Issuing an Overdue Rent Breach Notice QLD

In QLD you must wait until rent is 7 days in arrears before issuing a Remedy Breach notice

On the breach notice you must put 3 numbers

1. Date rent was 'Paid To'
2. Number of days rent is overdue
3. Amount of rent owing on the day the notice is issued

To take a simple example lets say the rent is $500 per week payable fortnightly in advance. Today is Friday August 6th

Rent is currently paid up to date until 11.59pm on Monday 9th August.

Next rent payment is 2 weeks rent $1000 due on Tuesday 10th August

(is the rent payment due on Tuesday 10th August or Monday 9th August?)

The tenant does not pay any rent on Tuesday 10th August.

Owner waits 1 week and then sends a Remedy Breach notice on Tuesday 17th August

Can the owner send the Breach Notice on Tuesday or do they have to wait till Wednesday?

If the notice can be sent on Tuesday then what numbers should go on this notice?

1. The rent was 'Paid To' Monday 9th August
2. Number of days rent is overdue is 7 days
3. Amount of rent owing on day of notice? Is it 7 days rent $500 (since rent is only 7 days in arrears) or is it 14 days rent $1000 (since the the tenant should have paid $1000 on Tuesday 10th but has paid nothing)

The QLD RTA website does not give any examples so it seems open to interpretation

 

It can also get complicated if you want to get technical right down to the nitty gritty (to the "day") because under the Act rent is taken to be paid when the Tenant makes the transfer, however if it takes the bank 1-3 days to send/receive and the Lessor/Agent to receive it, then it may appear overdue etc. In this regard, there are actually two Tenant ledgers - one from the tenant's side and one from the Lessor/Agent's side, and in QCAT, if you're trying to breach/evict them and it's clutching at straws and the Tenant comes back with "I did pay on time" with their proof (and it was) you will not win.

In answer to your question, the Tenant is lawfully allowed to be 0-7 days in arrears; on the 8th day you can breach them. That is, 12.01am on the 8th day onwards.

Side note, anything other than weekly for payment period is just horrible. To simplify, it could be said a Tenant can pay their rent anytime so long as they're not more than 7 days in arrears....

 

^Thanks for your thoughts Michael.

I am still wondering what the 'arrears amount' should be?

Should it be the amount required to get the rent paid up to the day of the notice?- this amount will change depending on what day the notice is issued and it will not get the rent 'up to date'

Or should it be the amount of rent that should have been paid by the date of the notice if the rent had been paid fully up to date? This amount stays the same until the next due payment date arrives.

These 2 numbers can be quite different regardless of whether rent is paid weekly or fortnightly.

In the example above is the arrears amount $500 or $1000 ?

 

If you issue the notice on the 8th day of arrears (i.e. 7 clear days), the amount listed on the notice should be equal to 7 days of rent. Note that most systems and 99% of PM will actually list the amount of 8 days, which doesn't seem to be a big sticking point in tribunal, but is technically incorrect.

Also, for the purposes of listing amount of arrears, regardless of how often rent is "due" (i.e. weekly, fortnightly, monthly), rent is calculated daily.

The amount of rent owing will accrue every day the tenants don't make payment of the notice, but they need only pay the amount listed on the notice to remedy it. This does mean a smart-ass can decide to pay the amount owing on the notice on the last day before it expires every week, causing them to be due a new notice about the same time they pay off the old one.

There IS a term on the notices these days that state rent accrued must also be paid in addition to the amount listed, but I haven't seen any adjudicators take this into consideration- i.e. if a tenant paid the amount listed on the notice but not the further rent accrued in the time it took them to make payment, some might argue that you would be within your rights to issue a Form 12 Notice to Leave (because the notice was not remedied in full). I have not seen this successfully presented at tribunal, though I'd love for someone to educate me otherwise.

 

Hi Tom,

Yes in the example above the breach should be issued on the Wednesday the 18th, not Tuesday 17th.

You say in the example above the rent owing at the time the notice is issued (Wednesday 18th) is only the number of days that the rent is overdue times the daily accrual rate . The rent is 1 week in arrears and the breach amount is $500. If the notice is issued on the 19th then the amount will be higher by 1 days rent.

But when I call the RTA and check this the RTA is advising that the rent owing on the 18th is $1000. i.e. it is the full amount of the 2 weeks rent that was not paid on the due date of Tuesday 10th

If you are correct then I am curious as to how you handle the situation if the tenant turns round and immediately pays the amount on the Remedy Breach?

So it is Wednesday 18th. Tenant receives a breach notice asking for only $500 (not $1000). Tenant comes straight to the office and gives you $500. What do you do next? the rent is still $500 behind?

Do you breach them immediately again for another $500 or wait another 7 days and breach them? If so for how much? It seems like this process would be very confusing for the tenant.

It seems much simpler to breach them for $1000 in the first place so if they pay the amount on the Breach Notice then everything is up to date.

Is there a documented explanation from an authority (such as RTA or some other government authority) of how to calculate Arrears that tenants and agents and landlords can refer to in order to demonstrate that they hove done it correctly when they attend a tribunal?

Also what do you do if tenant makes a part payment on 10th August. They pay only $500 instead of $1000?

Do you still breach them on the 18th?

What are the numbers for

1. Date rent was 'Paid To'
2. Number of days rent is overdue
3. Amount of rent owing on the day the notice is issued

RTA advice to me is that the numbers in this example should be

1. 9th August - RTA says the part payment does not count as it was not a full rent payment so 'paid to' date stays the same.
2. 7 days - RTA again says the part payment does not count as it was not a full rent payment so 'number of days' stays the same.
3. $500 - RTA says if part payment is made it is deducted from full payment so $1000 minus $500 leaves $500 owing

According to your method it seems like the numbers in this case on the 18th would be

1. 16th August
2. 0 days
3. $0

So it seems like you would have to wait until 1 further week later (25th August) before issuing your breach notice? Is that what you would do?

 

It seems that the RTA has not done a very good job in translating the legislation into a form that can be unambiguously understood and used by owners to apply correct procedure.

The term 'Amount of rent owing on day of notice' is not defined clearly anywhere and can be interpreted in 2 different ways.

Has anybody been to a tribunal in QLD and seen either method of calculation successfully applied?

Or can anybody point to the clause number in the QLD Residential Tenancies Act 2008 that would define the term 'Amount of rent owing on day of notice' unambiguously?