January 31, 2013

The ABC of successful property management and real estate in general


The following are some keys words for all agents and property managers in real estate to always remember

A = Attitude
B  = Belief
C = Caring
D = Dedication
E = Excellence
F = Forward
G = Growing
H = Help!
I  = Intelligence
J = Jovial
K = Kindness
L = Learning
M = Marvellous
N = No (it is ok sometimes to say no)
O = Objective
P = Perservance
Q = Quality
R = Rewarding
S = Strong
T = Tenacity
U = Understanding
X = xxxxx
Y = Yell! (in private)
Z = all of the above!

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

January 26, 2013

Natural Disasters and Rental Property Best practice guide



Natural Disasters and Rental Property - Real Estate Excellence

 Disaster Management Best Practice Guide

The following steps are best practice suggestions for licensees and property managers who face flood disasters (or other natural disasters). Consider making an email account that all emails can be forwarded to (such as floods2013youragency@gmail.com or send to one existing accounts.

  • 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)
  • Alternatively ensure two copies are made of any maintenance forms; one to be centralised in one file for follow up and management over coming weeks and months.
  • 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). Where possible, send a generic email to all clients advising of the situation and request communication to be in writing.
  • 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 available from the RTA website (also available on the PME CD – RTA Fact sheets).  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 to medium damage property (or if any doubt), 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. Tenants can also issue a RTA Form 13 to end the tenancy.  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).
  • Ensure all verbal conversations with tenants, lessors and other third parties are recorded in office files; either hard copy file notes or electronic file notes.
  • If your agency is at risk, ensure all files are safe and easily accessable (such as back ups of site and retrievably remotely).

Queensland Legislation – Residential Tenancies and Rooming Accommodation Act 2008

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 (c) 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.

 

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

(c) 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.
 

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

(c) 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)(c) 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.

 
305 Notice of intention to leave if agreement frustrated

 
(1) The tenant may give a notice of intention to leave the premises to the lessor because the premises—

(a) have been destroyed, or made completely or partially 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

(c) have been appropriated or acquired compulsorily by an authority.

(2) A notice of intention to leave under this section must be given within 1 month after the happening of the event mentioned in subsection (1).

(3) A notice of intention to leave under subsection (1)(a) or (b) is called a notice of intention to leave for non-livability.

(4) A notice of intention to leave under subsection (1)(c) is called a notice of intention to leave for compulsory acquisition.

 


Natural disasters (www.rta.qld.gov.au

A tenancy agreement does not automatically end during a natural disaster, even if the property is totally destroyed.

A tenancy agreement will only end if one of the following happens:

·        the tenant and lessor/agent agree in writing

·        the tenant gives the lessor/agent a Notice of intention to leave (Form 13) (or Form R13 for rooming accommodation) or the lessor/agent gives the tenant a Notice to leave (Form 12) (or Form R12 for rooming accommodation)

·        the lessor/agent gives the tenant an Abandonment termination notice (Form 15)

·        the Tribunal makes an order

If either party disagrees with the notice, they can dispute it by lodging a Dispute resolution request (form 16) with the RTA.

After a natural disaster:

·        A premises may be declared unliveable if it is unsafe to live in for health and safety reasons, or if the premises cannot be occupied. Giving notice will end the tenancy agreement from the day the notice is lodged, but must be done within one month of the disaster. See If the premises becomes unliveable for more information.

·        The tenant may be evacuated; however, they must still pay the rent. It may be possible to negotiate a rent reduction for this period but it must be discussed on a case-by-case basis.

·        The rent may be reduced if the property is damaged or if some of the facilities are unavailable (e.g. carpark, pool, laundry). This is also on a case-by-case basis and needs to be agreed between the tenant and lessor/agent/manager and put in writing.

·        You may need emergency repairs on the property.

Fast facts

·        Following a natural disaster the rental market can become competitive but the rent cannot be increased outside of the normal rules for rent increases.

·        A tenant cannot be evicted for one who will pay a higher rent outside of the normal rules for ending a tenancy.

·        The lessor is responsible for maintaining the premises in good repair, but will need to comply with Entry notice requirements when repairs are being done.

·        Bond processing with the RTA could be affected if postal services in Brisbane or in the affected area are disrupted. Contact the RTA for information on extended processing times.

Flood affected properties


A tenancy agreement does not automatically end as a result of flooding, even if the premises are totally destroyed. However, it can be ended quickly if the correct notice is given. Until it is ended, the tenant is still responsible for paying rent.

If the property is unliveable the tenancy can be ended on the day the notice is given.

If a property is damaged, the lessor and the tenant can come to an agreement to reduce the rent until the premises are returned to the condition prior to the disaster. The agreement should be put in writing and signed by all parties. If an agreement can’t be reached then the RTA's free dispute resolution service may be able to assist. Under the Act, tenants may ask for a rent reduction if:

·        the premises are partly unfit to live in

·        if services, facilities or goods to be provided to the tenant are no longer available

·        if the amenity or standard of the premises decreases substantially, so long as the damage was not caused by the tenant.

Cleaning - who's responsible?
The lessor is responsible for the maintenance and repairs needed to bring the property back to a liveable condition, as well as fences, gardens and pools. These repairs need to comply with health and safety laws. The tenant is responsible for removing or cleaning their possessions. Lessors and tenants are encouraged to communicate with each other about the clean-up.

The information provided by Real Estate Excellence is of a general nature only and is not intended to constitute legal advice under any circumstances.  Individuals should consider their own circumstances before proceeding to rely upon any information provided by Real Estate Excellence.  Whilst care has been taken in best practice advice provided, and the information contained in it has been obtained from sources that Real Estate Excellence  believe to be reliable, Real Estate Excellence (including its directors, officers, employees and contractors) does not warrant, represent or guarantee the accuracy, completeness or fitness for purpose of that information. Real Estate Excellence (including its directors, officers, employees and contractors) accordingly does not accept any responsibility, liability, loss or damage whatsoever resulting from the use of the information provided. By using the services of Real Estate Excellence, Clients acknowledge that they have read, understood and accepted this disclaimer of liability. 

 

 

January 22, 2013

Drug labs - best practice advice and training video

There are no specific sections in legislation in Queensland that allow for a tenancy agreement to end due to a drug lab being found at a rental property. However the tenancy may be able to end due to non-liveability provisions of the RTRA Act. This provision is for situations where a property is partly or completely unfit to live in due to contamination.  Property Managers should ensure immediate communication with lessors in the event of a lab being found at a rental property and keep them informed accordingly. Ensure that communication is diarised in file notes and written instructions are sought from the lessor.  Queensland Police generally write to the owner of the property within a certain time frame to advise them that a drug lab has been found at their property. If the lessor has landlord protection insurance, appropriate contact and advice should be sought immediately from the insurer as to coverage and further procedures.

Following are some best practice suggestions as to how to legislatively deal with the situation of a drug lab being found at a rental property.

Breach of Agreement

Depending on the circumstance, the tenant could be breached for standard term 21 (2) of the agreement; using the premises for an illegal purpose plus breached possibly for standard term 26 (1) – not keeping the premises clean and ordered to clean up the property in accordance with national clean up guidelines.

If the tenant does not remedy the breach within the allowed remedy period (7 days), a notice to leave could be issued for not remedying the breach under section 281 of the RTRA Act. The tenants should be provided with the national remediation cleaning guidelines when the notice to remedy is provided.  Visit www.police.qld.gov.au/programs/druglabs for more information and to access the cleaning guidelines.

The tenant could also be given a notice to leave (same day notice) for non-liveability as the property is party or completely unfit to live in. If the tenant does not vacate under this provision, property managers should apply to QCAT for a termination/warrant of possession for failure to leave. This option is strongly recommended.

Option 2 – Urgent Application to Tribunal

Another possible course of action (which is recommended) when a drug lab is found at a rental property is to apply to Tribunal to have the tenancy terminated under the following provisions. The following applications are urgent application as defined in section 415 of the RTRA Act.

·        Objectionable behaviour (section 297 of the RTRA Act)

·        Damage to the property (section 296 of the RTRA Act)

Some landlord insurance providers now have provisions for drug lab clean ups in their insurance policies. Policies and details should be checked with individual insurers. If a landlord refuses to decontaminate and clean their property in accordance with the national clean up guidelines, termination of the management should be provided due to risk management.

This information is relevant to QLD – all other states and territories should check with their own legislative provisions on ways to end the tenancy due to drug labs and seek appropriate advice if required. The clean-up guidelines are national.
To view a half hour training video on Drug lab awareness and education, visit http://www.youtube.com/watch?v=9kJq547V4R8 - the video is relevant nationally.