Get the facts on special terms
The Residential Tenancies Authority (RTA) considers that the Residential Tenancies and Rooming Accommodation Act 2008 (the Act) adequately covers provisions for cleaning and returning the property to standard. Should property managers/owners decide to use special terms they should obtain their own advice on how to achieve these lawfully.
The Act states that tenants cannot be required to buy, or agree to buy, goods or services from the property manager/owner or a person nominated by the property manager/owner.
Tenants are only obliged to leave a property “as far as possible, in the same condition that it was in at the start of the tenancy, fair wear and tear excepted”.
What should I do if my tenancy agreements include special terms that might not be compliant?
Watch this video below for proactive actions you can take to reduce the likelihood of receiving a penalty for non-compliance from the RTA.
The RTA encourages property managers/owners to take proactive steps to correct any non-complying contracts and actions. Any changes should be communicated to their tenants so that tenants understand they are not obliged to provide a receipt or engage a ‘professional’ when vacating the premises at the end of the lease.
Recent case law
A QCAT appeal case in 2019 found that where a tenanted property had been fumigated and the carpets professionally cleaned at the start of the tenancy, a special term in the tenancy agreement requiring the tenant to have the carpets professionally cleaned at the end of the tenancy and the premises fumigated by a professional fumigator was enforceable. The tenant had kept five inside pets at the property, and had undertaken their own carpet cleaning and fumigation treatment at the end of the tenancy.
In this case, QCAT considered the special conditions amplified, but did not intend to modify the terms of the RTRA Act and General Tenancy Agreement.
The Magistrate noted, however, that the position may be different had the carpets not been professionally cleaned at the start of the tenancy, as a tenant is only required to leave the premises, as far as possible, in the same condition that it was in at the start of the tenancy, fair wear and tear excepted.
In March 2018, the RTA successfully prosecuted a property management agency in Townsville Magistrates Court. The Court fined the agency for breaches of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) including unlawful conditions in tenancy agreements that required tenants to have carpets and curtains professionally cleaned at the end of a tenancy. A penalty of $6,000 was handed down with an additional $2,500 for unlawfully entering a tenant’s home.
This judgement set a precedent about the use of special terms in tenancy agreements.