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Real Talk For Property Investors
Real Talk for Property Investors by EXCLUSIVELY MANAGED; the podcast that pulls back the curtain on the real world of managing investment properties in Brisbane.
I’m Samantha Eason; Principal and Licensee of Exclusively Managed, Property Management agency located in Brisbane. Each episode, I share the untold stories, hard lessons, and everyday realities that come with property management, from difficult tenants and dodgy maintenance to untrained managers and costly mistakes that could’ve been avoided.
This isn’t a sugar coated industry podcast. It’s honest, practical, and straight to the point, with a few laughs along the way. Whether you’re a property investor, landlord, or simply curious about what really goes on behind the scenes, Talking Property Management gives you the insight you didn’t know you needed.
I’ll be sharing real life experiences, expert advice, and proven strategies to help you avoid pitfalls, protect your assets, and get the most out of your investment.
And who knows… I might just be talking about your property manager in the next episode.
Real Talk For Property Investors
QCAT Decisions Unpacked: Real Cases, Real Lessons (2)
The decisions I’ll be reading from today are public rulings published by the Queensland Civil and Administrative Tribunal (QCAT). Everything I share is my own commentary and my opinion only. It should not be taken as legal advice. If you’re facing a similar issue, please seek independent legal advice or guidance specific to your situation.
Ever wondered how a tenant who's 49 days behind in rent could avoid eviction? This fascinating deep dive into a real QCAT case reveals exactly how a simple procedural error by a property management agency cost their landlord client what should have been a straightforward termination.
The devil truly is in the details when it comes to residential tenancy law. By posting the notice rather than hand delivering it, and not accounting for delivery time in their calculations, they fell one day short of legal requirements. That single day meant the difference between success and failure at tribunal.
What makes this case particularly illuminating is how it demonstrates the strict, prescriptive nature of tenancy legislation across Australia. Despite the property manager's appeal argument that the tribunal should consider "the substantial merits of the case," QCAT firmly held that mandatory notice periods cannot be waived or overlooked. The law is the law – not a grey area.
This episode offers invaluable lessons for property investors, managers and tenants alike. We explore best practices for issuing notices, common mistakes to avoid, and why understanding the difference between "issuing" and "giving" a notice matters. Whether you're managing properties professionally or simply want to better understand your rights, this breakdown of a real case reveals why attention to detail can make or break your position at tribunal.
Have you encountered similar situations where technical details impacted a tenancy dispute? Share your experiences or questions with us – we'd love to hear your five cents on the matter!
If you have any questions or scenarios you would like us to discuss on an upcoming episode, please email samantha.eason@exclusivelymanaged.com.au or visit https://www.exclusivelymanaged.com.au/
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Hello, I found another one. I love this. Okay, so you may not know, but we're working through some QCAT cases that have been made public, and this one's a fun one because it's so simple. It is so easy to do your job right and then you find out that people just don't. So I'm pretty ecstatic with this one. I feel bad for the client, but we'll work through it and you'd be surprised. This happens so often, so bloody often. It's incredible. Okay, so today we're reading a QCAT case that again was appealed with Marcellus Pike Real Estate v Bate, and this one's fun. So it is an appeal type.
Speaker 1:Heard at Brisbane. I'm not going to try and say the senior member's name. Oh, actually, let me give it a shot. Senior members still go. It was heard in November 2014. And the orders made, the leave to appeal was refused. So catch works. The catch words are appeal, leave to appeal.
Speaker 1:Minor civil dispute where a notice to remedy breach. Where insufficient notice provided. Where application to terminate tenancy refused. Were there grounds for leave to appeal? Okay, so the Appeal Tribunal heard and determined this matter on the papers in accordance with Section 32 of the Queensland Civil and Administrative Tribunal Act 2009. The reasons for the decision, miss Bate was 49 days in arrears of rent. Marcellus Pike Real Estate, acting as an agent for the lessor, issued a notice to remedy breach. Miss Bate did not pay. Marcellus Pike issued a notice to leave. Miss Bate did not leave. Marcellus Pike filed an application to terminate Miss Bate's tenancy. The tribunal dismissed the application.
Speaker 1:So again, I'm going to put in my five cents, because five is a bigger number than two, and what we have found in this case is the tenant was 49 days in arrears. On the eighth day you can issue a notice of remedy breach. Why they waited for the 30th. Beyond me, however, they may have actually waited earlier and then it just took some time. Me, however, they may have actually waited earlier and then it just took some time, but I believe you'll find that at this point in time she was 49 days in arrears of rent when they issued the no ceremony breach and the arrears and the no to leave, because they would have had to go off what was applied with the QCAT documentation, so it was put on.
Speaker 1:So, for whatever reason, various weeks earlier, no notice to remedy breach was issued, no notice to leave was issued and the tribunal dismissed the application. Why would QCAT dismiss an application that was warranted. Well, my five cents tell me that's due to the fact that there was improper notice or information provided to the courts. So Marcellus Pike wants to appeal that decision. It says that the loaned adjudicator failed to act fairly, failed to consider all evidence before them and failed to make a decision based on all merits of the case, and I'm going to give it to this real estate. They are going in it for the client. It says that the learned adjudicator made his decision on a technicality without considering the merits of the case, in circumstances where he had discretion to waive non-compliance. Again, I'm going to give it to the agency.
Speaker 1:However, the law is the law. It is not a great area. With regards to notice to remedy breaches and arrears, If you provide a notice to remedy breach, the tenant needs eight clear days. That notice to remedy breach cannot end on a public holiday. Best practice is to avoid it ending on a Sunday, and it would make sense that the notice to leave then issued after the fact also provides a full seven clear days. Best practice give an extra day. What have you got to lose? It is not difficult. However, we'll continue reading. I get a little bit too excited with these Because this is an appeal from a decision of the tribunal.
Speaker 1:In its minor civil disputes, jurisdiction leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Let's go through the established principles again. Is there a reasonably arguable case of error in the primary decision? I don't think so. Decision of the appeals tribunal would be to the public advantage.
Speaker 1:The learned adjudicator dismissed Marcellus Pike's application because it did not give the required period of notice in its notice to remedy breach. You need to provide the full notice period for a tenant to remedy a breach. It doesn't matter if you gave six days instead of a full seven. It's still seen as unfair. They made a mistake. Section 328 of the Residential Tenancies and Rooming Accommodation Act 2008 states that the period for remedying a breach of tenancy must not end earlier than seven days after it is given.
Speaker 1:Marcellus Pike issued the notice on the 1st of August 2014. As the adjudicator observed, issued is not the same as given. Marcellus Pike issued the notice on the 1st of August 2014. As the adjudicator observed, issued is not the same as given. Marcellus Pike gave the notice to Ms Bate by posting it On Friday, the 1st August 2014,. The earliest date she could have received it was 4th of August 2014. The notice called for the breach to be remedied by the 10th of August 2014.
Speaker 1:The learned adjudicator was correct in finding that Marcellus Pike did not give the necessary seven days notice. The learned adjudicator was also correct in finding that he had no discretion to waive the requirement of seven days' notice. The learned adjudicator pointed out that the notice period in Section 328-1 of the RTRA Act is mandatory. Section 349 does not allow the tribunal to cure defects in a notice to remedy breach, only a notice to leave. This tribunal has published many decisions confirming that the RTRA Act is prescriptive and the tribunal has no power to waive compliance with its mandatory provisions. Marcella Spike misunderstands the effect of Section 28 of the QCAT Act, where the Tribunal must act fairly and according to the substantial merits of the case and must also apply the law. Section 28 cannot overcome the prospective nature of the RTRA Act.
Speaker 1:The Tribunal may admit evidence despite non-compliance with any time limit. That is procedural power. It allows the tribunal to receive evidence, not to cure a defect in the evidence. The learned adjudicator did admit evidence of the notice to remedy breach but because of section 328 of the RTRA Act, he could not give it effect. There is no question of general importance. That should be determined by the appeals tribunal. There is no reasonably arguable case that the loaned adjudicator was in error. Leave to appeal should be refused.
Speaker 1:I feel bad for the owner in this situation because you pay services to a property manager to do their very best to look after your property and I know that the whole posting of arrears was a very big issue when email wasn't heavily used.
Speaker 1:But I also know 14 years ago which would have been around this time, actually maybe even before we were using email, and it was evident to always add an additional four days to any breaches or hand deliver the notice. And if you hand deliver it, you can do that on the day. There's no reason that they had to post it. You can also say that you never received it in the post. Therefore, if you hand deliver it and have photographic evidence that you've hand delivered it, you can't contest it. And unfortunately this still happens where notices aren't provided with the accurate timeline and timeframes, but it does. It happens all the time. Notices aren't correctly provided, qcat documentation isn't accurately completed and I believe it's common within our industry to understand the basics to ensure that when you do go to QCAT you dot your I's and you cross your T's. And those are my five cents. What do you think?
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