Articles in Category: Property Management information

Article and information that are of interest to property managers. Note; some articles may be Queensland legislation focused.


Issuing and Giving Notice to tenants via post

 

The following case is of great concern to the industry. Urgent change is needed in relation to calculation of postage when issuing notices to tenants. Paragraph 5 of the case below states that the tenant was not given the correct notice period of 7 days for a notice to remedy breach.

Given the case is an appeal and now a precedent, industry is advised to immediately change their practices when issuing notices with prescribed notice periods such as 7 days to ensure that the 7 day notice is applied. This means when posting on a Friday, add three days for postage to allow for the notice to ‘begin’ and be ‘given’ on the Tuesday to allow for 7 clear days’ notice.

If you are a member of Real Estate Excellence and require more assistance on this matter (or any other matter) please email Stacey Holt.  The Property Management Excellence (PME) manual has had an immediate and extensive update and a new version 1.7.2 is now online for members. Further information and a fact sheet has been emailed to members (10th December 2014).

Marsellos Pike Real Estate v Bate [2014] QCATA 316 (18 November 2014)

CITATION:

Marsellos Pike Real Estate v Bate [2014] QCATA 316

PARTIES:

Marsellos Pike Real Estate
(Applicant)

 

v

 

Rebecca Bate
(Respondent)

APPLICATION NUMBER:

APL401 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

18 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where notice to remedy breach – where insufficient notice provided – where application to terminate tenancy refused – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld) ss 328, 349

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Chambers v Jobling (1986) 7 NSWLR 1
QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41
Cachia v Grech [2009] NSWCA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

[1] Ms Bate was 49 days in arrears of rent. Marsellos Pike Real Estate, acting as agent for the lessor, issued a notice to remedy breach. Ms Bate did not pay. Marsellos Pike issued a notice to leave. Ms Bate did not leave. Marsellos Pike filed an application to terminate Ms Bate’s tenancy. The tribunal dismissed the application.
[2] Marsellos Pike wants to appeal that decision. It says the learned Adjudicator failed to act fairly, failed to consider all evidence before him and failed to make a decision based on all the merits of the case. It says that the learned Adjudicator made his decision on a technicality, without considering the merits of the case in circumstances where he had discretion to waive non-compliance.
[3] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[4] The learned Adjudicator dismissed Marsellos Pike’s application because it did not give the required period of notice in its notice to remedy breach.
[5] Section 328 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) states that the period for remedying a breach of tenancy must not end earlier than seven days after it is given. Marsellos Pike issued the notice on 1 August 2014. As the learned Adjudicator observed[5] ‘issued’ is not the same as ‘given’. Marsellos Pike gave the notice to Ms Bate by positing it on Friday 1 August 2014. The earliest date she could have received it was 4 August 2014. The notice called for the breach to be remedied by 10 August 2014. The learned Adjudicator was correct in finding that Marsellos Pike did not give the necessary seven days’ notice.
[6] The learned Adjudicator was also correct in finding that he had no discretion to waive the requirement of seven days’ notice. The learned Adjudicator pointed out that notice period in s 328(1) of the RTRA Act is mandatory. Section 349 does not allow the tribunal to cure defects in a notice to remedy breach, only a notice to leave. This tribunal has published many decisions confirming that the RTRA Act is proscriptive[6] and the tribunal has no power to waive compliance with its mandatory provisions.
[7] Marsellos Pike misunderstands the effect of s 28 of the QCAT Act. While the tribunal must act fairly and according to the substantial merits of a case, it must also apply the law. Section 28 cannot overcome the proscriptive nature of the RTRA Act.
[8] The tribunal may admit evidence despite non-compliance with any time limit. That is a procedural power. It allows the tribunal to receive evidence, not to cure a defect in the evidence. The learned Adjudicator did admit evidence of the notice to remedy breach but, because of s 328 of the RTRA Act, he could not give it effect.

[9] There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.


[1]QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at 2.
[3]QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[5] Transcript page 1-9, lines 1 – 9.
[6]Lowe v Aspley[2010] QCATA 59 at [10].

Source www.austlii.edu.au November 10th 2014

 

Reducing risk and liability for discrimination claims

There are specific anti-discrimination laws that affect all property managers and landlords throughout Australia. It is very important that property managers are well versed and trained in the laws to protect the agency from discrimination claims and or vicarious liability.

The following tips have been sourced from www.adcq.qld.gov.au

 What can I do about Liability? 

 Risk management needs to take the requirements of anti-discrimination law into account. Real estate agents and other property management businesses may argue and a defence to vicarious liability if they can show that reasonable steps were taken to prevent discrimination, sexual harassment or vilification. Although this will vary, generally reasonable steps should include:

  • development of anti-discrimination and sexual harassment policies

  • education and training of staff (especially managers and supervisors)

  • establishment of appropriate grievance and complaints procedures

  • removal of any discriminatory or offensive materials, rules and practices

Recent rulings and case outcomes in Queensland, other states and at the federal level have shown that an employer's or organisation's obligation does not just involve the introduction of appropriate policies, but also entails ensuring that such policies are positively and actively implemented.

If your agency is a member of Real Estate Excellence and would like more information including notes to use for staff training please contact Stacey Holt via email.

Task management versus Portfolio management

In recent years, task management has become very popular within the Real Estate industry. This may have occurred for a number of reasons such as increasing legislation and demand for increased services from clients. It also may have occurred due to risk management.

 

Of the many agencies I have had the privilege of working with over the years; most have portfolio traditional management with a touch of task. Many successful agencies have created separate roles for leasing, new business and general routine inspections.

Some task operational businesses are now returning to Portfolio Management; why?

 

One of the most common complaints from landlord clients is ‘who is managing my property?’ as the tasks are divided amongst different team members. For task management to really work, the tasks have to be so defined and streamlined to allow for very little miscommunication.

 

Communication and systems is most certainly the key. The trouble with task management for many is that one staff member may speak to the landlord about maintenance, another about account and then another about lease renewals. This may well provide a sense of frustration to landlords when they ask the lease renewal task manager about the maintenance issue and they are unable to answer. Sufficient file notes can mostly alleviate the problem; however there is still a possible element of doubt installed in the landlord mind as to the overall management of their investment. It takes a lot of education of landlords for them to understand how the task business operates and how it does benefit them.

 

For most of us as consumers, we are all so busy and would prefer to deal with one client manager who knows my business as opposed to speaking to three or more etc. in order to have my questions answered.

 

It is certainly not being suggested that task does not work in today’s real estate operation. For task management to be successful, it must be a very smooth well defined operation where each team member understands that although leasing is your role, you may well need to assist a landlord or tenant when it comes to maintenance etc. as opposed to saying that “Maintenance manager will call you back”. This may well be needed sometimes due to the specifics of some cases; however my point is the attitude and service provided to landlord is that we are all managing your investment rather than that is not my department.

 

Portfolio management has long been my preferred way of managing property; however this is not without its own pitfalls and dangers. In days gone by, there have cases of a handful of portfolio managers who ‘hid’ problems within their portfolio only to be found some time later after they had left the business. I must say I don’t believe many of these case were intentional; maybe more due to lack of knowledge, confidence, education and negotiation skills.

 

Portfolio management with a splash of task is ideal for most operations depending on their own business goals and size. If a business is serious about growth and has a business plan for growth, a Business Development Manager is an ideal investment. It can be said that leasing is a specialised role that requires a great deal of time management and selling skills. For some businesses, combining the leasing and new business role is ideal; both roles compliment the other.

 

Administration assistance is a must for most businesses today; there are so many administration tasks in property management that could be handled by a capable assistant or personal assistant to the property manager.

 

Property managers should be just that; managers. They should actually be called people managers given that a large part of the role is the management of landlords, tenants and other third parties such as contractors.

 

There are many critical factors needed for either model to succeed such as

  • Job descriptions for all staff

  • Key performance indicators

  • Weekly meetings

  • Regular reporting

To name the key matters that should be part of the business.

 

One of the key factors regardless of the model used by a Property Management Real Estate Business is the reminder to staff of what our businesses really are; customer service focused. Property is almost an afterthought.

 

Growing the rent roll - tips

Carry out a rental appraisal for every sales listing in your agency with the permission of the licensee. The goal of the agency is to generally sell the property however renting is another option for the client if the property is not selling for a number of reasons. The main reason to carry out a rental appraisal is in the event that the future buyer is an investor; the rental appraisal is ready immediately!

Attend sales open homes where able and work with the sales team to promote the property management business.

Ensure that every sales open home and sales marketing information includes brochures and marketing about the property management department.

Attend sales meeting for ten minutes each meeting to receive any leads.

“Work” with the sales team and encourage open communication and team work.

Ensure a lead generation system from the sales team is implemented in the office.

Extract from Chapter 2.2 of the Property Management Excellence (PME) manual.

 

Domestic violence and rental property

Best practice advice for Queensland property managers

Domestic violence figures in Australia are frightening and many people are affected by this societal issue at some stage in their lives. Information guide to give to tenants who are victims of DV here

There is help available to assist people during this terrible time in their lives. Organisations include DV Connect www.dvconnect.org

  The following best practice advice has been sourced from chapter 18 of the Property Management Excellence (PME) manual QLD

 18.10   Domestic violence in rental property

If a tenant advises the agency of domestic violence with another tenant or party at the property try not to get personally involved. Advise the tenant to seek advice from the RTA. The information below has been sourced from the RTA website www.rta.qld.gov.au. Property managers may wish to visit the RTA website and search domestic violence and provide information to the tenant. Ensure the lessor is advised of the situation and kept informed. The lessor may agree to terminate the total tenancy via mutual agreement (one of the 7 ways to legally end a tenancy in Queensland). Continue reading chapter 18 of the PME manual for more information if required on the ways to legally end a tenancy.

There is further useful information at member online folder 18 domestic violence.

Domestic violence in the rental property

If someone in a rental property is experiencing domestic violence, either from someone they are in a relationship with (including a spouse, partner, family member or carer) or someone they share the property with, they can apply to the Tribunal to:

  • restrain the person who has committed an act of domestic violence from causing further damage or injury
  • remove the name of the person who has committed an act of domestic violence from the tenancy agreement
  • be listed as the tenant, or
  • end the tenancy agreement altogether
  • Fast facts:
  • The tenant should notify the lessor/agent that they are applying to the Tribunal.
  • The Tribunal application can be made if a person living in the property has or is likely to cause serious damage to the property or injury to someone living in the property.
  • A tenant can apply for an order about their tenancy at the same time as applying for to the Magistrates Court for a domestic violence protection order.
  • QCAT: tenants experiencing domestic violence – sourced from www.rta.qld.gov.au

Mar 2016

By Gabrielle Mewing, Adjudicator, QCAT

A quick glance over any newspaper indicates that domestic violence is on the rise in Australia. It is therefore not surprising that there has been an increase in applications to the Queensland Civil and Administrative Tribunal (QCAT) in residential tenancy matters involving domestic violence.

This may be because the victim wants to end a tenancy agreement, or wants to stay at the rented premises and have the perpetrator leave, or wishes to leave and end their legal liability.

The Residential Tenancies and Rooming Accommodation Act 2008 (the Act) responds to domestic violence situations faced by tenants and non-tenants, and by lessors of property where domestic violence has occurred.

What happens when a domestic violence victim is a tenant?

Usually, a tenant cannot escape liability for rent if he or she leaves before the end of the lease. However, a tenant who has experienced domestic violence or who fears future violence may apply to QCAT to terminate the lease without penalty.

Domestic violence is not always physical. If a tenant experiences social, emotional or financial abuse, they may apply to QCAT for termination of their lease if they can show that they would suffer excessive hardship if they had to continue to stay in the property.

What happens when a domestic violence victim is not a tenant?

A person who has experienced domestic violence or who is worried about future violence may apply to QCAT to add their name to a lease or terminate a lease even if they are not named as a tenant on the lease.

A person who lives in a rented property but is not on the lease can apply to QCAT to have their name added to the lease and a tenant’s name removed if the tenant has committed domestic violence against the person. This applies to domestic associates (e.g. partners, family members or carers) and to occupants (e.g. flatmates, boarders). This provides the security of being named as a tenant on the lease, but is unlikely to assist anyone wanting to flee domestic violence.

If a domestic associate living in a rented property wants to flee a violent tenant, they may apply to QCAT to terminate the lease. An occupant who is not also a domestic associate of the tenant cannot apply to terminate the lease.

Can the property owner or property manager apply to terminate a tenant’s lease due to domestic violence?

A property owner may apply to QCAT for termination of a lease for a tenant’s objectionable behaviour.

The lessor may make the application if the tenant has caused a serious nuisance to people living nearby, which may be the result of domestic violence on the premises.

QCAT Domestic Violence Applications at a Glance 

Section of the RTRA Act

Outcome after successful application

Who can apply

245

  • Domestic associate can be named on lease
  • Violent tenant can be removed from lease

Domestic associate (e.g. partner, family member or carer)

246

  • Occupant can be named on lease
  • Violent tenant can be removed from lease

Occupant

297

  • Termination of lease for tenant’s objectionable behaviour

Property owner

310

  • Termination of lease for tenant’s excessive hardship

Tenant

312

  • Termination of lease for damage or injury

Tenant

321

  • Termination of lease for damage or injury

Domestic associate

328, 348

  • Restraining order to prevent further injury, damage or entry onto premises

Tenant, domestic associate

What QCAT is required to consider before deciding an application

In deciding an application, QCAT must consider:

  • Whether the applicant has applied for a Domestic Violence Protection Order (DVPO) against the offending tenant, and its conditions
  • If the applicant is not a tenant, whether the applicant is a domestic associate of the violent tenant, or an occupant (i.e. whether the applicant lives at the premises.)
  • In an application to add a person’s name as tenant, whether the property owner agrees to add that person
  • Whether the evidence proves the applicant has suffered or is likely to suffer domestic violence.

QCAT does not always have to consider the circumstances of the property owner when hearing an application, although it may call for them to be involved in the proceeding.

Evidence needed to support an application

The applicant must provide evidence to substantiate the application. An application is more likely to be granted if QCAT receives relevant evidence, such as:

  • copies of any domestic violence protection orders (DVPOs) in place
  • photos of injury or damage
  • letters, printed copies of emails and text messages that show violence or threats
  • witness statements
  • police report
  • bank statements showing financial hardship
  • proof of occupancy.

When making an application to QCAT, applicants must ensure they name all parties on the lease. The offending tenant should be named as respondent. The property owner or property manager should also be named as respondent.

Property owners or property managers seeking to terminate a lease because of objectionable behaviour must ensure they include all named tenants as respondents.

How QCAT reaches a decision

The tribunal will not automatically grant an application for modification or termination of a lease because of domestic violence. The tribunal will exercise its discretion after carefully considering the application and the evidence presented.