Belinda Heit – Communication and Education – RTA

Antonella Spatola – Dispute Resolution Team – RTA

Host: Welcome to the Talking Tenancies podcast brought to you by the Residential Tenancies Authority (RTA), 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.

In this episode we look at what happens when a tenant leaves the property unexpectedly. It may be that a sole tenant or co-tenant has died. The property has been abandoned or the tenant is unable to return to the property. Today's expert from the RTA is Antonella Spatola, Conciliator in our Dispute Resolution Area. Welcome Antonella.

Guest: Thank you.

Host: Can you tell us about your role at the RTA and what you're responsible for?

Guest: Sure, so for the last eight years I've been a conciliator in Dispute Resolutions. As a conciliator, we mediate between two parties, usually an agent with a tenant, and we avoid basically the parties going to tribunal. So, we mediate a constructive conciliation so parties can reach a mutual agreement.

Host: And I know you have very challenging yet rewarding role here at the RTA. Thank you so much for what you do. So sadly, at times there are situations where a sole tenant passes away. What happens to their tenancy when this occurs?

Guest: Look, it is a reality. It's something that we don't talk about. We don't want to think about, but it's something that we need to know what to do if this happens. So, if a sole tenant dies, the tenancy ends two weeks after either the tenant’s representative or the property manager or owner gives written notice of the end of the tenancy and that's because of the tenant's death.

Now also alternatively, the end of the tenancy date may be negotiated and decided by the property manager or owner, and the tenant’s representative or relative. It may also be decided by QCAT which is the Queensland, Civil and Administrative Tribunal following an application by the property manager or the owner. Now, if none of this occurs, the tenancy agreement ends one month after the tenant's death for both fixed and periodic agreements.

Host: Right, so if the sole tenant does not have a representative or a relative to manage their affairs, what happens to their bond and their belongings?

Guest: It is a reality that there are some tenants that don't have an a next of kin, so something for a landlord or an agent to be aware of is things like personal documents, which include money, birth certificates, or family photographs and these things must be given to the tenant’s representative.

Now, if they can't be contacted, the personal documents must be given to the Office of the Public Trustee within seven days of the end of the tenancy. Now, if the property manager/owner are in these situations, they have to make reasonable efforts to contact the tenant’s representative about these items so you can contact the person and make a time that suits both of you. There are no rules about this, but come up with some solutions as to what day and time and time frames that suit you both.

Now, if there are goods that are valued, you have to determine their worth. An item that may appear to be junk to us can actually be valuable. If the property manager or owner intends to dispose of these items or sell the goods left behind, a record of these items should be kept. So, make a list of the items and keep the photos if there are any, in a safe place. In case of any issues in the future, you have a record of what you have done and what you have stored.

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Host: So, if a co-tenant passes away and the tenancy continues, what happens to the deceased tenant’s bond contributions?

Guest: In this case, if a co-tenant dies, the tenancy continues without change, so the remaining tenant is going to take charge and further communication is going to continue with the agent or the landlord.

Now it's important to remember that the co-tenant cannot claim the deceased bond’s contribution. It can only be claimed by the deceased estate. If there are any debts that have been incurred by the deceased tenant, they will need to be dealt with by the property manager or the owner.

Host: So, what happens when you want to move in as a new tenant after a previous tenants passed away.

Guest: OK, so communication is really integral in these situations as it can happen. So, if all parties agree, and you're the agent or the landlord, the tenant can follow the same process of changing the bond contributor and the leaseholder, and that can be done through the official paperwork supplied by the RTA and filling out the forms correctly and having everyone sign them.

Host: Great, so what if the landlord dies during a tenancy?

Guest: And it does happen. So, if a landlord dies, this doesn't automatically end the lease. In this case, the landlord's legal representative or next of kin, takes on the landlord's rights and responsibilities under the existing tenancy agreement. It's important for the tenant to keep paying the rent. The lease agreement still stands, so don't stop paying the rent. Nothing changes if your landlord passes.

Host: So, what else do I need to know? If I find myself dealing with ending a tenancy because a tenant has died.

Guest: OK, a few things. When a tenant dies, it can be extremely stressful for everyone involved. Especially if it's something that wasn't planned and life as it happens is unpredictable, so it's very important to think of how to be compassionate and understanding in these situations.

If you're the next of kin and it's your relative that passes, as an agent or landlord, it's important to note to be more compassionate and empathetic to the next of kin that has to deal with their loved ones passing. So being aware of very raw feelings and emotions, keeping language very neutral and being compassionate does help with the next of kin dealing with the tenant that has passed.

I guess dealing with the logistics and all the paperwork does make things a little bit easier if you don't push the next of kin who is dealing with their emotions to deal with the situation. Now, if you're the landlord, you may be missing out on income, so there's financial pressures over the loss of income because of the tenant’s death. So, there are belongings, and particularly if the next of kin doesn't live nearby, the landlord now has to deal with what to do with the tenancy and with the belongings that are at the home.

As I said, legislation is written words. It's easy for the tenant or agent or landlord to call the RTA's call centre and find out what to do in these situations. But what the legislation doesn't have in writing is things that humans have intrinsically, and that is emotion, so take into perspective that in these situations everyone has a stake, everyone's dealing with a situation that they haven't seen coming, and compassion and empathy is really important, especially in stressful times like this.

Host: Exactly, so if the managing party of a general tenancy hasn't been able to get in contact with a tenant and they aren't paying their rent and their belongings are gone, what can they do?

Guest: So, the lessor or agent may serve an entry notice where you give 24 hours notice to enter the premises for an inspection, if you believe on reasonable grounds that the premises have been abandoned.

Many factors could be considered reasonable grounds for believing a property has been abandoned - rent not being paid or not having belongings there in the house are two of the most common reasons that we see at the RTA. So, the keyword here is ‘reasonable’. Find out if the rent’s being paid and/or if the belongings are gone.

Host: So, at what point can a managing party attempt to terminate the tenancy due to abandonment?

Guest: So, if you're the lessor or the agent and you believe on reasonable grounds that the premises are abandoned, you must formally end the agreement before they can take possession of the premises and deal with any property left behind by the tenant.

There are two ways to end the tenancy agreement for abandonment. The first one is that you can apply to the Tribunal, so QCAT, for an order saying the premises is abandoned. This way it's recommended if there is doubt whether the premises are abandoned or not, you have the adjudicator who will make that call.

The other way is if you're the lesser or the agent, you can give the tenant an abandonment termination notice. Now this notice should be served to the tenant in the usual way, such as by mail or hand delivered to the premises. A notice can be sent via e-mail when the tenant has agreed to receive electronic notifications in the rental agreement. So, if you have been communicating by e-mail, continue doing that.

If the tenant does not apply to the tribunal within seven days to have the notice set aside, then the tenancy agreement will be ended seven days after the date the notice was issued.

Another note, if the former tenant wants to dispute that they have not abandoned the property, they can apply to tribunal within 20 days after the date of the order, for the decision to be reviewed. So, if the tribunal is then satisfied that the premises were not abandoned an order for compensation for expenses incurred by the former tenant may be made.

Host: So, when we look at rooming accommodation, if a tenant abandons rooming accommodation, the rules are slightly different aren't they?

Guest: Yeah, that's right. So, in rooming accommodation the agreement ends. Once the rent paid has run out, meaning that our termination notice does not need to be served.

Host: So, what happens if the tenant has disappeared? They're not paying the rent, but their belongings are still in the property.

Guest: Can be quite tricky, so here's what to note. The tenancy agreement must have ended before you can do anything with the goods. Personal documents such as passports and birth certificates, photographs and money found on the premises must be given to the tenant’s representative or the Public Trustee within seven days from the date the tenancy agreement has ended, or the documents were found.

After the tenancy agreement has ended, what happens to the goods depends on their value. The landlord may be obliged to store high value belongings from between one to three months. After this, the goods can be sold at auction and of course there is more information on the website. What I want to add to this as well is that what you believe is valuable is very subjective. So, if you're not quite sure, get some advice from people around you.

Host: OK, so let me give you a scenario, Antonella. I'm a tenant and I'm not able to return to my rental property due to a change of circumstance, life happens. What do I need to do?

Guest: Communicate, you must always inform the property manager or the owner in writing of your intention to leave. And what I would add to that as well, if you're going to e-mail the agent or your landlord, check request for confirmation that they received your e-mail.

So, what happens next depends on the agreement you have come to with your property manager and what type of rental agreement you have. Some of the options include - that you and the property manager or the owner mutually agree in writing to end the agreement early on a specific date. That is very important to note. You both need to have in writing exactly the day that you're going to end the agreement. Make sure you always keep a copy for yourself. 
The other way is to give the property manager or the owner a Notice of Intention to Leave and to leave the property.

Now in that case you may need to pay compensation, but that is up to you to discuss at the time. The other option is to get your property manager or your owner's approval to transfer your interest in the property. If you have paid a bond, you will need to fill out a change of bond contributor, and again, that form is on our website.

The other option is to apply directly to QCAT to end the agreement due to excessive hardship. Now you need to have evidence to support this application. Just because you believe you are experiencing excessive hardship, that definition may be different at QCAT, so don't take it for granted because you're experiencing hardship because of financial issues. Ultimately, it will be QCAT that will decide if that is the case. Again, communication is key, so please make sure you have a very honest conversation with your managing party to work out the best option for you both.

Host: Wow, so really to wrap it up Antonella, we really encourage all parties to try and treat each other with respect and compassion, particularly at such a sensitive time. Open communication really is the key when it comes to anything to do with a rental agreement and all parties should try and work together to come to that best possible arrangement for everyone concerned.

Guest: Exactly.

Host: Well, I think we know exactly what to do now when, you know, sadly a tenant passes away or a landlord, or they just disappear for some reason. So thank you so much for joining us today, Antonella.

Guest: Thank you.

Host: If you want to find out more information, jump on our website rta.qld.gov.au. 

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