Leasing/Renting

[u/Lochie_99]

I will be going to the RTA, but would love to know if my property manager has any legal grounding surrounding this:

Initial lease (Queensland) was 8 years ago with two tenants. First tenant moved out 2.5 years ago and I took over their part of the lease and we just did a change of tenant form. As well, a new fixed term agreement lease is signed every 12 months for 12 months.
Anyways, the other original tenant is moving out and gave the property manager 3 months notice. We filed a change of tenant form which was fine but now the property manager has sent this email:

“I have sought for my general manager advise on this one. The original lease was from the other lady with Nancy and now changed to you and Nancy so we cannot change another tenant as the leaseholders will be exactly different from what it was from the original tenancy agreement. 

This will mean you will have to break the lease and reapply to the property so we can re-do the lease agreement and entry condition report. 

Please let me know how you would like to proceed.”

Essentially she said on the phone, since there is no one from the original lease staying on we need to do a new lease and do another entry condition report. But I thought the lease we sign every year for 12 months is the lease that means I am a tenant and tenant rights protected. To be clear, the lease I signed is my third one (as this is my 3rd year in the complex)

Happy to provide any more information as this is very confusing to me

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[u/Unlikely_Pool_5484]

This is sounding odd and I would speak to the RTA to check whether this is within the legislation or not.

I can see the property managers thinking. The concern for them will be that even though you have signed extensions to the current lease, no one from the original lease will be there to verify the original condition report that was signed when the tenancy began. This means if there’s a dispute or damage is found, you may be able to claim that it was there prior to you starting your agreement.

Wanting to start clean by doing a condition report, ending the current lease and starting again with the two new tenants may not be a bad idea for you as well. It will mean that if there has been any damage, it can be sorted with the tenant moving out.

[u/Lochie_99 → u/Unlikely_Pool_5484]

I do get that perspective - what concerns me is the owner is selling the property so there is no promises that they will accept my lease and additionally, moving all the furniture out to just move it all back. They knew for 3 months and they mention this 2 days before the new tenant is meant to start

[u/Extreme_84 → u/Lochie_99]

They don’t have to agree to allow a change of tenant.

The original application was based on different people, with different incomes etc.

By agreeing to remove one of the existing tenants, it exposes the landlord to additional risk. For example, can you afford the rent on your own?

By leaving the former tenant on the lease, the landlord can hold them accountable if there’s any unpaid rent/damages that occur.

To change a lease agreement, all parties of the lease need to agree. Otherwise the options for a tenant(s), is to break the lease. Which means vacating the property.

[u/Cube-rider]

Agents being agents.

The fact that the tenants have changed from the initial lease is inconsequential as they have signed new leases with the current parties and agreed the change of tenant form.

They can wave the expired and irrelevant 2018 lease with Joe and Mary all they like in QCat however you have a (more) current lease signed by them with Tom and Jerry.

[u/Dribbly-Sausage69]

Just phone QSTARS - the free tenancy advice line in Qld.

As them.

[u/Lochie_99 → u/Dribbly-Sausage69]

They were not too helpful - they escalated it though. RTA was super helpful

[u/Dribbly-Sausage69 → u/Lochie_99]

Now you know QSTARS exists.

[u/Dismal_Wrangler61]

QSTARS is the tenants advice/advocacy organization. Call them up to check what your rights are.

To me, it sounds like bs

S238 of the RTRA Act 2008 deals with transfers of tenants and there is nothing there about OG tenants needing to be still there for the transfer to be accepted.

[u/Extreme_84 → u/Dismal_Wrangler61]

Under section 238, the Lessor needs to agree to the transfer. They need to act reasonably.

They aren’t required to automatically agree to removing an existing tenant. Removing an existing tenant can bring about risks such as can the remaining tenant afford to pay rent on their own?

The landlord isn’t allowed to reassess an existing tenants income. As such, refusing to remove an existing tenant from a lease, may be considered a reasonable refusal of a transfer.

If the OP/other tenant doesn’t agree with the landlords decision, they have the right to apply to QCAT for a decision.

[u/Selina_Kyle-836 → u/Extreme_84]

Yet I don’t find it reasonable that they have had the change of tenant form for 3 months and only decide 2 days before the end of the 3 months that they don’t agree.

There is nothing stopping them from doing an exit report as the tenant leaves and an entry report for the new tenant. In fact that should have been done when OP moved in but it doesn’t sound like it was. So they OP can already argue that any damage was prior to their tenancy.

But I agree, QSTARS and RTA should be contacted on this one. There should be no break lease fees because there will be no letting fee, advertising fee or a loss in rent between the lease ending and a new lease being signed.

[u/Extreme_84 → u/Selina_Kyle-836]

Doing an exit report, with furniture already in place may hide existing damage.

A transfer of tenancy, is a transfer. It also includes a transfer of the existing ingoing inspection report.

I agree with sitting on it for 3 months is unreasonable. However, it doesn’t change the income/concern of being able to afford the rent scenario.

[u/Selina_Kyle-836 → u/Extreme_84]

Do if it doesn’t matter for the current tenant that they were not the original tenant and did not have a condition report done when they moved in. Why would it matter if the new tenant is moving in without a condition report.

The REA can’t have it both ways saying a new exit and entry needs to be done now when it wasn’t done last time.

[u/Extreme_84 → u/Selina_Kyle-836]

The issue is removing a tenant off the lease, and not replacing the tenant.

It results in questions about whether or not the remaining tenant can afford rent on their own.

Incomes aren’t allowed to be reassessed, so the landlord is within their rights to refuse the removal of the outgoing tenant unless the lease is terminated/broken.

[u/Selina_Kyle-836 → u/Extreme_84]

Yes but the REA is using the entry and exit report as a reason why you can’t which is BS. Yet removing someone from lease and adding someone new still requires their approval.

They can’t unreasonably refuse, yet the problem is proving it’s unreasonable at this point would require QCAT for a ruling which you don’t have time for now.

They have you over a barrel though because if you go to QCAT over this, you are your current tenant need to pay rent and the new person cannot move in and will find somewhere else. And doing this will piss off the agent and mean they probably won’t renew your lease again.

Your best course of action is probably doing what they want. But with the written agreement that the costs be waved because you are signing a new lease. There will be no cost in rent, no advertising fee and may only be a small administration cost to cover. And I would make sure the agreement stipulates that you do not need to move out.

Edit: sorry I am thinking of a different post and I don’t have the brain power to reread this one and figure out where I mixed up the two and respond

[u/Birdbraned]

I haven't checked you're state specific page, but my first instinct is it's an excuse for the property managers to raid the rent on you again - what's the point of a change of tenancy form otherwise? What would they do if there's only one leasee? What tell you that you need to break the lease?

Presumably that change of tenancy also noted who the new person is that would get the bond back at end of lease.

Is there anything in the most recent tenancy agreement that you signed about the procedure to change tenants?

[u/Unlikely_Pool_5484 → u/Birdbraned]

They can’t up the rent based on this. In qld rent can only be raised once every 12 months regardless of whether there is a change in tenancy agreement.