Balancing the scales of property rights: improving security of tenure for Queensland tenants – how and why

ABSTRACT

Housing is a primary requirement of life and so home ownership remains the ideal for most people. However, not everyone is able to, or wants to, own their own home. These individuals depend upon rental accommodation as their form of home tenure with the number of individuals and families who live in rented accommodation steadily increasing. Ensuring that residential tenants have security of tenure for their home of choice is a right in many jurisdictions but not in Australia. Focusing on the Queensland position, the author examines the current lack of security of tenure experienced by private residential tenants in the context of the recently announced Queensland Government review, and in doing so they highlight matters requiring government attention. The article concludes by recommending changes to existing laws to improve security of tenure for tenants; as well as providing interim measures that may be adopted both long term and prior to finalisation of the current review.

KEYWORDS:

• Housing tenure
• residential tenancy
• security of tenure

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Similar provisions exist in the other Australian jurisdictions. For example: s.94 Residential Tenancies Act 1997 (ACT); s.65 Residential Tenancies Act 1987 (NSW); s.90 Residential Tenancies Act (NT); s. Residential Tenancies Act 1995 (SA); s. 42 Residential Tenancies Act 1997 (Tas); s.261 Residential Tenancies Act 1997 (Vic) (noting, however, that current Victorian regime is to change in 2019 – see discussion that follows under Solution); and s. Residential Tenancies Act 1987 (WA).

2. For a discussion of the difficulties that tenants faced under the previous regime, see Wharton and Cradduck (2011) p. 41.

3. The issue on appeal was not the finding about retaliation but the lack of power of the Adjudicator in the particular circumstances to award the tenant compensation.

4. The tenant’s dispute resolution application was lodged before the notice to leave without ground was issued and therefore did not comply with the strict requirements of s.292(3) RTRAA [12]. However, in that case the notice itself also was not valid [15]-[18], which had no impact for the decision per se as the application was brought by the tenant in trying to have the notice set aside as being retaliatory, rather than the landlord in seeking to have the tenant evicted. The Adjudicator, however, cautioned the landlord if they sought to rely on the defect notice in any future action by it [18].

5. Gathered from informal conversations with past and present residential tenants who voluntarily and spontaneously shared their stories upon discovering the authors’ research interest. The author both listened and encouraged them to participate in the current review.

6. 46 Lessor’s notice about when option to renew or extend must be exercised(1) This section applies if a retail shop lease provides for an option on the lessee’s part to renew or extend the lease.(2) At least 2 months, but not longer than 6 months, before the option date, the lessor must give the lessee written notice of the option date.(3) In this section –option date, for a retail shop lease, means the date under the lease by which the lessee must exercise an option to renew or extend the lease.

46AA Renewing lease if no option or other agreement(1) This section applies if a retail shop lease –(a) does not provide for an option on the lessee’s part to renew or extend the lease; and(b) is not the subject of an agreement for its renewal or extension.(2) The lessor must, by written notice given to the lessee within the notice period –(a) offer the lessee a renewal or extension of the lease on terms, including terms about rent, stated in the notice; or(b) tell the lessee that the lessor does not intend to offer the lessee a renewal or extension of the lease.(3) An offer made under subsection (2)(a) cannot be revoked –(a) until 1 month after it is made; or(b) if the lessee accepts the offer within 1 month after it is made.(4) If the lessor does not comply with subsection (2), the term of the lease is extended until 6 months after the lessor gives the notice (the extended period).(4A) However, subsection (4) applies only if the lessee, by written notice given to the lessor before the lease would otherwise expire, asks for the extension.(5) The lessee may terminate the lease before the extended period ends by giving at least 1 month’s written notice of termination to the lessor.(6) In this section –notice period means the period that is –(a) for a lease of not more than 1 year – at least 3 months, but not longer than 6 months, before the lease is to end; or(b) for a lease of more than 1 year – at least 6 months, but not longer than 1 year, before the lease is to end.

7. See PAMDA Part 3, Form 30C.