Have you ever been in a situation where you really want to get a tenant out of your home? Well you should be aware that you cannot just evict a tenant by forcibly removing them even when you have given a Notice to Leave (Form 12) and the tenant fails to vacate. If you do so, you could face an investigation and potentially a hefty civil penalty.

What if you are a Respondent to an application made by a lessor who is seeking a Warrant of Possession (“WoP”) so as to have you removed from a home? Did you know that you may have rights to dispute the application seeking the termination and WoP? Even where the WoP is granted, you may be able to seek leave to appeal and appeal.

This publication explores both aspects of removing a tenant by lawful means and also the rights of the tenant in disputing an application and / or setting aside a WoP.

NATURE AND EXTENT OF A WARRANT OF POSSESSION

Under s 351 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRA”), a WoP:

• authorises a police officer, or other stated authorised person, to enter premises and give possession of the premises to whoever’s favour the warrant was granted; and
• authorises the person executing the warrant to use necessary and reasonable help and force; and
• is required to stipulate the hours of the day when entry may be made; and
• is required to stipulate the day the warrant comes to an end; and
• takes effect on the day stated in the warrant and ends 14 days after is takes effect or alternatively takes effect or ends at a later time based on special circumstances of the case.

RECOVERING POSSESSION OF PREMISES & OBSTRUCTING PERSONS EXECUTING WARRANT OF POSSESSION

Removing a tenant or even a former tenant holding possession after termination under a residential tenancy agreement is strictly prohibited. Under s 353(2) of the RTRA, a person must not recover possession of the premises other than in a way under the RTRA. In the event of breach, a party could be the subject of a legal investigation by the Residential Tenancies Authority (“RTA”) and could face up to and including a 50 Penalty Unit fine ($6,095.00).

Based on the risks involved, it is always best practice to advise a lessor or their agent to ensure they follow the necessary steps to remove a tenant or former tenant.

Similarly, a person must not obstruct a person in the exercise of a power under a WoP unless there is reasonable excuse. In the event of contravention, this could also mean up to and including a 50 Penalty Unit fine ($6,095.00). It is for that reason specific advice should be given to be cautious in strictly complying with the objects of the WoP.

OBTAINING A WARRANT OF POSSESSION

In order to obtain a Warrant of Possession, a lessor or their agent needs to make an application to QCAT seeking termination of the tenancy agreement. Under s 350(1) of the RTRA, where a tribunal makes a termination order on an application made other than by a tenant, it must also issue a WoP. In certain situations, a lessor or their agent can also apply to QCAT for an urgent termination without issuing a Notice to Leave. Typical lessor termination applications can be made as a result of:

• the tenant failing to leave in accordance with a Notice to Leave or Notice of Intention to Leave. It should be noted that under s 293 of the RTRA, such an application must be made within 2 weeks after the handover day; or
• the lessor or provider (under rooming accommodation) believes they would suffer excessive hardship should the tenancy not be terminated; or
• the tenant breaching a residential tenancy agreement and has been given 2 Notice’s to Remedy Breach and commits a further breach within 12 months. Each of the first 2 notices are required to relate to a separate provision of the lease or RTRA and the tenant must have remedied each breach within the allowed time-frame; or
• incompatibility between the tenant and lessor. This only relates to short tenancy agreements that relate to a moveable dwelling park; or
• the lessor believing, on reasonable grounds, that the tenant has intentionally or recklessly caused, or is likely to cause, serious damage to the premises or injury to the lessor, agent or another person entering or occupying the premises.  
• the tenant allegedly engaging in ‘objectionable behaviour’. This can include harassing, intimidating or abusing the lessor or their agent, a person occupying the premises or a neighbour. It can also extend to being a tenant being a nuisance.

SEEKING MORE TIME TO VACATE OR DISPUTING RIGHT TO TERMINATE

A tenant that has received an application made by a lessor or their agent seeking termination of the tenancy agreement, should make a concerted effort to make an appearance on the day of the hearing. This is especially so where the risk involves a potential WoP being ordered.

Depending on the tenants personal situation, they may be able to seek more time before the date of termination, which will also affect the commencement and end day of the WoP. For that purpose, it is not uncommon for a tenant to explain their personal situation such as having minor children involved, financial difficulties in moving, health difficulties affecting relocation or whatever the reason may be. In so requesting such an extension to vacate, chances increase when the tenants have already brought rent up to date or alternatively the tenant undertakes to maintain the rent up until the handover day.

Alternatively, a tenant may be able to argue the application for termination is invalid. In the event the tenant is successful, it goes without saying that a WoP cannot be ordered. Some common reasons to argue invalidity of the termination application can include, but is not limited to:

• invalid or defective notices whether by not meeting statutory time requirements, failing to be in the prescribed form or alternatively not having any merit. It should be noted that even where notices are defective, s 349 of the RTRA sets out that a tribunal can still make the termination order in all the circumstances of the case;
• lack of evidentiary support in relation to the assertions giving rise to the breach and subsequent termination. Usually a tenant should have followed the necessary process to dispute any breach such as issuing a Dispute Resolution Request (Form 16) with the RTA;
• the lessor or agent issuing the notice in a way that is characterised as retaliatory under the RTRA.

SETTING ASIDE A WARRANT OF POSSESSION

In the event that a WoP is granted to a lessor or agent, a tenant has 14 days to apply for written reasons or the audio / transcript from QCAT. Once this application is made, QCAT has 45 days to comply under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Once the tenant is given the written reasons or the audio / transcript from QCAT, they will have a further 28 days to seek leave to appeal and appeal.

An application to set aside the WoP is an arduous task and often rejected based on a failure to meet the basic requirements. For that reason, a tenant should always reach out to either an Australian Legal Practitioner or alternatively Tenants Queensland, which is a Community Legal Centre operating in Queensland with the aim of assisting tenants with advice or advocacy services.  

From a practical perspective, a tenant needs to strictly show either an error of law and / or an error of fact in the original decision. There is usually not an opportunity to adduce fresh evidence that was not previously relied on by the original decision-maker unless a further application is made, which is a common mistake by rookies.

In the event a tenant wants to rely on new evidence, leave to adduce the new evidence needs to be requested as set out in Bunting v Jeff Jones Real Estate on behalf of Adrian Vos [2015] QCATA 52 at 57. Subsequently, in Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408 a three step process to admit further evidence is also said to be required including:

• whether the tenant could have obtained the evidence with reasonable diligence for use at trial; and
• if the evidence was allowed would it have an important impact on the result of the case; and
• is the evidence credible.

That aside, it is firstly necessary to obtain leave to appeal. To do so, an Applicant will need to file a number of documents. Typically, you may be required to complete an Application for leave to appeal or appeal (Form 39), an Application to stay a decision (Form 44) and an application for interim orders (Form 41). Depending on the particular case, you may also need to file an Application to extend or shorten the time limit or waive the procedural requirements and an Application for a fee waiver. An Affidavit of Service should also be filed after service is effected or this can also delay proceedings.

CONCLUSION

A lessor or agent should comply with the rules of eviction or fear facing a potential penalty. Generally speaking, a lessor will rely on an agent in this situation. In the event that you are self-managing a property or an agent hit with a tricky application for leave to appeal or appeal and are unsure on your obligations or the law, you should reach out to Australian Legal Practitioner who specialises in residential tenancy law. Alternatively, if you are a tenant, there are a number of free organisations which can provide you with advice or advocacy services including Tenant’s Queensland, who can be contacted on 1300 744 263.

Disclaimer: This publication is not intended to be comprehensive nor does it constitute legal advice. Although attempt is made to ensure the information is current, there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication.