Two tenants who were given a day to vacate their property have won a big victory over their real estate agent – but not for reasons you might think.
An Ipswich couple have won compensation from their former estate agent after they were wrongly given a day to vacate their rain-damaged property.
But Tamika and Christopher Roberts’ win in Queensland Civil and Administrative Court late last year wasn’t for the reasons you might think.
Tenants in Redbank Plains in April 2021 told McGrath Real Estate Agents Springfield that rain had badly affected their back patio to the point that it was rotting.
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 shutdowns.
And so a McGrath property manager messaged Mr and Mrs Roberts asking them to vacate within a day.
According to the recently released court judgmentthe Roberts did not dispute that the property had become unlivable, but they said that being forced to leave at such short notice had caused them significant additional costs and a great deal of hassle.
However, property managers in Queensland are not required to give a tenant no departure notice if it is because of unliveability – a clause usually reserved for damages outside of breach of contract.
The problem for McGrath Springfield was that the notice was sloppy.
It was first sent out as a “no cause” notice and, even when assessed as an uninhabitable notice, was also delivered to tenants more than a month after they noticed for the first time the damage to the bridge.
That’s outside the time frame for such notice, meaning QCAT arbitrator Elizabeth Gaffney ruled in December that McGrath Springfield should reimburse the couple a total of $2,222.67 in compensation.
‘AS DISCUSSED, ATTACHED IS NOTICE TO LEAVE’
According to court documentsthe Roberts took a photo of their decaying patio on April 1, 2021 and sent it to their property manager.
The message was first missed by the property manager, prompting a follow-up email from Ms Roberts on April 7.
He said: ‘The tiles are all cracked at the top of the bridge as well as where the wood fell off it’s all rotten. I’m afraid we’ll cross the bridge with the rain we’ve had.
According to court documents, on May 6, the Roberts received a phone message from a McGrath property manager confirming that the bridge had been inspected and was unsafe, and that they would receive an email stating ” to move forward”.
The email contained a notice to vacate the property the same day.
“Hi Tamika and Chris, thank you for your time on the phone today. As discussed, attached is the departure notice as the property has become uninhabitable due to the rear patio.
A company called AAMN Building Services inspected the Roberts’ home and advised McGrath that the existing deck would need to be removed and replaced for the residence to be declared safe.
But the coronavirus pandemic and associated border closures had triggered major trade and material shortages that threatened to delay any effort to get the job done in a timely manner.
Repairs were at least “two to three months” away from being started.
The next day, the departure notice was sent.
Arbitrator Ms Gaffney agreed the damage was sufficient for McGrath Springfield to deem the property unlivable.
But she ruled the company breached the Residential Tenancies and Rooming Accommodation Act giving him over a month to serve Mr. and Mrs. Roberts notice of dismissal for these reasons.
“The RTRAA imposes on the lessor the obligation to deliver the notice of departure within one month following the formal notice totally or partially unsuitable for habitation, and… this obligation is considered as a clause of the lease – it was violated by the lessor,” Ms Gaffney said.
NCA NewsWire has reached out to parent company McGrath Real Estate for comment on the matter.
At the court hearing in November, Mr and Mrs Roberts said they lost thousands of dollars to McGrath because they were forced to take annual leave, hire a trailer and collect fees long-term leave to move quickly. of the damaged house in a new property.
The couple also said McGrath initially did not give them access to their bond money, meaning Mr Roberts was forced to sell a collector’s card for $287 in order to pay bail for the new property.
The Roberts eventually returned the property to McGrath 19 days after receiving the notice to quit and – at the time of the court hearing – had been refunded the overpaid rent and their deposit.
The unrepresented couple claimed $4,506 but were ultimately awarded compensation totaling $2,222.67.
WHAT ARE THE RULES HERE?
Unliveability is usually declared as a result of damage outside of a breach of agreement, such as a natural disaster such as severe storms or cyclones.
Tenants Queensland chief executive Penny Carr said this was an area of tenancy law that was not often invoked.
She also added that it was not designed to cover routine maintenance which was the owner’s responsibility.
However, she agreed that the existence of the non-habitability clause meant that it was possible that a tenant could be given a single day to vacate a property which had been 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 that a lot of tenants don’t know it,” Ms Carr said.
“You saw it used by both landlords and tenants after the (recent) floods.
“I must say that sometimes tenants want to go there. They look at the damage and realize that they won’t be able to go back there anyway.
The Queensland Residential Tenants Authority says the “unliveability” of a property must be considered on a case-by-case basis.
The agency giving the notice – in this case McGrath Real Estate Agents Springfield – need not limit the notice period to a single day and may choose to give tenants more time or negotiate with them.
The tenant may even consider that it is better to stay in the property, even partially destroyed, and negotiate a reduction in rent.
“Health and safety issues must be considered when making this decision,” the authority said..
Looking at the case of the RobertsQueensland’s property industry said it was a ‘timely reminder’ to property managers to ensure they meet all statutory deadlines when issuing vacancy notices.
“It’s also an important reminder to carry out 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.
“A badly delivered exit notice will expose the lessor to an action for breach of lease.
“Such a claim will ultimately rest with the property manager.”