 Thank you for joining in today's webinar on the topic of breaches and entry in a general tenancy. We have a large volume of attendees in today's session and that's over 800 attendees. So I understand your knowledge on this topic will vary from being quite advanced to order to be quite limited. My name is Lynne Smith. I'm a Senior Community Education Officer with the RTA. I've got over 30 years experience dealing with tenancy laws and situations between landlords and tenants. Welcome to today's webinar. In today's session we will be covering the rules around entering a rental property, the time frames for notices, compliance in relation to entry, the breach process including common breaches and time frames. We'll also have a look at what to do next options when a breach is not rectified and at the end I will answer the questions that you have submitted during the session. You can submit questions by writing in the question box and sending them through. Just depending on the time I will answer what I can answer at the end of the session. However, if I do not address your question or your matter is urgent, please contact our call centre on the 1300 36311 number after the webinar is over. So just a reminder that the call business of the RTA is to administer the act which is the residential tenancies and rooming accommodation act 2008. We provide tenancy information, manage bonds, offer a free dispute resolution service, investigate breaches of the penalty provisions of the act and also have a policy and education service. Our role is to provide information and services to all people involved in a tenancy across Queensland whether you're the landlord, agent or a tenant. So the first part of today's webinar is going to be talking about the rules of entry. And just a quick reminder that all our RTA forms can be downloaded or ordered on the RTA's website. The form 9's purpose is to inform the tenant of the entry by the lesser or agent or another authorised person. The form requires details of the person who is issuing the notice and also the person or people who are entering their name and their contact phone number. Item 6 states the date and time of the entry. If it is the owner or manager that's entering say for a routine inspection you can nominate an actual time or you can nominate a two-hour period of which the entry will occur. Note that the two-hour window doesn't apply for tradespeople. The lesser agent can enter only between 8am and 6pm but cannot enter on a Sunday or public holiday unless the tenant agrees. When it comes time to serving the notice or issuing the notice if the general tenancy agreement states that there's an agreement to serve by email then you can do so but otherwise you're going to need to be the posting or hand delivering to the rental property. Remember notices must be cleared days so for example if you're issuing a notice for a routine inspection by post you're going to have to allow the post or time as well as the seven days required in the act. Remember to keep a copy of the notices that you've served and any documentation of any phone conversations or diary notes that may have taken place between yourself and the tenant particularly if there is an agreed entry. So where do you find out more information about the rules of entry? Under the acts sections 192 to 201 outlines the rules for entry including reasons for entry what notices is to be served and the minimum timeframe for issuing of notices and to when the entry can occur. I'm going to just pause for a moment and I'm going to launch a poll just to gauge the experience in today's session so just bear with me. Today's poll is what is your level of knowledge on the entry rules? A. Limited knowledge. B. Know the times and reasons as listed in the entry notice. C. Your reasonable level of most areas of the legislation or D. Strong knowledge of the legislation. I'll just allow just a moment for everyone just to complete that poll. Great thanks everyone I'll just give you the outcome of today's poll just to let everyone know the experience that we have. 9% said that they have got limited knowledge. 20% say that they know the times and the reasons listed on the entry notice only. 49% they said that they've got reasonable level of most areas of the legislation and 15% of strong knowledge of the legislation. So thanks everybody for participating in that. So let's have a look at the reasons why you would want to enter a property and the notice period required to be given to a tenant. To inspect on a routine inspection you need to give a minimum of seven days notice. You can enter at a specific time or enter within the two hour period. Just to give you the example if I sent an entry notice and state that I'm entering between nine and eleven the entry has to occur during this time. It doesn't state how long I can stay in the property. I could enter at nine o'clock I could still enter at five to eleven but I could not enter before nine or after eleven. For repairs and maintenance or to check if a repair has been done or to enter to comply with the smoke alarm and safety switch legislation that requires a minimum of 24 hours notice. If you are showing a prospective purchaser or a tenant through the property if it's up for sale or up for re-letting then a minimum of 24 hours notice is required and if evaluation is to be done again 24 hours notice is required. If you have reasons to believe the property has been abandoned then you can issue a notice with 24 hours notice to enter and check if it has been abandoned. If there has been a significant breach and you're going back to check that the breach has been rectified that requires a minimum of 24 hours notice as well. While we'll be talking about a significant breach process shortly so I'll leave that one a little bit longer. If the tenant agrees then you can enter it's done at a time that has been agreed between you and the tenant. We would recommend keeping some evidence that it was an agreed entry. If there's an emergency or you believe on reasonable grounds that you need to enter to protect the premises then you can enter and you do not require to give a minimum notice. As an example of this this would be like a storm damage or to secure the premises. It could be a burst pipe causing flooding to a lower floor apartment that needs to be addressed urgently. If that's the case obviously communicate with the tenant let them know what's going on but there's no minimum requirement you can actually enter. As a significant breach process contains entry and the breach process I will outline the steps to follow for this process and what a significant breach is. So under section 192, section 2 outlines what a significant breach is. It is exceeding the number of occupants using the premises for an illegal purpose, keeping a pet where pets were not allowed or any other matter that if the reasonable cost to rectify it exceeds one week's rent. So can I just note that if you are doing an inspection and someone hasn't done the laundry or the dishes are not done and there's a bit of a mess there it's not deemed to be a significant breach. So as an example if you have issued your entry notice for routine inspection you've provided the minimum of seven days notice plus any applicable serving time. When you do the inspection if you find something that is that significant breach as I've mentioned earlier you can issue a form 11 breach notice requiring the tenant to rectify the situation within a minimum of period of seven days. If within the two weeks the expiry of the date of the breach notice you can actually enter by giving a minimum of 24 hours notice to see if the breach has been rectified. As I said that notice period must be done within the two weeks of the expiry of the breach notice. If the rental property is to be sold the tenant needs to be informed this in writing and that's on a form 10 no less or intention to sell. The form will also inform the tenant of the sales strategy and must be given to the tenant before any entry can occur to show a prospective purchaser. If the for an entry to occur to show prospective purchases the tenant must be also issued a form nine. If the renting agent and the selling agent are different then it's a requirement for the selling agent to provide a copy of form nine for each inspection for the renting agent unless it's been otherwise agreed. So the less or agent must not allow a prospective purchaser to enter the premises without being accompanied by the less or all the agent and again unless the tenant agrees. The tenant must agree to an in writing for an open house. An open house cannot occur if they have not agreed. So section 203 has penalty provisions attached and that's 20 penalty units. I am going to talk about compliance shortly so I will provide some cases on that as well. The tenant must agree in writing to use photos to advertise where it contains the tenant's possessions or belongings and again this particular section has penalty provisions as well. On a side note that if a property does go on the market for sale that is the property is advertised and also the less or agent shows prospective purchases through. If this process occurs within two months of a tenant moving in on a fixed term the tenant can give two weeks notice and vacate without any penalty. This is under section 307. This does not apply if the tenant was advised prior to moving in or signing the agreement that the property was for sale. So I'm just going to have a look at some what if scenarios and questions we are quite often asked including some that's actually been submitted today. So I think one of the main ones that's come through has been in relation to if the tenant's not home and if the tenant refuses. So let's just have a look at those options. So the first one if the tenant's not at home the answer is if you have followed the rules in accordance to the act and you've issued the required notice in the correct time frame then you can enter even if the tenant's not there. If the tenant has changed locks under the legislation sections 210 to 213 talk about keys and locks and more stuff the locks have changed the other party must be given a copy of the key. So I'd refer you to these particular sections where the locks have been changed. If the tenant refuses and this is sometimes it actually happens even through our dispute area communication and negotiation is going to be the key to resolving the situation firstly finding out why. So asking questions as to why you know you've been refused you know there may be the tenant may actually have a valid reason or a reasonable excuse so for example they might be having a family member that's ill or it's best that the tenant's home due to a pet being on the property then if that would be the case then negotiating another day or time probably would be suitable. However if you have someone flatly refusing constantly and you have shown them the act and the reasons why you can enter and you have correctly issued the notice if you cannot communicate and negotiate another date or time you can apply to the RTA's free dispute resolution service for assistance if it's not resolved again then after that you could also apply to the tribunal to gain entry. If you arrive and find other people living there that are not tenants that are not the actual tenant on the agreement firstly you're going to probably again ask questions to ascertain the situation it could be that there is more than the approved occupants on the agreement then this would be a breach if it is the tenant has left without any notice and changed over to someone else you would contact the tenant named on the agreement and confirm if they have left and end the agreement before you can actually start a new one. You can also see whether or not it's a sublet situation and there are rules around subletting. If you've arrived at the property and it is abandoned and you have no doubt that there is evidence that they have gone then you have two options you can issue a form 15 and abandonment notice to the property giving seven days notice to end the tenancy or you could apply for an urgent application to the tribunal on the grounds of abandonment but I would say best idea is to take photos as evidence and maybe speak with the neighbors. There are rules around abandonment and also more so in particular with any goods or documents that's left behind. It's really important that all parties involved in a tenancy to build and maintain the tenancy relationship to avoid disputes and keep those lines of communication open. Just like to take the opportunity just to bring attention to our compliance and investigations section of the RTA section 202 is unlawful entry of the premises. This states that the less or lesser agent must not enter the premises that must not enter the premises in contravention of the rules of entry and if the rules have been changed by the tribunal that's also one of the other parts of the sections as outlined under 192 to 199. This section has penalty units attached and also can be taken quite serious as an offence of the act. I'll just share a couple of recent court cases with you where we have taken agents to the courts then because they have breached this section of the act. So there is a lot of it there is information about these particular cases on the RTA's website and I would welcome you to view those particular stories. One agent was a Brisbane agent was fined in court for unlawful entry and one count of unlawful special terms in agreement. The penalty was $10,000 and a criminal conviction was recorded. There was a North Queensland agency was fined $2,500 for unlawful entry plus a further $6,000 for unlawful special terms. So both of those stories as I said are available on the RTA's website under the newsroom section and I'll welcome you to actually read those particular articles. With our investigations if a complaint is substantiated by an RTA investigator then we can either A provide education, an issue a warning letter and just monitor the situation. We could also issue a penalty infringement notice known as a PIN. I guess this could be seen as similar to like a speeding ticket it's usually a smaller amount compared to a prosecution or we could commence a prosecution. With a prosecution if you have breached the penalty provisions of the act and there are around 125 sections that have penalty provisions the RTA can prosecute and this matter is a criminal matter it's taken before the magistrates court it's not a QCAT matter. So for real estate agents or companies the director must be advised and the representative must have authority to bind the company and the RTA would recommend that you seek your own independent legal advice so whether that's being a penalty infringement notice that's been issued or if it is a prosecution and you've been notified. So I just wanted to talk about the second part of today's webinar which is dealing with the remedy breach notice process. So just before I do continue I will actually launch another poll just bear with me. So this poll what we're looking at is what is the main reason you issue or receive breach notices? So the first one is rent arrears, noise complaints, unauthorized occupants or pets, repairs not being carried out or other. So just give you a moment just to go through that poll. Great thanks everybody and just to give you an idea of the percentages so we have today's 87 percent for rent arrears, three for noise, four percent for unauthorized occupants or pets, one percent for repairs not done and four percent for other. Thanks everybody well we'll just keep going with the webinar on the remedy breach sign things. So what is a breach? A breach is a term of the standard or special term of a tenancy agreement and the breach can be done by either the tenant or by the less or the agent. I briefly outline key sections of legislation regarding breaches. So section 280 states that the less or agent believes on reasonable grounds the tenant has breach and the section 301 states that the tenant believes on reasonable grounds the less or agent has breach. The breach must be in the approved form and must allow for the period of time to rectify the breach which in most situations in general tenancies will be seven days. The common types of breaches that we do see are rent arrears, noise issues, the breach by the tenant in interfering with reasonable peace, comfort and private of neighbors and that's outlined under section 184. Unauthorized pets, unauthorized occupants, damage to rental premises and the less or agent not carrying out repairs and maintenance. With this topic I would refer to the less or general obligations as outlined under section 185 of the Act where it states that the less or must ensure the premises and inclusions are clean, fit for the tenant to live in and good repair and not in breach of any health or safety laws. This section then continues to say that while the tenancy continues the less or must maintain the premises and inclusions in good repair. So when the breach has occurred you can issue a form 11, a notice to remedy breach. For this example I've chosen a rent arrears process so if the tenant has fallen seven days behind in rent on the eighth day you can issue a breach given the tenant a minimum of seven days to rectify the breach. In the slide you'll see in item five it's important that you complete this as to the date the rent is paid to, the number of days rent is overdue and this is as of the day the serving of the notice and the amount due. This amount is the amount that is due at the time of serving the notice not rent that's going to be due during the period of the breach. On this notice you'll also see the method of issue so whether that's by email, post or in person remember notices are clear days and if you're posting a notice refer to Australia Post website for their posting times relevant to the type of posting and the area because you will need to add that time frame to the notice. So when posting you may find that again depending on the type of posting you are adding you may need to add an extra two to six business days. If you are serving notices by email ensure that you have an agreement on the tenancy agreement and that the box is ticked along with the email address for serving. We have been asked can I send it by a scan text message by phone text messaging is not an approved method of serving you must serve by an approved method which is your email, post or in person we know some people send a reminder by text that they've served a notice but that is not the original source of service and that probably answers quite a few questions that's come in today's session as well. Section 299 and 315 outline the repeated breach process so section 299 if the tenant has breach and 315 for the less or if they have breached. If two breach notices have been issued and a third breach occurs within 12 months then you can apply for an urgent application direct to QCAT the tribunal to terminate the tenancy on the grounds of repeated breaches. It must be for the same breach and on each occasion the breach the previous breaches have to be rectified in full and it is recommended to read these sections and look at the seriousness of the breaches as well. To provide you with an example so if a tenant did not pay rent and the rent breach process was followed where the tenant rectified the payment required within the time frame this has occurred twice and then on the third occasion the tenant falls behind in rent you can apply directly to the tribunal no notices are actually issued. If a tenant had a party one weekend and caused neighborhood disturbances the breach is issued they don't party within that seven-day time frame that means that the breach has been rectified. If this happens twice and as said both times have been rectified on the third occasion again you could apply directly to the tribunal no notices have been issued directly to the tenant on that third time. Again the RTA recommends communication between lessor agents and tenants and making sure that everybody understands their rights and responsibilities under the legislation. So if the breach is rectified obviously that no further action is required nor no further action is going to be taken if it's not rectified there's options available so what to do next. Communication as said before with the tenant and discuss options or if it's a lessor's breach a tenant to communicate with them if the outcome is in relation to a payment plan or any other agreement say a compensation amount then put that agreement in writing and everyone has to sign it. It could also be that there's an agreement for something to be fixed by due date again put that in writing and everyone signs it. It is also known that there's some community organizations out there that will offer assistance to help tenants sustain their tenancy and get involved financially. These organizations vary and also depends on the locations. So tenants could also refer to their local rent connect officer which is through the Department of Housing and Public Works for assistance. If the next step is to end the agreement you may issue a notice to leave or a notice of intention to leave. I've listed the sections to follow. As an example if I if it is that you fail to rectify a remedy breach and then it is seven it is then seven days noes to leave. If it is for any other breach it's the 14 days noes to leave. So if the tenant does not leave then you would then be applying to QCAT the Tribunal for Termination Order and a Warrant of Possession. There are rules in how a tenancy can end and must be in compliance with the legislation. So for that I'm going to refer to section 353 which states ways of recovering possession of the premises. If you take back possession other than a way that's authorized in the Act there is penalty provisions attached to that section. If you cannot resolve the matter you can also apply for assistance through the RTA's free dispute resolution service. As said there are some options that are available depending on the situation and the type and the seriousness of the breach what action you may require to take. So when it comes to dispute resolving disputes the RTA recommends three steps to resolving tenancy matters. Self resolution, communicating and trying to resolve the matter yourself directly with the other person. Applying to the RTA's free dispute resolution service by completing and signing a form 16 dispute resolution request. The RTA will then view the dispute and see if parties will participate in a conciliation process. It is a voluntary process so we cannot force parties to participate however we will encourage it. We then can organize a telephone conference with the other party involved and try and resolve the matter. The role of the conciliator is impartial and they're not there to take sides. The decision of the outcome belongs to the parties who are actually involved in the dispute. If it's not resolved then it can progress to the tribunal for an outcome. If the matter is an urgent matter as outlined under section 415 you can go straight off to QCAP the tribunal. All other matters deemed non-urgent as outlined under section 416 must go through our dispute resolution process first and keep in mind that if it's not resolved through the dispute process some of the notices when applying to the tribunal may be time sensitive with their application. Just one comment I will add is what is when it comes to serving any notices to remember to ensure that you have followed the correct rules and time frames. If matters proceed to a tribunal the areas that you need to be mindful of is that if you have allowed the right amount of notice particularly with breaches and any notices issued that you have allowed clear days and you can demonstrate how that notice was served. So if you are hand delivering to the letterbox then you would want to put down the date and time of delivering the notice and maybe even consider a photo of delivery as evidence or a stat deck. Only served by email if the tense agreement is ticked to agree to have the notices served that way and list the email address for service on the agreement. If you're issuing by mail that you have followed the correct mail time remember to refer to the Australia Post website and look at whether you're sending it by express priority or normal mail. Remember you cannot issue another notice or take action until the expiry of the date of the notice and that time is actually going to be midnight. So if a notice to remedy breach expires on the 1st of June you cannot issue a notice to leave or take action until the 2nd of June. For any other tense information contact the RTA our 1300 36311 number and talk to our client service team or you can go to the RTA's website. We have a lot of information there resources videos publications and all our forms are available as well. You can order the entry and the breach notices from the RTA's website or give us a call and we can send them out to you. Look we've got a lot of questions that's come through today and I'm just going to take some time now just to quickly answer some of those questions and I'm just a bit conscious of the time as well. So we have covered a lot in today's topic and I know that some of the questions that have come through I have actually addressed that with some of the content. So one of the questions is just clarification on giving notice to a tenant when a property is sold and it's coming to the end of the fixed term. Is four weeks still okay? The quick answer is actually no. Two months no without grounds to end a fixed term. The four weeks notice period is only applicable on a periodic tenancy. So the tenant has to be on a periodic tenancy to issue because on the grounds that the property has been sold. If the tenant is on a fixed term it's come to the end of the fixed term it's going to be two months no without grounds. If the as I said when property has been sold the four weeks only apply when it's a periodic tenancy. If you issue a breach with seven days rectified damage and you know it's going to take them longer do you just add more time? Look the legislation outlines seven days is the minimum. This does not stop you from giving a tenant more time on the breach notice. So you may choose 10 days or 20 days the legislation only outlines the minimum time frames. Just another question here. Is there a time frame that you have to issue a notice to leave after a breach expires? In the legislation there's actually not it's not listed. There is no time frame in between the two notices however it would need to be issued within a reasonable time. What would that be? Could it be the next day or within a week? Possibly yes. If it's in a month's time or longer then that possibly may not be reasonable. It really comes down to the seriousness of the breach however I will point out that there's a time frame however from when you issue a notice to leave when that's expired to when you have to apply to the tribunal then that's a two week time frame. So that's really important to understand that. If you intend to apply to the tribunal you need to ensure that that's done within that two week time frame otherwise the tribunal may choose to dismiss your case and you'll have to start again. Thanks everyone for your questions. As I said if I haven't had a chance to answer them please again contact our 1300 number and those I will try and see if I can address them personally after the session. Quick three question surveys now just going to pop up and if you could just stay online and answer those quick questions. We're looking to know what sort of topics you're interested to know about you know which will actually help us tailor some future webinars. Thank you again everybody for your attendance and thank you again for completing those polls for us. The webinar will now end.