A recent appeal decision of the Queensland Civil and Administrative Tribunal (QCAT) highlights important points for lessors, agents and tenants to consider in relation to retaliatory eviction.
Retaliatory eviction may occur when a tenant has been asked to leave by their lessor/agent because they have taken action in some way to enforce their rights.
The RTA's Principal Policy Officer, Janet Arber, points out that Section 291 of the Residential Tenancies and Rooming Accommodation Act 2008 refers to retaliatory action.
"The Section prohibits a lessor/agent from giving a notice to leave without grounds (form 12) if the giving of the notice constitutes taking retaliatory action against the tenant," Ms Arber said.
"The QCAT decision goes some way in clarifying what the Tribunal considers retaliatory action to be."
An application to QCAT was made when a tenant was given a Notice to Leave without grounds at the end of their fixed term agreement. This followed a series of disputes between the parties allegedly leading to words between the tenant and the managing agent.
The Adjudicator's decision (Bamfield v Zanfan Pty Ltd [2010] QCAT 54) states "...the notice was causally connected to an event which involved unacceptable behaviour by the tenant, but it was not retaliatory in the sense s291 envisages."
The QCAT finding determined that the conduct leading to the Notice to Leave did not involve any assertion of a right by the tenant, followed by a retaliatory act.
Instead it was regarded as conduct which persuaded the lessor/agent to discontinue the relationship with the tenant.
On making the finding the Magistrate took into account the previous incidences of the tenant asserting their rights during the long tenancy. This happened, despite the agent not previously serving a notice to leave.
Ms Arber said that this interpretation would be of interest to lessors and agents who were concerned about being accused of retaliatory eviction.
"One of the major initiatives of QCAT is the potential for making written decisions so the residential tenancy sector can understand the reasons behind the decision.
"Over time this will build up into a valuable resource for the sector, particularly those in dispute who may be considering applying to the Tribunal for an order."
In December 2009, QCAT replaced the Small Claims Tribunal as the body responsible for adjudicating residential tenancy disputes.
Source RTA
