A property becomes unliveable when it:
- is fully, or partially, destroyed or
- can no longer be used lawfully as a residence
It’s important to consider the liveability of a property on a case-by-case basis. When a property becomes unlivable, there are usually two options – to end the tenancy or to continue the tenancy.
In this episode of Talking Tenancies, we discuss what can happen when a rental property becomes damaged or destroyed with RTA Conciliator Ben Gerwald.
Rental law changes around ending tenancies, renting with pets and the introduction of repair orders commenced on 1 October 2022.
Host - Belinda Heit – Communication and Education – RTA
Guest – Ben Gerwald – Customer Experience – RTA
Host: Welcome to the Talking Tendencies 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.
A property becomes unliveable when it is fully or partially destroyed. Or, can no longer be used lawfully as a residence. It's important to consider the livability of a property on a case-by-case basis. When a property becomes unliveable there are usually two options, to end the tenancy or to continue the tenancy. Today's expert from the RTA is Ben Gerwald from Customer Experience. Welcome Ben.
Guest: Thanks, Belinda
Host: Now, can you tell us about your role at the RTA and what you're responsible for?
Guest: Yeah, well my role at the RTA is a conciliator, so I help guide managing parties and tenants through a teleconference process. This gives parties the ability to reach a mutual agreement over bond and tenancy disputes.
Host: Yes, now today we're talking about when a property becomes unliveable obviously. Now there might be different reasons as to why a property might have become unliveable. In Queensland we're no strangers to natural disasters, and in fact, that could be one of the most common causes of unliveable property, right?
Guest: Yeah that's right, Belinda. It's common for Queensland properties to become unliveable through natural disasters like floods, bushfires, or cyclones. Sometimes a property can become uninhabitable due to an unforeseen event or accident. An example of that, maybe a house fire or a tree falling on the roof. So a third reason though, for a property becoming unliveable is through lack of maintenance. Sadly, some rental properties are not always maintained as required over time, which can lead to long term degradation and damage.
Host: Yeah, so let's dive into that a little bit more. In the event of a natural disaster, what steps should be taken by both the tenant and the managing party in the event of a natural disaster that damages the property? So obviously we also have to consider health and safety issues in returning to a damaged property.
Guest: Yeah, absolutely. Well look, first of all it's super important to make sure that you are prepared in advance. So ahead of the storm season and extreme weather warnings, have a plan for when natural disasters happen to ensure you and your family’s safety. Now after a natural disaster, the tenant and the managing party should talk to each other and discuss the condition of the property to work out what's the next step. Whether the property is livable should be considered on a case-by-case basis. The damage and the destruction of the property are often of different degrees.
Host: So, when a property becomes unliveable whatever the cause or the reason, how do we go about the repairs required and the cleaning that's involved?
Guest: Getting your responsibilities right is really important, and considering the other person's perspective can go a long way as well. I mean, the managing party is responsible for any maintenance and repairs needed to bring the property back to a livable condition. This includes items like fences, gardens and pools. These repairs may need to comply with health and safety laws. And look, the tenant is responsible for removing or cleaning their possessions. This is also why we encourage tenants to insure their own possessions. Tenants may need to make claims for their damages or lost possessions after a natural disaster or unforeseen event. So, it's always good to keep the lines of communication open and keep each other informedduring this time.The rental market can become competitive, particularly after a natural disaster, but rent cannot be increased outside the normal rules.
Host: Yeah, that's one thing we don't think about very often is it? Now as we've said, accidents happen and can sometimes leave a rental property in an unliveable state. What must a tenant and managing party do in this circumstance? Is it similar to what happens in a natural disaster?
Guest: It is similar to what happens in a natural disaster. The tenant and the managing party should talk to each other, discuss the condition of the property again to work out what's the next step. Look again, health and safety considerations must be a priority. There is again the option of ending the tenancy on the grounds of unliveability. Either party can initiate that, or it can be based on mutual agreement, again, having those conversations. Alternatively, the tenant may want to continue living in the property. This would need to be negotiated and discussed with the managing party. If the parties do agree for the tenant to move out while the premises is being prepared and brought back to a liveable condition, remember to document any agreements or changes to the rent and the tenancy in writing. Now, what happens if the tenant causes serious damage to the premises? You know a fire, for example. Same processes, if the tenant does cause that, as in a natural disaster. So again, as we've discussed, just sticking to those processes of parties talking to each other and then focus on returning to the property.
Host: Right, and you know, I guess another reason for a property becoming unliveable could be the lack of maintenance like we mentioned earlier. Sadly, some rental properties are not always maintained as required over time, which can lead to long term degradation and damage. I mean, what happens in that scenario?
Guest: Well, when talking about long term degradation and damage, the tenant and the managing party need to understand their responsibilities in a tenancy. So generally, in a tenancy, a tenant is responsible for carrying out general maintenance of all the inclusions of the property, keeping the premises clean and tidy. Now a tenant is also obliged to notify the managing party about any damages and any repairs or maintenance that could be required on the property. Now a managing party has the responsibility to make sure the premises are in good condition and a liveable condition; you know fit to live in and do not breach any of the other health and safety laws. So, during a tenancy, tenants should address the repairs and maintenance issues with the managing party as early as possible. You know, sometimes repairs do take time with getting quotes, ordering parts if needed, finding a qualified tradesperson and providing notice for entering the rental property at a mutually agreed time. So again, we're just going into keeping those lines of communication open. So, if the repairs are not organised within a reasonable timeframe, after talking to the managing party, the tenant can issue the managing party with a Notice to remedy breach, giving them seven days to fix the problem. So, the tenant should not carry out any of those repairs themselves without written permission. And the tenant should never stop paying the rent to ensure that the that the repairs are being made. So, holding the rent as ransom for those repairs because, non-payment of rent is a breachable offense under the agreement. If repairs and maintenance are not looked after and serious damage or long-term degradations are detected as a result, a tenant should notify the managing party as early as possible and discuss with each other the state of the property and work out what actions need to be taken. Ideally, there should already be ongoing conversations about certain repairs and maintenance work to ensure the premises is fit to live in.
Host: Yeah, exactly right. I mean, and I know some people when they're waiting on repairs they think, oh, I just won't pay the rent, then they might fix it. It doesn't quite work like that, does it?
Guest: It does not, no.
Host: Now, as you mentioned before, when a property becomes unliveable, there's usually the option to end the tenancy or to continue the tenancy. So, what are the rules around ending that tenancy agreement, in this circumstance?
Guest: OK, well it is important to remember that the tenancy does not automatically end when a premises becomes unliveable. A tenancy can be ended due to non-liveability in a couple of different ways. So, the managing party and the tenant could mutually agree in writing. The tenant can give the managing party a Notice of intention to leave on the grounds of non-liveability. The managing party can give the tenant a Notice to leave on the grounds of non-liveability or QCAT makes an order. I mean, if the property has become unliveable due to a natural disaster, the Notice to leave or the Notice of intention to leave on the grounds of non-livability, must be given within one month of the natural disaster, something very important to remember. So, the agreement can end on the date the notice is given, but the person giving me notice may choose a longer notice period, or parties may mutually agree to a different end date. Whatever the decision, remember, put the details of the agreement in writing.
Host: Yes, that's super important.
Guest: I can’t stress that enough.
Host: Remember everything in writing and to communicate. Now, what happens if the tenant wants to stay in the partially destroyed, damaged, or poorly maintained property?
Guest: OK, well sometimes the tenant does want to stay in the property even though it's partially destroyed or, you know, requires those major maintenance works. The tenant should discuss and negotiate with the managing party in this situation. There could be considerations for rent reductions or waivers depending on the situation. The tenant may also want to leave the property and return after the damage has been repaired. Any agreements to waive the rent during this period should be put in writing. So, if the tenant has already been given a Notice to leave by the managing party, but they believe the premises is liveable and can't reach agreement with the managing party, the tenant can request a dispute resolution from the RTA for assistance.
Host: Yeah, and we quite often help people through those situations. So, now, you mentioned that the tenant may be able to negotiate rent reductions if the property is damaged or poorly maintained. Can you tell me more about that one?
Guest: Yeah, sure. So if the tenant wants to stay in the premises or parties decide it is best to continue the tenancy, rent reductions may be considered when services, facilities, or goods included under the agreement are no longer available or amenity or standard of the property decreases substantially. The rent decrease can be negotiated and should be put in writing if this happens. So alternatively, the tenant may want to continue living in the premises but move out while it's being repaired and return once the damage has been fixed. Any arrangements must be negotiated and discussed between the tenant and the managing party. Again, with the agreements put in writing. I know we've mentioned that a couple of times, but I really just want to drive that home for having that in writing. So if parties can't reach an agreement through talking to each other, they can request dispute resolution from the RTA for help.
Host: Yeah, but we'd always recommend self-resolution as our first step.
Guest: First step, yeah, absolutely self-resolution and then think about getting the RTA involved.
Host: Now we know it's important for tenants to return the rental property to the same condition as when the tenancy started at the end of the tenancy, less fair wear and tear. This will help tenants to get their bond back. But with natural disasters, accidents or long-term degradation, sometimes it's not possible to return the property to the same condition. What happens then?
Guest: Yeah, you're right, Belinda. When a tenancy ends, it's really important that tenants and managing parties go through and complete the exit condition report together, if possible, and discuss any issues and find a mutually agreed resolution before the bond refund is requested. So now, in some of these circumstances, for example, if the property has been significantly damaged by fire or floods, it may not be possible to return the condition of the property to a similar standard that it was at the start of the tenancy. The Act states at the end of the tenancy the tenant must leave the premises and the inclusions as far as possible in the same condition they were in at the start of the tenancy, fair wear and tear excepted. So, for example a fire may have affected a portion of the house, but there are other areas of the house that are unaffected. The tenant can still clean or return that section of the house as per the entry report. You know, leaving the affected areas. Again, we need to take into consideration health and safety in these circumstances.
Host: Yeah, and I guess we don't want to recommend that people continue to live in a property that's not safe by any means. Well, it certainly can be a trying time for all parties involved in some of these scenarios we’ve discussed today. And thank you Ben for helping us get a greater understanding of what we need to know when a property becomes unliveable.
Thank you for listening to the Talking Tenancies podcast. For more information about the Residential Tenancies authority, visit rta.qld.gov.au.
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