It has been a terrible time for many these last few weeks; particularly property managers in Rockhampton, Emerald, Dalby, Chinchilla and Bundaberg.
Real Estate Excellence has been assisting some property managers with procedures and recently sent the following to Members. To assist whole of industry, I am publishing the material in the hope that it is of benefit to those greatly affected. Thoughts are with them…
Flood Disaster Management Best Practice Guide
The following steps are best practice suggestions for licensees and property managers when faced with flood disasters when managing rental property.
Start a separate disaster management journal (such as January floods 2011) for entry of all reported damage and incidents of properties managed. This could be kept either electronically or in a paper based manner; as long as it is easily accessible by all staff. Also ensure appropriate diary notes and paperwork are placed in computer software and the property file. Draw up six columns to record the following;
Date
Property
Damage reported and by whom
Insurance policy number (once advised by lessor)
Action taken
Task completed (once all works are finalised)
Direct staff who are taking phone calls from tenants and any notification of damage that the incident is to be recorded in the disaster management journal.
Prioritise the damage to property and tenant situation and work on the highest priority first and make your way through the list.
Contact lessors of known property damage and advise of the situation. (further information is below on procedures).
Contact tenants of suspected flood damaged property and the tenants of property who have reported damage. Provide them with the RTA Fact sheet on Natural Disasters. If the property is completely unihabitable, advise the tenant that the tenancy most likely will lawfully end. Advise that discussions will be needed with the lessor prior and more information will be provided. If the property is not completely unlivable and has only sustained ‘minor’ flood damage, advise the tenant that the lessor will be contacted to discuss the matter further.
In regards to the tenant’s own property being damaged, advise them to contact their personal contents insurance company. Regrettably some tenants will not have their own personal insurance; in this event, advise tenants that the lessor will be advised and all attempts will be made to ascertain if the lessor’s insurance will cover the situation. In most cases, the lessor’s insurance will not cover the tenants belongings.
There is no legislative duty for lessors to provide tenants with alternative accomodation in times of natural disasters; however this may be recommended in some cases as a sign of good faith however many lessors may not be in a situation to afford this option. Lessors may wish to contact their insurance companies to identify if there is any coverage for this situation.
The Residential Tenancies and Rooming Accomodation Act 2008 (Qld) RTRA Act allows for tenancies to either end (if completely unliveable) or rent decreases to be negotiated, in circumstances of partial non liveability.
Contact lessors accordingly and advise the current status of their property and that more information will be provided where required and when obtained. Provide lessors with the RTA Fact Sheet on Natural Disasters – link supplied on page five of this guide. If the property is not liveable, advise the lessor that the RTRA Act allows for the tenancy to end on the same day. If the property is partially unfit to live in and/or has suffered minor damage, advise the lessor of the provisions of the RTRA Act which allow for a negotiated rent decrease during the period of repair. (see section below)
Advise lessors to contact their insurance companies (contents, building and landlord insurance) to report the incident and to start the process of making a claim. Advise lessors to start the claim paperwork process.
Advise lessors to provide the following information in writing to your agency
the insurer, contact phone details (email and phone number) and name of contact (if possible)
the insurance policy number;
the claim number and
the insurance paperwork (mostly completed) for finalisation once required works are carried out.
Explain to lessors that due to the large volume of properties and people affected, all communicaton to be in writing in regards to this matter.
Contact the agency preferred tradespeople/contractors in regards to high priority jobs and allocate work. Follow up the contact with a written work order. In high damage property, contact the insurer for advice before proceeding.
Assess progress of high priority work daily until tasks completed. Keep in regular communication with lessors and tenants as to progress and for great customer service. Ensure the disaster management journal is maintained.
Once the majority of the works are considerably under control, arrange for routine inspections to check on properties that have had minor damage. Ensure photos are taken, extensive visual reports are provided to lessors and take action as appropriate (such as advising lessors to make insurance claims for particular cases)
Following are the relevant sections from the RTRA Act for rent decreases and ending the tenancy due to non liveability (agreement frustrated). The relevant provisions are highlighted via shading below. Ensure the RTA Form 12 Notice to Leave is conmpleted to end the tenancy lawfully and that any rent decrease agreements are completed in writing. Obtain lessors written instructions and provide an agreement with the tenant in which they should sign. The agreement should allow for how much the rent will decrease by, and for how long. Also ensure is made in the agreement for when the rent is to go back to the orginal agreement amount.
If agreement cannot be reached for the rent decrease amount, complete the RTA Form 16 Dispute Resolution and seek mediation assistance. If dispute resolution is not successful, the matter may need to be referred to Tribunal as a non urgent application (within 7 days of the unsuccessful dispute resolution number being provided by the RTA).
Section 94 – RTRA Act
94 Rent decreases
(1) This section applies if the premises—
(a) are destroyed, or made completely or partly unfit to live
in, in a way that does not result from a breach of the
agreement; or
(b) no longer may be used lawfully as a residence; or
© are appropriated or acquired compulsorily by an
authority.
(2) This section also applies if—
(a) services, facilities or goods to be provided to the tenant
under the agreement are no longer available or are
withdrawn other than because the tenant failed to meet
the tenant’s obligations under the agreement; or
(b) the amenity or standard of the premises decreases
substantially other than because of malicious damage
caused by the tenant.
(3) The rent payable under the agreement decreases accordingly
or, if an order for a decrease in the rent is made by a tribunal,
to the extent stated in the order.
(4) A tribunal may make an order for a rent decrease only if—
(a) the tenant applies to the tribunal for the order; and
(b) if this section applies because of subsection (1)—the
premises are partly unfit to live in.
Section 329 – RTRA Act
329 Handover day for notice to leave for premises that are not
moveable dwelling premises
(1) This section applies only to notices to leave given for
premises that are not moveable dwelling premises.
(2) The handover day for a notice to leave given by the lessor
must not be earlier than—
(a) if the notice is given because of an unremedied breach
and the breach is a failure to pay rent—7 days after the
notice is given; or
(b) if the notice is given because of an unremedied breach
and the notice is not a notice to which paragraph (a)
applies—14 days after the notice is given; or
© if the notice is given because of noncompliance (tribunal
order)—7 days after the notice is given; or
(d) if the notice is given because of non-livability—the day
the notice is given; or
(e) if the notice is given because of compulsory
acquisition—2 months after the notice is given; or
(f) if the notice is given because of a sale contract—4
weeks after the notice is given; or
(g) if the notice is given because of ending of entitlement
under employment—4 weeks after the notice is given;
or
(h) if the notice is given because of ending of
accommodation assistance—4 weeks after the notice is
given; or
(i) if the notice is given because of ending of housing
assistance—2 months after the notice is given; or
(j) if the notice is given without ground for a periodic
agreement—2 months after the notice is given; or
(k) if the notice is given without ground for a fixed term
agreement—the later of—
(i) 2 months after the notice is given; or
(ii) the day the term of the agreement ends.
(3) Nothing prevents a notice to leave under subsection (2)(k)
being given at any time before the end of the term of the fixed
term agreement.
Section 284 – Notice to Leave if Agreement Frustrated
284 Notice to leave if agreement frustrated
(1) The lessor may give a notice to leave the premises to the
tenant because the premises—
(a) have been destroyed, or made completely or partly unfit
to live in, other than because of a breach of the
agreement; or
(b) no longer may be used lawfully as a residence; or
© have been appropriated or acquired compulsorily by an
authority.
(2) A notice to leave under this section must be given within 1
month after the happening of the event mentioned in
subsection (1).
(3) A notice to leave under subsection (1)(a) or (b) is called a
notice to leave for non-livability.
Editor’s note—
See sections 329(2)(d) (Handover day for notice to leave for premises
that are not moveable dwelling premises) and 330(2)(d) (Handover day
for notice to leave for moveable dwelling premises) for requirements
about the handover day for a notice to leave given because of
non-livability.
(4) A notice to leave under subsection (1)© is called a notice to
leave for compulsory acquisition.
Editor’s note—
See sections 329(2)(e) (Handover day for notice to leave for premises
that are not moveable dwelling premises) and 330(2)(e) (Handover day
for notice to leave for moveable dwelling premises) for requirements
about the handover day for a notice to leave given because of
compulsory acquisition.
RTA Fact Sheet on Natural Disasters
Download the RTA Fact Sheet from http://www.realestateexcellence.com.au/education-and-training-events-real-estate-excellence/cat_view/36-queensland-compliance-and-legislation/6-residential-tenancies-authority-rta or www.rta.qld.gov.au
Members requiring further advice or assistance
Platinum EXCLUSIVE, Individual Platinum EXCLUSIVE and Gold SOLE Real Estate Excellence Members are encouraged to email or phone Stacey Holt anytime if more advice, information or support is required;
Email stacey.holt@realestateexcellence.com.au Phone 0423 018 539/07 3161 1865
Non – Members requiring further advice or assistance
Contact the RTA on 1300 366 311 during business hours or visit www.rta.qld.gov.au
© Stacey Holt Real Estate Excellence – www.realestateexcellence.com.au
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