

Bottom of Form

• Safety

Tell us what you think:

• How can housing design and safety measures be improved in the rental market?
• What reasonable modifications should tenants be allowed to make for safety reasons?

Tell us what you think:

• How can housing design and safety measures be improved in the rental market?
• What reasonable modifications should tenants be allowed to make for safety reasons?

Go to discussion

With the limited information available without the regulations, the following feedback is hereby provided;

Whilst the focus and importance of having safe rental properties is paramount, the cost for compliance to the sector and the possible impact to the private rental market could be catastrophic to say the least to all parties involved, including tenants which may see rents rise to recoup the possible costs to investors.

 Landlords (lessors) already have clear statutory obligations in relation to ensuring properties are safe and fit to live in through section 185. If landlords fail in their obligations, tenants could utilise their many rights to ensure the landlord meets their legislative obligation.  

Tenants already have adequate rights when it comes to maintenance concerns of rental property particularly given the overarching provision of section 185 relating to landlord obligations. They can choose, depending on the situation one of more of the following;

o Breaching the lessor under section 185 of the RTRA Act

o Applying to the RTA dispute resolution via form 16

o If the matter is unresolved, apply to tribunal for an order about the matter

o Apply to tribunal via section 191 if the criterion is met

o Seek a rent reduction under section 94

It is strongly recommended before the proposed bill moves forward in relation to minimum housing standards, more information is provided to the sector to enable a more informed debate surrounding what the Government is proposing to be minimum housing standards for Queensland rental property.

Yours sincerely

Sent via email This email address is being protected from spambots. You need JavaScript enabled to view it.

Stacey Holt

Company Director

Real Estate Excellence Academy Pty Ltd

 

Smoke alarm compliance - time to Act

The Queensland State Governments introduced new Smoke Alarm laws which came into effect on 1 January 2017. The new laws were developed following the recommendations made after the 2011 fatal house fire at Slacks Creek in Brisbane’s south, which tragically claimed 11 lives including 8 children. The full coroners report can be read Here.

Almost 3 years into the new legislation and there has been little action taken to plan ahead for the significant smoke alarm upgrades by the deadline, despite many strata schemes likely requiring a special levy to be raised if upgrade costs are not planned.

To learn about the specific requirements to achieve smoke alarm compliance (ensuring the safety of all occupants) by the looming deadline and how to plan for group works in a strata building with potential to gain cost savings, read on.

The legislation specifies that all homes in Queensland must be fitted with photoelectric, interconnected smoke alarms in all bedrooms and hallways. Photoelectric smoke alarms are more advanced at detecting smoke from smouldering fires, compared to ionisation smoke alarms. The interconnectivity function ensures that if one smoke alarm is triggered, all smoke alarms in the premises will sound, quickly alerting all occupants to the danger.

Below we have provided the answer to a number of common questions surrounding the new smoke alarm legislation.

 Is my smoke alarm photoelectric? 

To ascertain if you have a photoelectric smoke alarm, look on the front, back or inside of your alarm for the words ‘photoelectric’, ‘optical’, ‘photo optical’, or the letter ‘P’. If your smoke alarm does not contain any of these, it should be replaced with a photoelectric smoke alarm.

What types of photoelectric smoke alarms are there? 

You can either have your smoke alarm hardwired into your home’s electrical wiring, or have it powered by a tamper proof, 10-year lithium battery. All smoke alarm systems must be interconnected to comply with the new legislation and will need to be fitted and tested by a qualified electrician.

Can I have both hardwired and wireless smoke alarms? 

The legislation allows for a combination of hardwired and wireless smoke alarms systems, as long as they meet the criteria of interconnectivity. Hardwired smoke alarms are interconnected by the household wiring, while battery-powered smoke alarms can be interconnected by wiring, or wireless radio technology. Check with your smoke alarm manufacturer, distributer, or electrical contractor to see if your smoke alarm is compatible with interconnection.

Where will smoke alarms need to be installed? 

The legislation specifies that photoelectric, interconnected smoke alarms must be installed on each storey, each bedroom, and hallways that connect bedrooms to the rest of the dwelling. If there are no hallways, they must be installed between the bedroom and other parts of the storey, and if there are no bedrooms on a storey, at least one smoke alarm must be installed in the most likely path of travel to exit the dwelling.

When do I need to have the new smoke alarms installed by? 

All domestic properties leased and sold are to comply with the new legislation within five years (2022), while homeowners have up to 10 years (2027) to install the new alarms. All properties built or undergoing major renovations must comply with the new legislation after January 1, 2017 (this also applies to building applications).

What about new or replacing existing smoke alarms?

Any smoke alarm being installed or existing smoke alarm being replaced from 1 January 2017, must also be a photoelectric smoke alarm, which complies with Australian Standard 3786.

 

Who is responsible for compliance? 

There are already concerns from suppliers and the Queensland Fire and Emergency Service (QFES), about a lack of awareness of the 2022 deadline that will apply to approximately 550,000 rental properties in QLD. In the case of strata buildings, there is ever greater concerns that compliance will be left to the individual owners who may ignore the legislation, putting the entire building at risk.

The QFES does not differentiate between separate owners in strata buildings when enforcing fire safety laws and therefore it is the Body Corporate who is responsible for ensuring its unit owners comply by the deadline, despite who is responsible for the cost. The fine will be issued to the Body Corporate who will then need to pursue any non-compliant owners direct.

How can my Body Corporate achieve compliance?

Being proactive will reduce the added cost that will inevitably occur when demand for compliant smoke alarms outstrips the available supply and qualified installers. There is also the potential for special levies if the Body Corporate is required to supply the service to owners who decide not to act, jeopardising compliance for the entire building. Recovery of costs from any individual owners will then need to be pursued by the Body Corporate after paying up-front to gain compliance.

Replacement can be completed by individual owners (or their service provider) at their own cost, who should then be requested to provide written confirmation and evidence that they have made the changes needed. The alternative (recommended) option is for the Body Corporate to offer to complete the smoke alarm changes for all owners and recover the associated costs by agreement.

Supply of service has the likely outcome of 100% compliance and cost recovery relative to owners specific smoke alarm requirements, group savings due to volume and coordinated installation reducing inconvenience. To learn more about supply of service to owners, please read the previously published article detailing the process Here.

A word of caution, a project of this type will require substantially planning and a general meeting of the Body Corporate due to the likely cost of supplying all units with new smoke alarms exceeding Committee spending limits. Therefore, act now and don’t leave it until its too late to plan or negotiate with suppliers of smoke alarms and unit owners who need to be informed about the compliance requirements of the entire building.

Sourced from Smart Strata - article here.

This article was contributed by Grant Mifsud, Partner – Archers the Strata Professionals

In the recent decision of Roden v The Owners-Strata Plan No 55773 [2019] NSWCATCD 61 (Roden Decision), the

NSW Civil and Administrative Tribunal reaffirmed its position that a by-law which entirely bans pet ownership is

“harsh, unconscionable and oppressive” for the purposes of section 139(1) of the Strata Scheme Management Act

2015 (NSW).

In the Roden Decision, the Owners Corporation submitted that their by-law, which entirely banned pet ownership,

should be upheld because their strata scheme was, because of the time it was created, able to adopt the model

by-laws under the Strata Schemes Management Regulation 2010 (NSW) (Former Regulations).

The Former Regulations allowed Owners Corporations to adopt “Option C” which provided that an owner or

occupier of a residential lot could not keep any animal on a lot or on the common property unless that animal was

an assistance animal as referred to in section 9 of the Disability Discrimination Act 1992 (Cth).

Option C was removed as an option when the NSW Government passed the Strata Schemes Management

Regulation 2016 (NSW). Accordingly, new strata schemes who adopt the model by-laws must select a by-law

that allows some form of pet ownership.

The Tribunal found that by-laws adopted under the Former Regulations could still be challenged on the basis

that they were “harsh, unconscionable and oppressive”.

This decision followed the Tribunal’s finding in Yardy v Owners Corporation SP 57237 (2018) NSWCATCD 19,

that a by-law which prevents the keeping of any animal as a pet is contrary to an owner’s basic habitation rights,

their use and enjoyment of their lot and was accordingly “harsh, unconscionable and oppressive”.

A detailed review of the Tribunals findings in the Yardy Decision can be found in our previous article here.

The Roden Decision is important as it opens the door for owners and occupiers in strata schemes who

have adopted Option C of the Former Regulations to challenge this by-law and require their relevant

Owners Corporation to adopt some form of pet friendly by-law.

Sourced from www.holdingredlich.com and www.lexology.com November 21 2019