QCAT UPDATE

Friday 4.30pm 15th January 2010 (Australian (QLD) time)

Subscribers to Stacey Holt Real Estate Excellence mailing list received this information earlier this week.

Following is an important update about QCAT (for licensees and property managers)

QCAT has fortunately now allowed for agents to show the PAMD Form 20a (management agreement) and the front page of the tenancy agreement, in lieu of the new QCAT form Application for Leave to be Represented. This is good news for us all, if not a little confusing! But the good news is that the little confusion we’ve had now due to the Tribunal change of position is better than the possible result that the Application for Leave to Be Represented would have had for our industry if it had to be used with every application.
The information below has been supplied by QCAT with some edits made by Stacey Holt Real Estate Excellence for best practice.
“A lessor's right of representation by an agent in a Tribunal proceeding lies in section 206 of the Residential Tenancies and Rooming Accommodation Act 2008 (RTRA Act) and section 23 of the RTRA Regulations. Essentially, provided the tenant has been given a notice of the agent's name and address for service in compliance with section 206(1) then under section 206(3) the agent stands in the lessor's place for 'prescribed proceedings'. Section 23 of the RTRA Regulations defines 'prescribed proceedings'.
QCAT registry practice will be to accept an application made by an agent on behalf of the lessor provided the agent lodges with the application documentation which demonstrates that the tenant has been given notice under section 206 of the RTRA Act 2008. For example, the front page of the tenancy agreement or other document that demonstrates this.
An agent relying on section 206 of the RTRA Act 2008 should come to the hearing with evidence capable of establishing that they have complied with section 206. It would be prudent and best practice for property managers to have a complete copy of the tenancy agreement and any other documents that is relevant to this issue. Such evidence could constitute copies of emails, faxes, prepaid post or details of time and dates of personal service and/or compliance with the receipt of Notice conditions of the agreement. Whether the property manager establishes this to the satisfaction of the tribunal is a question for the tribunal hearing the application and it is not appropriate that a practice direction be issued.
If an agent is unable to rely on having complied with section 206 of the RTRA Act then they must seek the leave of the tribunal to appear on behalf of the lessor. This would mean completing the QCAT form Application for Leave to Be Represented”.
Section 206 of the RTRA Act has been copied from the RTRA Act below
206 Lessor’s or agent’s name and other details
(1) On or before the day the tenant starts occupying the premises, the lessor or lessor’s agent must give a written notice to the tenant stating—

(a) the lessor’s name and address for service; or
(b) if the lessor has an agent who is authorised to stand in
the lessor’s place in a proceeding prescribed under a
regulation (the prescribed proceeding)—the agent’s
name and address for service.
Maximum penalty—20 penalty units.

(2) If a detail mentioned in the notice changes, the lessor or agent
must give written notice of the change to the tenant within 14
days after the change.
Maximum penalty—20 penalty units.

3) If details of the agent mentioned in subsection (1)(b) are given
to the tenant under this section, the agent stands in the lessor’s
place for a prescribed proceeding and, for example—
(a) the proceeding may be taken against the agent as if the
agent were the lessor; and
(b) a tribunal may make an order against the agent as if the
agent were the lessor; and
(c) settlement may be made with the agent as if the agent
were the lessor.
(4) In this section—
address for service means—
(a) for an individual—the individual’s place of residence or
place of business; or
(b) for a body corporate—the body corporate’s registered office or place of business.

Below is section 23 from the RTRA Regulations

23 Proceedings in which lessor’s agent may stand in lessor’s
place—Act, s 206(1)(b)

For section 206(1)(b) of the Act, any application a lessor or tenant may make to a tribunal is a prescribed proceeding.

In addition, refer to standard term 43 of the General Tenancy Agreement

43 Lessor’s agent

1) The name and address for service of the lessor’s agent is stated
in this agreement for item 3.
(2 Unless a special term provides otherwise, the agent may –
(a) stand in the lessor’s place in any application to a tribunal
by the lessor or the tenant; or
(b) do any thing else the lessor may do, or is required to do,
under this agreement

Remember Stacey Holt Real Estate Excellence can provide IN House Training, consultancy and advisory services. I hope this advice has been of help to you and your business.

www.realestateexcellence.com.au