End of fixed term evictions are unfair ‘no grounds’ evictions: Part 1
Jemima Mowbray • 01/11/2021
Did we miss something? Queensland reforms tenancy laws
If you’ve been following the news about recent reforms to Queensland tenancy laws lately you’d be forgiven for thinking there had been a big win for renters we’d somehow missed or forgotten to celebrate. The ABC reported removing ‘eviction without grounds’ was among a raft of changes to the state’s rental laws successfully passed through Queensland Parliament. Channel 7 told its viewers the Queensland reforms would ‘stop evictions without grounds’. We should be celebrating!
But sadly, no. The Queensland Government reported the changes would mean “a rental property owner will not be able to issue a notice to leave ‘without grounds’, which will provide renters with more certainty.” However look a little closer and the details of the planned reform tell a different story. While the reforms will formally remove ‘without grounds’ as a reason for eviction, they will add ‘end of a fixed term agreement’ as an ‘approved reason’ for eviction. Ask any advocate what this mean they’ll tell you straight up – Queensland has not gotten rid of ‘no grounds’ evictions. In practice, landlords will likely move to putting renters on shorter ‘fixed term’ agreements.
“It hasn’t really addressed the lack of stability for tenants.”
“If renters are brave enough to ask for repairs, there’s a real risk they’ll end up homeless because landlords won’t renew their lease.”
“How can people who rent their homes possibly feel secure when, 10 or even 4 months into a tenancy, they can be told to get out?”
It’s unclear why so many people – including decisionmakers in Parliament – seem to think the end of a fixed term agreement is fair and reasonable justification for ending a tenancy. At law a tenancy agreement doesn’t end just because a fixed term agreement comes to an end. The agreement continues on, unless a party to the agreement seeks to end it and gives notice. If the intention of reform is to ensure landlords can only end a tenancy when they have a good reason (a reasonable ground), how does ‘because the agreement is ending’ make the cut. As a ‘reason’, it sounds pretty circular to us.
Renter: Why is the tenancy agreement ending? What is the reason?
Landlord: The agreement is ending because the agreement is ending.
Ending an agreement on the basis of ‘end of fixed term’ is really just a ‘no grounds’ eviction.
This option is not recommended
The Queensland Government itself recognised this earlier on in the reform process. In their initial Consultation Regulatory Impact Statement the government rejected keeping the ‘end of a fixed term’ as an approved reason, explaining:
"Introducing the end of a fixed term as an approved reason to end any tenancy would maintain the owner’s sense of control over the rental property but would not improve long-term security of tenure for tenants or encourage transparency or accountability in tenancy arrangements …
Tenant fears about retaliatory eviction if they enforce their tenancy rights would not be addressed as owners could rely on the expiry of a fixed term to end the tenancy without providing any other reason.
Further, it is intended that all genuine reasons for an owner to regain possession of their property at the end of a fixed term agreement would be included as an otherwise recommended, specified ground.
This option is not recommended."
A breach of human rights
Unfortunately, the Queensland Government then backed away from this early promise to end no grounds, succumbing to pressure from the real estate lobby and others in favour of the status quo. They even sought to justify this backflip with some very dubious claims, with their Housing Minister Leeanne Enoch arguing removing ‘no grounds’ evictions would be a breach of the Queensland Human Rights Act. This claim was strongly disputed by advocates, including perhaps most notably by Scott McDougall, the Queensland Human Rights Commissioner. In his submission to Queensland Parliament about the reform bill he wrote:
“Preventing a lessor from ending a tenancy once the lease is ended, unless a specific valid reason is available, may amount to diminishing the property rights of a lessor, but would probably not amount to an ‘arbitrary deprivation’ under the right to property.”
He went on to explain the right to property in the Queensland Human Rights Act was intended to prevent a person from have their property arbitrarily removed. Removing the ability to end tenancies for no reason would not deprive landlords of their ownership of the property, or of the ability to derive benefits from it (rent). Even if, in theory, landlords might lose some value because they couldn’t re-rent the property for a higher value (increase the rent for new renter who moves in) this limitation on their rights could be clearly justified “given significant housing instability and homelessness in Queensland”. He concluded, “it is unlikely that requiring a lessor to provide reasons to end a tenancy at the end of the fixed term would amount to an arbitrary action”.
In short, it’s very unlikely anyone serious about human rights would consider removing the ability to end a tenancy on the basis of ‘end of a fixed term’ a human rights breach.
In contrast, the use of ‘end of fixed term’ as an approved reason for ending a tenancy is much more likely to be considered a human rights breach. As McDougall explained:
“Issuing a Notice to Leave to a tenant that provides no valid grounds, other than the fixed term ending, might amount to an arbitrary interference with the right to ‘home’, which is part of the right to privacy and reputation under section 25 of the HRA, and where there are families with children renting, section 26 may be engaged.”
In other words, there is a human rights breach here but it is in the continuing of ‘no grounds’ or ‘no reason’ evictions.
And McDougall is pretty clear on the point of whether ‘no grounds’ evictions remain, pointing out “section 291 Notice to Leave without ground [Queensland’s ‘no grounds’ provision] is retained and merely reworded as a Notice to Leave ‘for end of fixed term agreement’."
You can’t be much clearer than that: an ‘end of fixed term’ eviction is simply a rewording of (or just another way of allowing) ‘no grounds’ eviction.
As Parliament sat Queensland renters protested
Which is why, as Queensland Parliament sat to debate the tenancy reform bill, Queensland renters protested outside the building, joined by hundreds online. Knowing the clear limits of what the bill going through Parliament was proposing, they called for a real end to ‘no grounds’ evictions.
Most Queensland renters – over three quarters of them - are on fixed term agreements. This is a higher rate than in NSW or Victoria. And Queensland renters explain they often feel pressured by their agent or landlord to remain on a fixed term agreement, and that there is very little flexibility around length. They are also commonly required to sign up in January or July for a 6 or 12 month period whether they anticipate they can stay for the full term or not. This is done to time the end of the tenancy for when the biggest pool of future applicants is available to the agent or landlord.
Even before the Queensland reforms were put on the table, the Queensland Residential Tenancies Authority (RTA) had observed it was becoming industry practice for property managers to issue a notice to leave ‘without grounds’ more than two months before the end date of fixed term leases along with an offer of a new lease. Tenants’ Queensland predicts that with the passing of the reform bill even higher numbers of renting households will now be required to continuously sign back to back fixed term contracts, so that landlords can retain their ability to evict with no reason. And the practice of issuing a termination notice for the ‘End of Fixed Term’ when offering a new fixed term agreement will become common practice, effectively putting the renter on notice from the very start of the new agreement. This will leave renters with no security, and certainly without any confidence to assert their rights around the new minimum standards set to be introduced, or general repair and maintenance issues.
As Penny Carr, CEO of Tenants Queensland, expressed when the tenancy reform bill finally passed on 14 October, “These laws are not ones for a modern Queensland as they don’t offer strong enough protections from unfair evictions.”
These are not fair laws, this is not real change
Queensland renters did not get the change they need and deserve. The ability to end a tenancy for ‘no grounds’ did not end with the recent reforms. We, along with Tenants Queensland, will be keeping a close watching brief on how the recent reform of (or failure to reform!) ‘no grounds’ provisions impacts renters in Queensland once implemented. And we - along with a growing community of renter campaigners here and in Queensland and across the country - will continue to push for real change.
On Wednesday, in Part 2 of this series: ‘End of fixed term evictions are unfair ‘no grounds’ evictions’ we look at previous failures to remove ‘no grounds’ provisions in other Australian states and territories. We then unpack how we understand evictions and the ways this understanding informs how our renting contracts are made.