Advertising Rental Property and Special Terms (QLD)

The Industry traditionally has advertised rental property very generically. A growing concern and issue that is starting to catch the industry out is that special terms are not referenced in the marketing of the rental property. Tenants are starting to query at sign up items such as carpet cleaning, pest control or the charging of water. They are disputing the fact that special terms were not referenced in the marketing therefore should not apply; they may well have a point.

Standard terms 1 to 44 of all tenancy agreements in Queensland are the law and non-negotiable and must form part of every agreement. Special terms however are additional terms that are not standard terms and do not contract outside the Act. Special terms are not generic so to speak; however for some it may appear that way.

The RTRA Act requires that tenants be provided all terms of the agreement prior to being bound. They must also be given a copy of the tenancy agreement (section 58) prior to monies being taken or being bound to the agreement.  There are other disclosure requirements such as rent payment methods are to be disclosed and if there are costs to pay via rent payment methods, tenants must be given a written document prior to the tenancy commencing outlining an estimate of costs that may associated by using that payment method.

It must be said that the PAMD Act (soon to be Property Agents Act) also requires transparency of all agents including property managers and also requires that tenants be treated honestly, fairly and professionally.

Best practice is to include in all marketing of rental property that special terms apply for the property. Actually listing the special terms is more than ideal. The application form is also a perfect place to disclose in writing to the tenant what the rent payment methods are.

 This information is current as at 28^th June 2011.

If you are a Platinum Elite Member, Gold Priority Member or a Professional Elite Individual Member of Real Estate Excellence and require further advice this issue (and any other agency matter),  please contact Stacey Holt. If you are not a Member of Real Estate Excellence, please contact your education provider or the RTA – 1300 366 311 for further advice if required.

(c) Real Estate Excellence Academy Provides General Real Estate Industry Best Practice Advice and Services only.

What can admnistrators/receptionists do in a Real Estate Agency without being registered? (QLD)

A common question asked is when do I need to ensure my staff member is registered with the Office of Fair Trading? What if they are a receptionist and not actually a property manager or salesperson?

The current Property Agents and Motor Dealers Act (section 161) below sets out what a person can do without being registered salespeople. (Note that this is the only certificate name for those in property management, commercial and business broking).

161 Pretending to be real estate salesperson

(1) A person must not act as a real estate salesperson unless the

person holds a registration certificate (real estate salesperson).

Maximum penalty—200 penalty units.

(2) A person does not act as a real estate salesperson only because

the person, while performing duties as an employee of a real

estate agent at the real estate agent’s registered office or other

place of business—

 (a) collects, and issues receipts for, rents; or

(b) gives a person a list, prepared by or for the real estate

agent, of premises available for rent; or

(c) does something of an administrative nature in relation to

a thing the real estate agent does as a real estate agent.

(3) In this section—

act as a real estate salesperson, for a person, includes hold

out that the person is a real estate salesperson.

  

Please note that the future Property Agents Act (soon to be introduced) will have the same provision in Section 109.

If you are a Platinum Elite, Gold Priority, or Elite Professional Individual Member of Real Estate Excellence and require more best practice advice on this matter (or any other industry matter), please contact Stacey Holt.

This information is current as at 23^rd June 2011.

(c) Real Estate Excellence Academy Pty Ltd provides best practice advice and services only.

www.realestateexcellence.com.au

Water Charging and Rental Property (QLD)

Tenants cannot be charged water consumption charges unless the property is individually water metered and there is a term on the General Tenancy Agreement allowing for water charging (section 166 of the RTRA Act).

If the premises are individually metered, the property is water efficient and the agreement states that an amount or all water consumption charges are payable by the tenant, the tenant can be charged for total water consumption charges. Please note that there is no requirement at law for a ‘water compliance certificate’ or ‘plumbing certificate’ as such; it is up to the lessor to disclose to the agency whether there property is water efficient as per the requirements set out in the RTRA Regulations. Best practice is to obtain this disclosure in writing from the lessor client.  It is best practice to advise lessors that if there is a dispute in regards to water efficiency at their property, evidence of compliance will need to be provided to the tenant or the Tribunal.

If the property is NOT water efficient, but does have an individual water meter, tenants can only be charged a reasonable amount of water consumption charges.  The General Tenancy Agreement must allow for this provision in Item 12.2, plus a special term. Section 169 (4) of the RTRA Act sets out what the Tribunal must have regard to when there is a dispute regarding water charges;

(4) In deciding an amount payable by a tenant for outgoings for a

water service charge, the tribunal must have regard to the

following—

(a) relevant available information about water usage and

charges for premises in the local government area in

which the relevant premises are situated;

(b) the area of the relevant land;

(c) any terms of the agreement affecting the amount of

water used;

 (d) the presence or absence of water saving devices in the

premises;

(e) the number of persons occupying the premises;

(f) the quantity of water for which the lessor should

reasonably be liable;

(g) anything else the tribunal considers relevant.

If you are a Platinum Elite Member, Gold Priority Member or a Professional Elite Individual Member of Real Estate Excellence and require further advice about water (including Tanks), please contact Stacey Holt. If you are not a Member of Real Estate Excellence, please contact your education provider or the RTA – 1300 366 311 for further advice if required.

(c) Real Estate Excellence - www.realestateexcellence.com.au

RTA (QLD) policy on receiving faxes

 Below is response from the RTA - www.rta.qld.gov.au as at 20th June 2011 in relation to faxing of RTA documents to the RTA.

The general policy is that we require original signed forms for processing bond transactions – lodgements, refunds, transfers, changes to lessor/agent or shared bond arrangements and agent signature records. I believe that this was relaxed for a short time during the floods to enable more efficient processing. For a short time where we did not have access to faxes and the mail was disrupted we accepted scanned and emailed forms.

In RBS there are cases where we accept documents by fax or email (with signatures remaining as the primary means of client verification). Some of these include:

·        Returned Notices of Claim – agreeing to the claim so that payments can be released

·        Amendments to forms required during processing – case by case

·        Withdrawal of signature

·        Direct Credit and Email Notification Statement of Agreement  - from agents to have payments

·        Advice of bank account details (usually tenants or lessors)

This information was provided to Real Estate Excellence www.realestateexcellence.com.au

Best Practice Forms Available * from Real Estate Excellence

Real Estate Excellence provides 5 Membership Options for the QLD Real Estate Industry. There are many benefits in being a Real Estate Excellence Member. Below are the Best Practice forms currently available from Real Estate Excellence for Platinum Elite Members; all other Members receive select forms. For more information about Membership, which starts from only $11 per week including GST please visit the website OR email Stacey Holt - stacey.holt@realestateexcellence.com.au

Residential Property Management

Acknowledgement Receipt of PAMD Form 20a (for lessor)
Acknowledgement Receipt of Tenancy Documents (for tenant)
Acknowledgement Receipt  NO Pool Safety Certificate ( tenants of units only)
Acknowledgement Receipt V Pool Safety Certificate provided (for tenants of houses and units)
Consent to use Electronic Communication tenancy agreements
Lease renewal instruction form (for lessor)
Smoke alarm risk management and best practice advice for agency
Fire safety evacuation plan and information (for tenants)
Comparative Market Analysis for Rental Property
Best practice Tenancy application form
Risk Management Tenancy processing form
Routine (General) Inspection Report
Property management interview questions (recruitment)
Completed Best Practice Form 11 for rent arrears, illegal use of pool and smoke alarms
Routine Maintenance/Tenant Request Form including best practice procedure and policy to be provided to tenants and lessors
Attachment to the Management Agreement outlining Fees, Commissions and Charges
Explanatory Notes to Lessor (PAMD Form 20a)
Property Management Listing Form
Assignment of Appointment (Transfer)
Daily and Weekly Planner
Pool Safety Laws  A Fact Sheet for Lessors
Business Development Weekly Report
Rent Arrears Cover letter
Rental Bond Information Sheet
Open Homes Booking Form
Rental Appraisal Cover letter
Suggested scripts for new business
Tenancy Vacate Letter (when Form 13 is provided to them)
Daily and Weekly Planner
Routine Inspection cover letter for lessor
Vacating tenant cover letter for tenant
Consent for Open Homes
Consent to the use of Photographs or Images showing tenants belongings to be used for advertising
Sign up document explaining key provisions of the Agreement and the RTA Form 17a

Residential Sales and Auction

Acknowledgement Receipt of PAMD Form 22a (for seller)
Acknowledgement Receipt Community Titles (for buyer)
Acknowledgement Receipt House and Land (for buyer
Acknowledgement Receipt Warning Statement; House and Land (for buyer)
Acknowledgement Receipt Warning Statement; Unit Sale (for buyer)
Direction statement to buyer (Unit Contracts)
Direction statement to buyer (House and Land Contracts)
Acknowledgement Receipt  Pool Safety Certificate provided (for buyer/bidder)
Acknowledgement Receipt  NO Pool Safety Certificate provided (for buyer/bidder)
Advertising copy approval form (for seller)
Change of price instruction (for seller)
Consent to use electronic communications
The Sustainability Declaration a best practice advice for agents
The Sustainability Declaration a best practice guide for sellers
Tips for sellers who are unrealistic about price
Attachment to the Form 22a Seller Disclosure
Daily and Weekly Planner
Prospective Seller Enquiry Form
Prospective Buyer Enquiry Form
Advertising Headline Suggestions
Consent for Open Homes - Rental Property
Consent to the use of Photographs or Images showing tenants belongings to be used for advertising Rental Property
Consent for Onsite Auctions - Rental Property
Written evidence of listing appointment for tenants - Rental Property
Neighbourhood Disputes Resolution Act (tree and fencing laws) seller disclosure requirements

Other

Employment Register
Pool Safety Laws Best Practice Guide; sales, auction and property management
Social Media Policy
Complaints Register
Attachment to a complaint response (as required by the Property Agents Act)
Public notice required by the Office of Fair Trading
Complaint Handling Requirements

*All best practice forms are included as part of Platinum Elite Membership and are provided in word and some in PDF version via disk. As forms are updated, Members are emailed new versions accordingly. Select forms are available to all Members.
Best practice forms can be designed upon written request for Platinum Elite Members.
www.realestateexcellence.com.au

The Importance of passing on Maintenance and Risk to the Landlord Client

Real Estate Excellence received a call from a Member recently in relation to the following situation;

·       During a routine inspection in May, it was noted by the Property Manager that several floor boards were loose. The tenant advised the Property Manager that she will fix it and not to worry.

·       The following week, a visitor to the rental property sustained an injury due to one of the loose floor boards. The injury caused was facial and the visitor has since had to get medical treatment including X-Rays.

·       The visitor is now stating that they will be taking action against the agency for negligence.

·       The Licensee for the Agency has been advised to notify their professional indemnity insurer immediately for further advice

The key questions here are

·       Did the property manager pass the known risk to the lessor clearly and seek instruction?

·       As this was a safety risk, was instruction for repair sought for immediate rectification?

·       If the agency cannot prove this occurred, they may be in a higher risk situation in this case due to alleged negligence.

Real Estate Excellence has best practice policies, forms and procedures to assist in effective risk management in regards to routine maintenance. All Property Managers are encouraged to ensure that there are effective systems in place for sound risk management in relation to maintenance and routine inspections. Private training and consultancy services are provided by Real Estate Excellence.