Until quite recently, it was common for Queensland residential leases to include special terms requiring tenants to pay for certain services as part of the tenancy agreement. The Queensland Residential Tenancies Authority (RTA) has recently made it quite clear that such special terms are in breach of s171 of the Residential Tenancies Act and are, therefore, illegal and unenforceable. Penalties can now be applied to agents or landlords who do not comply.
Three examples that are most typical of this practice and to be wary of are:
requiring a tenant to have carpets professionally cleaned when they vacate
requiring a tenant to have professional pest and flea treatments undertaken
requiring a tenant to purchase pool chemicals
The RTA have highlighted that the Act requires the tenant to leave the property in the same condition it was at the start of the tenancy, fair wear and tear excepted. This means that if the carpets were clean, the property pest free and the pool water clean when the tenants move in - that must be the condition they are in when they move out. However, it DOES NOT mean the tenant has to use professional services to produce this result. If the tenant wants to clean the carpet, do the pest control and/or maintain the pool themselves – they can, provided they leave the premises in the same condition it was in at the start of the tenancy, fair wear and tear excepted.
So, the bottom line is: agents and landlords can no longer include a special term in a lease compelling tenants to use professional services and requiring them to produce a receipt to prove it.
What does this mean for tenants?
Many agents use standard Real Estate Institute of Queensland (REIQ) Special Terms. Clause 47(2) of these special terms sets out the obligations of the tenant at the end of the tenancy and covers carpet, cleaning, pest control and pool handover and other matters. Those conditions are in compliance with the Residential Tenancies Act – and you still need to abide by these if they are in your lease – but special conditions that expressly require you to hire professional services to clean etc. are no longer enforceable. This does not mean you cannot choose to hire professionals to clean the premises etc. (and many tenants will and should still choose to do this). Rather, it means you can no longer be required to do this as part of the lease.
Carpet cleaning and pest control
As noted, carpets and pest control is still likely to be done by professionals. Where this occurs, a tenant can request a receipt for this work from the agent at entry to prove that this was done prior to entry. A thorough agent would make specific notations in the entry condition report that these items were attended to by professionals. Obtaining this information upfront clarifies the standard that a tenant has to meet at the end of their tenancy and avoids issues at a later date. A tenant may choose to attend to these matters themselves, but the work must then match the professional standard. Failure to do so can warrant a claim on the bond. A tenant may also choose to have the work done by another professional, not one recommended by the agency.
Tenants cannot be required to pay for pool chemicals. However, the lease can require the pool to be kept clean throughout the tenancy and handed over at the end of the tenancy in the same condition as noted on the entry condition report. The tenant can do this cleaning themselves and are under no obligation to hire a professional pool maintenance contractor.
It is not unreasonable to ask that the landlord pay for the first pool service (or provide a pool condition report from a professional pool company at entry) and provide instruction from a pool professional on how the pool should be maintained throughout the tenancy. It is also common practice for landlords to pay for a monthly pool service.
Review Special Terms Before You Commit
Lessors/agents must give a prospective tenant a copy of the General Tenancy Agreement (Form 18a) including any special terms before the tenant commits to the property – that is, before they pay any money or sign the agreement. Tenants should ensure that these are in fact provided and they have read through the standard lease terms as well as all special conditions and fully understand their obligations before paying across their non-refundable deposit to secure the property.
The RTA has now clarified that the long-standing practice of expressly requiring tenants to hire professionals to clean the premises etc. at the end of their lease and provide a receipt for such is no longer legal. However, as has been emphasised, it is still a tenants’ obligation to hand back the premises in the same condition (fair wear and tear excepted) as was received. It is therefore anticipated that tenants may still choose to hire professionals to do this work, particularly when the standard is high and/or they do not have the time or expertise to do the work themselves. The RTA has recognised that in some circumstances at least, such express requirements are not necessary and can be an onerous burden on the tenant who may very well be capable of doing the work themselves.