 Hello and welcome to our webinar on special terms in a tenancy agreement. My name is Mark Fiddler and I work in the communication and education team at the RTIA. Before we get started, I'd like to respectfully acknowledge the traditional owners and custodians of this country and their continuing connection with land, waters and culture. We pay our respects to all traditional owners and to elders past, present and emerging. Today we'll focus on the topics listed on the slide. If you do have any questions after listening to the information presented, I encourage you to access the related resources on our website or phone our contact centre. And please note that the RTIA cannot provide legal advice and you are encouraged to seek your own independent advice to make informed decisions. Before we talk about special terms in detail, I'd like to briefly touch on some important activities that occur before a tenancy agreement is in place and quickly run through a few things all parties should be conscious of when preparing for a tenancy. It's important to note that the Residential Tenancies and Rimming and Accommodation Act of 2008 does not cover the selection process or application process and does not apply to actions taken before a tenancy commences. However, landlords and managers should be aware of privacy and anti-discrimination laws which are relevant to the application and selection process. Once the application and selection process is completed, the tenant and less or agent should then consider the tenancy agreement and in particular Section 58 of the Act. Section 58 applies to general tenancies only and states that the prospective tenant must be given a copy of the proposed tenancy agreement before the tenant commits to the tenancy. Before the tenant commits means that before the tenant pays any money or signs or commits to the agreement, they must be given a copy of the proposed agreement. It should be completed except for a name, a start date and any attachment such as body caught with bylaws. Giving the prospective tenant a copy of the proposed tenancy agreement gives them an opportunity to read and understand what the standard terms are, how rent will be paid and set out any special terms. It's also an opportunity to ask questions they have prior to signing the agreement or the commencement of the tenancy. The intent of these sections to ensure that the tenant knows exactly what they're signing up for and the terms they'll need to adhere to during a tenancy before they make a commitment to that tenancy. So before we look at special terms, let's have a quick look at what standard term is and what makes it different to a special term. Part two of the Form 18A, the tenancy agreement, outlines the agreement's standard terms. Standard terms are the terms set out in the Act and accompanying regulations. They must be adhered to and do not change from agreement to agreement. They cover everything from how to pay rent, rules for entry, bottom amounts that can be taken, time frames for notices, and all the rights and responsibility to the tenant unless or an agent must abide by it within the tenancy. Standard terms are important as they provide the rules or guidelines a tenancy would operate under if there was no written agreement in place. Special terms on the other hand are not set out in the Act or regulations. Special terms are terms set out in the agreement in part three of the Form 18A as shown there on the screen and may include things such as rent increases, water charging or garden maintenance. As I mentioned, the tenant should be provided with a copy of the agreement prior to committing to it and this copy should include any special terms that the tenant would need to adhere to. These terms can be negotiated and should be discussed and agreed upon prior to both parties signing the agreement. It's also important to note that as much as special terms are generally set at the start of an agreement they can be added or renegotiated if there is a renewal offered. So both parties should read and discuss any changes that a renewal or extension agreement might include. Reading property managers or agents watching please be aware that any special term you wish to add to an agreement must be drafted by either a party to the contract or by a legal professional. You can add a special term to an agreement provided it has been given to you by a party to the contract or a lawyer. You can make minor changes to special terms. For example, you can update a clause provided earlier by a lawyer to reflect the details of the property. You will need to consider these things and seek your own independent advice especially if an owner is asking you to add a special term to an agreement. We do encourage you to visit our website and listen to the podcast we have produced on special terms. So let's have a look at what can be included as a special term. You can include terms around rent increases but remember you need to comply with rent increase rules under the Act. Water charges, garden maintenance, there might be plants that need watering or garden beds that need weeding. Be thorough and descriptive and talk the tenant through any requirements that you're adding into your special terms. You can state that the home or property is not, can have smoking, or you might have a term about light bulbs and replacements. These sorts of things can be added in special terms before the tenant signs the agreement. Up until October 2022, the Act did not allow professional cleaning or carpet cleaning requests nor did the legislation allow for less laws to request a tenant to have the property professionally pest controlled at the end of the tenancy. This has changed since the pet approval process was introduced to the legislation. If you are allowing a tenant to have a pet at the property, you can now write conditions specific to the pet into the special terms. This may include that the pet remain outside of the house. It may require that the carpet is professionally cleaned and pest control done at the end of the agreement. Similarly, if you are approving a pet during the tenancy and set out conditions as a part of the approval process, these conditions are taken to be included as special terms. Property manager or owner cannot require the tenant to leave the property in a better condition than it was at the start of the tenancy. For example, you can't ask for carpets to be stained cleaned if they weren't done at the start of the tenancy or before the tenant moved in. You can't ask a tenant to purchase goods or services unless, of course, the terms are in relation to pets, as I discussed earlier. You can't ask them to use a specific bond cleaning service or a carpet cleaning service to pay a set fee for bond or carpet cleaning. You'll see the note on the screen regarding contradicting the act. This means that you can't change the intent of the act or a standard term of the act with a special term. For example, you can't change a time frame. So if the act says that you must provide two months notice to end a tenancy, you can't change the notice period to one month. It's important to note that if the agreement does contain a special term that is not consistent with the act, the term is void and not the agreement. As a practical example of this, if an agreement has a term that requires the tenant to have the property cleaned at the end of the tenancy by ABC bond cleaners, then the agreement would continue on the understanding that the term is inconsistent and therefore void and not required to be complied with. If either party does feel that a special term is inconsistent with the act, they can't apply for a determination through QCAP. This is a non-urgent application and would require dispute requests to come to the RTA to start the process. So with all that in mind, let's have a look at an example or an example of an agreement with some special terms written into it and whether they meet the requirements we've discussed so far. Terms one and two are in relation to a pet that has been approved through the application process. As we discussed earlier, if that is the case and the pet was approved as a part of the application process, special terms regarding the approval of that pet can be written into the agreement. In this example, terms one and two would be okay to be included. If the tenant did not agree with keeping the pet outside, they could have negotiated these terms before signing the agreement. As we discussed on the previous slide, adding terms that require professional services or require the tenant to purchase goods or services from a particular company or business or charging for a set fee for something is not allowed. Term two in the example here does not specify an amount or specify a specific company, so it would be acceptable. Term three states a rent increase will take place during a tenancy. There's a couple of things to consider with term three. First, we need to consider how long the agreement has been in place or how long the tenant has been paying the current rent amount. Rent can only be increased once in a 12-month period. So this term may not be valid if the tenant has been paying the current rent for only six months. Then we need to look at what's required for a rent increase term to be valid. If an agreement includes a term allowing a rent increase, the term must state the amount of the increase or how it will be worked out. Term three, as in the example, does not include the amount of the increase or how the increase will be worked out. We're looking for something along the lines of increase by $10 or increase by 5%. Therefore, this term would be considered invalid. Stating due to current market conditions, the tenant will be advised at the time, is not adequate for that term to be reasonable. And finally, term four is also void, as it is inconsistent with the standard term set out in the Act. The Act states a tenant only has to provide 14 days notice to end a tenancy, and this term contradicts that. So therefore, it is invalid also. So what happens to an agreement if a special term is not compliant? We mentioned on the previous slide about terms being void if not compliant, but the agreement continuing. However, in some cases, penalty actions can be taken for the use of invalid special terms. For example, a special term requiring a tenant purchase goods or services a part of the agreement could be considered an offence, and penalty perversions could apply. Again, the tenancy agreement continues, but the term is void, and the tenant could ask the RTA to investigate the lessor agent for not complying with the Act. This is why it's important you're aware of your responsibilities when adding special terms and ensure they do comply with the Act. Remember that if either party feels that a special term is inconsistent, they can apply for a determination through QCAT. As mentioned, this would be a non-urgent application. So if a party does not comply with an agreed and valid special term in the less agreement, they could be in breach of the agreement. This could happen during or at the end of the tenancy. If a breach occurs during the tenancy, either party can issue the notice to remedy breach and follow the breach process. If during a tenancy, either party feels they can no longer adhere to special terms in the agreement, they should discuss this with the other party first before requesting a dispute through the RTA or applying to QCAT. If a breach occurs at the end of the tenancy, this may result in a bond dispute or a loss of bond. Depending on the severity of the breach, the agent may also seek compensation through the RTA. So wrapping up today, we'd like to ensure that you're aware of the many resources available to you. Make sure you sign up for our monthly RTA news email so we can keep you informed of any key topics or changes. You can also follow us on LinkedIn. The RTA produces a range of educational resources, including recorded webinars on tenancy legislation and key topics, as well as our Talking Tenancy podcast series. We have mentioned the dispute process a few times through today's session, and you can see there on the screen a recently released webinar on how to avoid and resolve disputes we would encourage you if you're looking for further information to have a look at that webinar. There is a lot of detailed information regarding recent tenancy changes and you can access all of these through the RTA's website. The links are on the screen. Please reach out to us through our contact center if you need help with your specific circumstances. We would recommend you always download any form from our website to ensure that you are using the most up-to-date versions. That's the end of today's session. Thank you so much for watching. Take care and thanks again for joining.