Host – Belinda Heit – Communication and Education – RTA  

Guest – Adam Busato – Learning and Organisational Development – RTA 

Host: Welcome to the Talking Tenancies podcast. Brought to you by the Residential Tenancies Authority, I'm your host, Belinda Heit. Join me as we explore everything you need to know about renting in Queensland with experts from the RTA and industry. We're here to help make renting work for everyone. 

Special terms can be added to a general tenancy agreement or rooming accommodation agreement to provide guidance during the tenancy on things such as keeping pets, water charging and pool maintenance. Today's expert from the RTA is Adam Busato from Learning and Organisational Development. Welcome, Adam. 

Guest: Thank you for having me. 
 
Host: Now, can you tell us about your role at the RTA and what you're responsible for? 

Guest: Yeah, absolutely. My current role within the RTA is with the Learning and Organisational Development team currently in the quality and training space.

So I train new recruits about all things RTA. I deliver refresher training and upskilling programmes. I provide ongoing coaching, feedback and support to our customer experience service representatives on the phones to ensure the best customer experience is being provided to the sector. I also do occasionally jump on the phones myself to help our customers with essential tenancy info. 

Host: And if you do get Adam on the phone, make sure you say hi and mention the podcast. Now, today we're talking about special terms on a tenancy agreement. When signing a tenancy agreement, what needs to be considered when it comes to special terms? 

Guest: We always tell our customers to read your agreement thoroughly and make sure you understand all the terms and conditions outlined before you sign anything. If there are clauses that you are unclear or you don't understand, don't be afraid to ask questions.

If you don't agree or you want a different arrangement, talk to the other party and see what can be done. It's always better to know what is expected of you and what you can expect before you sign up and are fully committed. At the end of the day, it is a contract.

When it comes to special terms, it is very important that you read through the section and all of the clauses carefully, because they do form a part of your tenancy rights and obligations once you sign that agreement. There is a little bit of a trend where some agencies will actually attach an addendum, or an additional document to the tenancy agreement that contains a full list of special terms.

We do sometimes see in cases where tenants don't understand how important these special terms are and the impacts that it can have on their tenancy. They do sometimes then get caught out after they're committed and signed on. 

Host: Yeah, exactly. I think the other thing that people tend to forget as well as that tenants have the right to add their own items in there as well. 

Guest: Well, yeah, absolutely. So really the special terms are open to negotiation between both parties. If you have a specific clause or term that you're wanting to include on your agreement, by all means you have the right to open up that conversation and ask the questions. 

Host: Talking about misconceptions, what are some of the common misconceptions when it comes to special terms? 

Guest: Yeah, absolutely. Look, there can be a lot, one of the most common misconceptions around special terms is that any clause or term that is outlined can stand up and take effect. This isn't true. You cannot put anything you like in there.

Special terms cannot contradict the legislation or be unreasonable. Anything that contradicts the legislation is actually null and void, and it will not stand up in court. I'll give you an extreme example, something that I've heard myself. 

Host: OK. 

Guest: Let's say if you had a tenancy agreement for a property which included a balcony or patio structure for example, and it required some urgent maintenance. So it's unsafe, right? And upon renewal of your tenancy agreement, a clause is then added in under the special terms that outlines that the property owner isn't liable for death in relation to the balcony.  

Host: What? 

Guest: Yes, this is something that I have heard. Yes, this is a question I've been asked. This clause is void. Because under the legislation, the property owner has an obligation to ensure that that property and all of its inclusions are not in breach of any health and safety laws, and that it is fit to live in. As you can see, a clause like that in the special terms is contradicting what the legislation says, and it would be nullified. 

Host: Also, very dangerous. 

Guest: Absolutely right. You know, it's more common sense at the end of the day, really.

Another common misconception around special terms is that it's part of the contract [therefore] a tenant would have to either take it or leave it. Again, this isn't true, and we did just mention that special terms can change. Clauses are negotiable.

If you don't agree with the term or a condition, or you want a different arrangement to what was outlined already, just open up that conversation with either the property manager or the owner and just see if anything can be changed. We do encourage tenants and the property managers and owners to discuss and negotiate suitable arrangements with each other, and document the agreed arrangement.

It is obviously far better to ensure that you agree to everything outlined in the tenancy agreement, which includes the special terms, before you sign and pay any money. 

Host: Yeah, exactly. And I think that's the theme through this entire podcast, every episode. We say, just talk to people, just talk. 

Guest: Exactly. If you ever have called the RTA, or if you ever do call the RTA, the first thing you're most likely going to hear from us is self-resolve. Talk to the other party. It's the quickest way to get anything sorted. 

Host: Now special terms can be quite granular, can't they? Like, for example, if the special terms include the option to have pets, they can be limited to outdoors. 

Guest: Yeah, absolutely. Some of them can be quite detailed, but it's kind of actually good to provide that sort of clarification, as preferences and habits can really vary from one person to another. What I find reasonable, you might not and vice versa.

Some common clauses that you might find outlined in special terms would cover specific issues such as care or maintenance arrangements for gardens, lawns, trees, hedges, pools, water tanks, light bulbs, smoke alarms, and carpet cleaning.

They can also include utility payment calculation methods and the frequency that that payment is to be made. Limitations on pets such as, you know, where they can be either indoors or outdoors, what type of pet or size is allowed to be kept. And one of the main ones is that potential for a rent increase as well. 

Host: Hmm, so what do you mean by special terms covering issues like potential for rent increases? 

Guest: Yeah, absolutely. That's a very great question. Under the Queensland legislation, there is actually a list of criteria you must fulfil before rent increase can take effect within a tenancy. 

Host: Right. 

Guest: One of those criteria is that a special term of the tenancy agreement states that rent may be increased and what the new rent amount would be, or how it would be calculated and worked out.

If the special term isn't actually in the tenancy agreement, then essentially the property manager or owner cannot increase the rent for the duration of that tenancy agreement. Otherwise, that would be considered a breach of that agreement. 

Host: Exactly. So that's actually really important to know because yeah, you could end up with a rent increase when you shouldn't.

It seems like special terms could cover a lot of property maintenance issues like we were talking about before. Is there anything we should look out for or that could be considered unreasonable? 

Guest: Yeah, look, absolutely. I'm sure that example that we had earlier is maybe falling under the unreasonable.

But look, having maintenance and care arrangements for various inclusions on the premises will really help to make sure expectations are communicated clearly to everyone, and that at the beginning of the tenancy everyone's on the same page about the level and standard of care. These are often items that are not specifically outlined in the legislation, and it is up to both parties to negotiate and agree on these arrangements to what is reasonable and achievable.  
 
I'll just use an example. Let's say that there's a mango tree in the backyard. Can the tenant take the fruit themselves or would the landlord expect to have some of that harvest? It may seem a bit menial to some people, but it is obviously better to talk about these particular scenarios and set the expectations before things go pear shaped (or mango shaped).

One thing to look out for, and this is something everyone should definitely pay close attention to, is that it is actually illegal to have a special term in the agreement that requires or mandates a tenant to purchase goods and services from the property manager/owner or a specific company, or anyone else for that matter.  

This applies to the purchasing of any goods and services, including, but not limited to carpet cleaning, pest control, and pool maintenance. These are kind of the main ones that that generally come to light. We call this contracting out and it's absolutely not allowed.

Property managers and owners can recommend or suggest companies or traders that they trust and would prefer to be used, but that final decision does lie with the tenant on where they purchase those goods and services. Also, be mindful, as you do have the option to utilise these services if you wish.

However, you can still meet a professional level standard clean by doing it yourself. Say if you're a professional cleaner by trade, for example, you could do that cleaning yourself and vacate the property as long as you were returning the property to the same standard it was provided to you originally. That is the expectation to meet, not an expectation set by the property manager or owner. 

Host: Exactly. So yeah, you can't be forced into that. You do have an option. Are there any special terms that would be considered unreasonable in a tenancy agreement? 

Guest: Yes, certainly. So special terms that are kind of borderline on the side of dictating to a resident how they're to live could be interpreted as unreasonable.

An example could be that the owner or agent includes a special term outlining that the resident must clean the premises to a professional standard every week. As you can imagine, that would be extremely disruptive, time consuming and would potentially have a financial impact on yourself as well. And really, who has the time to spend cleaning for that long? I know I certainly don't.

When you have a tenancy agreement, it is, for all intents and purposes, your home for the duration of that agreement. To require a hotel level standard of cleanliness for a 12 month period like this example is just a little bit unrealistic.

There are already sections of the legislation that outlines a tenant's minimum obligations during their tenancy. Realistically, to require them to go beyond this is potentially unreasonable. 

Host: Yes, I know I'm not quite at that level [of cleaning], I don't know about you.  

Guest: Absolutely not.  

Host: Now can special terms be modified on an agreement during the tenancy and if so, how? 

Guest: Yeah, look, that's actually a really great question. So the answer is yes, special terms can be modified during a tenancy agreement. We do encourage tenants and property owners and managers to document their agreed arrangements in writing all the time for everyone's records and the tenancy agreement is a good place to do it if it applies throughout the tenancy

There are a few ways you can modify the special terms during your tenancy, and you could do either depending on, I guess, what situation suits everyone best. One way is you could pull out your current tenancy agreement that you've signed and make those changes in the special terms. You would be required to have all parties listed on that agreement to then sign and date their approval, making sure that then both parties have a copy of that modified agreement.

The alternative to that is that you could simply draw up a new tenancy agreement with all of those changes in the special terms listed, then have all the parties review those changes, sign the updated agreement, and then you would just continue on as per usual. 

Host: That's handy to know because a lot of people don't think you can do that so that's actually quite handy. What happens when a special term is not met by a tenant or managing party? For example, they don't follow what was agreed to. 

Guest: Yeah. If either party doesn't follow what's been outlined in the special terms, which is a part of that tenancy agreement that they signed, then that is actually considered a breach of the agreement.

To resolve the issue, we would recommend obviously first talking to the other party. That's really the first place to start. Just to see if it could be a miscommunication, or a misunderstanding. We are all human at the end of the day. So really, just having that conversation could potentially resolve that for you in one quick phone call or email. And you know, working together in good faith really is the best possible way to get to that sort of desired outcome at the end of the day.

However, we know things aren't always that easy, so if the issue does remain, then you would maybe follow the breach process to keep everyone accountable to what's been agreed upon. Again, it is very important just to make sure any agreements are documented in writing. 

Host: Yeah. Now there's so much to consider when it comes to special terms and they can be for practically anything, within reason. Thanks, Adam, for giving us a great understanding of special terms in a tenancy agreement or rooming accommodation agreement. 

Guest: You're very welcome and I hope to hear you on the phone soon. 

Host: Thank you for listening to the Talking Tenancies podcast. For more information about the Residential Tenancies Authority, visit rta.qld.gov.au.