Little-known rule in rotting trunk

Two tenants given a day to vacate their property have won a big win over their real estate agent — but not for reasons you might think.

An Ipswich couple have been awarded compensation from their former estate agent after they were wrongly given just one day to vacate their rain-damaged home.

But Tamika and Christopher Roberts’ win at the Queensland Civil and Administrative Tribunal late last year was not for the reasons you might think.

The tenants of Redbank Plains told McGrath Real Estate Agents Springfield in April 2021 that the rain had damaged their back deck so badly that it was rotting away.

A builder later confirmed that the damage had indeed made the house unsafe.

But the work was also months away from completion due to material shortages during the coronavirus lockdowns.

And so a McGrath property manager sent Mr. and Mrs. Roberts a message asking them to leave within a day.

According to the recently published ruling of the tribunalThe Robertses did not dispute that the property had become unlivable, but they said that forced departure at such short notice had left them with significant additional costs and a lot of hassle.

However, property managers in Queensland are not required to tenant any notice period on departure if it is because of unlivability – a clause usually reserved for damages outside of a breach of contract.

The problem for McGrath Springfield was that the message had failed.

It was initially sent as a “baseless” notice and, even when judged as a non-livability notice, was also handed over to the tenants more than a month after they first increased the damage to the deck.

This is beyond the time allowed for such notice, meaning QCAT judge Elizabeth Gaffney ruled in December that McGrath Springfield would have to pay the couple a total of $2222.67 in compensation.


According to hearing documentsThe Robertses took a photo of their rotting deck on April 1, 2021 and sent it to their property manager.

The message was initially missed by the property manager, leading to a follow-up email from Ms. Roberts on April 7.

It read: “the tiles are all cracked on the top of the deck and where the wood fell it’s all rotten. I’m afraid we’re going to go through the deck with the rain we’ve had.”

According to the tribunal’s documents, on May 6, the Robertses received a telephone message from a McGrath property manager confirming that the deck had been inspected and not secure, and that they would receive an email about “moving forward.”

The email contained a message to vacate the premises that same day.

“Hi Tamika & Chris, Thank you for your time on the phone today. As discussed, the message to leave is attached as the property has become uninhabitable due to the aft deck.

A company called AAMN Building Services inspected Robertses’ home and advised McGrath that the existing patio should be removed and replaced in order to declare the home safe.

But the coronavirus pandemic and accompanying border lockdowns had led to significant trade and material shortages that threatened to delay any attempt to get the work done in a timely manner.

Repairs were at least “two to three months” away from launch.

The eviction notice was sent the next day.

Juror Ms. Gaffney agreed that the damage was enough for McGrath Springfield to consider the property unlivable.

But she ruled that the company had broken the rules Housing rent and housing law by giving Mr and Mrs Roberts more than a month to evict on these grounds.

“The RTRAA imposes a duty on the landlord to give notice to vacate within one month of the property being rendered in whole or in part unfit to live in, and…that duty shall be deemed to be included as a term of the lease — it was violated by the landlord,” said Ms. Gaffney.

NCA NewsWire has reached out to parent company McGrath Real Estate for comment on the matter.

At the tribunal’s hearing in November, Mr. and Mrs. Roberts said McGrath had left thousands of dollars out of pocket because they were forced to take annual leave, rent a trailer, and “cash in” on long-serving leave to move quickly. . from the damaged home to a new home.

The couple also said McGrath initially refused to give them access to their security deposit, meaning Mr. Roberts was forced to sell a collector’s card for $287 to pay the security deposit for the new property.

The Robertses eventually handed over the property to McGrath 19 days after receiving the leave of absence and — by the time of the tribunal hearing — had overpaid rent and returned their bail.

The self-represented couple had claimed $4,506 but ended up being awarded damages totaling $2222.67.


Non-livability is usually declared as a result of non-contractual damage, such as from a natural disaster such as severe storms or cyclones.

Penny Carr, CEO of tenants Queensland, says it’s an area of ​​tenancy law that hasn’t been invoked very often.

She also added that it was not designed to cover routine maintenance that was the landlord’s responsibility.

However, she agreed that the existence of the non-livability clause meant that it was possible for a tenant to be given one day to vacate a property damaged by an event such as a flood.

“It’s not very common for you to see it…and it can be disputed, but the problem is a lot of renters don’t know that,” Ms Carr said.

“You saw it being used by both owners and tenants after the (recent) floods.

“I have to say that tenants sometimes want to leave. They look at the damage and realize that they can’t get in anyway.”

The Queensland Residential Tenants’ Authority says the “unlivability” of a home should be looked at on a case-by-case basis.

The termination agency – in this case McGrath Real Estate Agents Springfield – does not necessarily have to limit the notice period to one day and can choose to give the tenants more time or to negotiate with them.

The tenant may even feel that it is better to stay in the property, even if it is partially destroyed, and negotiate a lower rent.

“Health and safety issues must be taken into account when making this decision,” the authority said

In investigating the case of RobertsesQueensland’s property sector said it was a “timely reminder” to property managers to ensure they adhere to all legal deadlines when issuing notices to leave.

“It is also an important reminder to conduct frequent and regular property inspections to ensure that any major maintenance issues are identified early before they render the property unlivable,” the report’s authors wrote.

“An incorrectly issued notice period exposes the landlord to a claim for breach of the lease.

“Such a claim eventually comes back to the administrator.”

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