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QCAT: tenants experiencing domestic violence

Apr 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 lessor or agent apply to terminate a tenant’s lease due to domestic violence?

A lessor 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
Lessor
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/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.