Law Current to: October 14, 2025

Evictions for Unremedied Breach

Residential tenancies in Queensland can only be ended in one of the ways outlined in the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRAA).

Providing a valid Notice to Leave (Form 12) is one of the allowed ways to end a tenancy agreement. Landlords may give a renter a Notice to Leave in various circumstances, including if the tenancy is due to end (for example, the 12-month fixed term is coming to an end) or they believe the renter has failed to remedy a breach of the rental agreement. In some circumstances, a rental provider can give a renter a Notice to Leave without first giving them a Notice to Remedy Breach.

This resource discusses the process a landlord must follow when seeking to end an agreement for unremedied breach.

Notice to Leave for unremedied breach

Section 280 of the Residential Tenancy and Rooming Accommodation Act 2008 (RTRAA) allows a lessor to issue a notice requiring the tenant to remedy the breach within the allowed remedy period. The lessor must reasonably believe that the tenant has breached a term of the agreement.

If the breach is for rent arrears, the rent must have remained unpaid in breach of the agreement for at least 7 days before a Notice to Remedy Breach can be issued: s 280 RTRAA.

Under s 328 RTRAA, the allowed remedy period is 7 days. If the alleged breach remains unremedied with the remedy period, the lessor is entitled to issue the tenant a Notice to Leave.

Section 325 outlines the requirements for a Notice to Leave. Schedule 1 of the RTRAA outlines the notice periods required to be given in a Notice to Leave. The allowed notice period for unremedied breach is 7 days for unpaid rent and 14 days for other unremedied breaches.

If a tenant does not leave within the notice period, the lessor can apply to QCAT for a termination order and a warrant of possession. The application for a termination would likely be made under s 293 RTRAA.

Under s 337 RTRAA the Tribunal may to make a termination order if it is satisfied the lessor has established the ground of the application and notice to leave, and the breach justifies the order.

The operations of these sections were succinctly outlined by Judicial Member D J McGill SC in Horsley v Davis [2021] QCATA 124 at [20]:

To make a termination order, the Tribunal must be satisfied that the lessor has established the ground of the application and notice to leave, that the tenant committed the breach of the agreement stated in the notice to remedy breach about which the notice to leave was given, and that the breach justifies terminating the agreement: s 337(2). That requires:

(a)          A notice to remedy breach based on a breach which has been committed.

(b)          A failure by the tenant, before the end of the allowed remedy period in the notice, to remedy that breach.

(c)          A notice to leave, issued after the expiry of the allowed remedy period, which is based on that notice to remedy breach, and which provides the correct time for a handover day; and

(d)          An application for a termination order filed after the handover day but within the period limited by the Act s 293(2).

Responding to a Notice to Remedy Breach

A Notice to Remedy Breach is a formal document that alleges a breach of the tenancy agreement and provides a tenant with the allowed period to remedy the breach.

If a tenant remedies the breach within the remedy period, the landlord will not have grounds to issue a Notice to Leave for unremedied breach.

Is there a defect in the Notice to Remedy Breach?

If a client receives a Notice to Remedy Breach, you should review the notice to ensure it complies with all statutory requirements. A defect in the notice can be fatal to any subsequent application to terminate the agreement.

In Lowe v Aspley [2010] QCATA 59, Deputy President Kingham DCJ stated that:

The RTRA is prescriptive about the requirements for issuing Notices and commencing proceedings. The consequences that can flow from a tenant’s failure to comply with Notices issued under the RTRA explains the degree of prescription. If the tenant fails to comply with validly issued notices, the agent is entitled to commence urgent proceedings, without the need to enter into discussions with the tenant in an effort to resolve the dispute. The end point of that process is an order to terminate the tenancy.

A defect under s 328 RTRAA is not a curable defect by virtue of section 349 of the RTRAA: Holt v Best [2018] QCATA 66 at [22]; Lowe v Aspley [2010] QCATA 59 at [11]. If the preconditions of the RTRAA are not met the Tribunal does not have the jurisdiction to issue a termination order and warrant of possession: Horsley v Davis [2021] QCATA 124.

Common defects include that the tenant was not provided the sufficient remedy period, that the tenant did not (and was not deemed to) receive the Notice to Remedy Breach, or that the notice did not accurately reflect the amount of unpaid rent.

The Notice to Remedy Breach must give at least 7 days (allowed remedy period) for the tenant to remedy the breach specified in the notice: s 328 RTRAA. The allowed remedy period starts running once the Notice to remedy breach is received, or deemed to be received, by the tenant. Although this point has not been definitively decided, see for example the reasoning in: Marsellos Pike Real Estate v Bate [2014] QCATA 316 at [5]; and Lindenberg v Kalwun Development Corporation [2012] QCAT 259 at [54].

A Notice to Leave relying on a failure to remedy breach can only be issued after the remedy period expires and if the breach has not been remedied. The remedy period must not end on a Saturday or Sunday. Section 38(2) of the Acts Interpretation Act 1954 requires that if the remedy date falls on an excluded day (that is, s Saturday or Sunday, the time for remedying the breach falls on the next day which is not an excluded day. As a result of s 38(2), if the remedy date is a Saturday or Sunday the actual end time for compliance is midnight the following Monday. This is important to consider, as it may lead to invalidity of the subsequent Notice to Leave.

For example, if the remedy date is extended to Monday at midnight, a Notice to Leave served on Monday morning is invalid. Any subsequent application for termination seeking to rely on the Notice to Leave is bound to fail.

When considering if the various notice periods have been met, it is necessary to confirm when the notice was received or deemed to be received.

When was the Notice to Remedy Breach received?

Item 48 of schedule 1 of the Residential Tenancies and Rooming Accommodation Regulation 2009 (Qld) (RTRAR) state that:

(3) A notice may be given to a relevant party—

(a) by giving it to the relevant party personally; or
(b) if an address for service for the relevant party is stated in item 1, 2 or 3—by leaving it at the address or sending it by prepaid post as a letter to the address; or
(c) if an electronic address for a type of electronic communication for the relevant party is stated in item 1, 2 or 3 and item 4 indicates that a notice may be given by that type of electronic communication—by sending it by electronic communication to the electronic address in accordance with the Electronic Transactions (Queensland) Act 2001.
…

(8) Unless the contrary is proved—

(a) a notice left at an address for service is taken to have been received by the party to whom the address relates when the notice was left at the address; and
(b) a notice sent by post is taken to have been received by the person to whom it was addressed when it would have been delivered in the ordinary course of post…”

In practice, notices are often sent by email. For this to be an appropriate form of service, the tenant must have agreed to receive communication by email.

When can a Notice to Leave be issued?

As discussed about, a Notice to Leave can only be issued after the expiry of the remedy period in a validly issued Notice to Remedy Breach.

The RTRAA does not specify when a Notice to Leave can be issued if a breach has not been remedied in the allowed time – there’s no specific time limit. However, if the breach is remedied before the Notice to Leave is issued but after the expiry of the remedy period, if may provide an argument that the Tribunal should exercise a discretion not to terminate: see below and s 337 RTRAA. In cases of unpaid rent, it is necessary to consider s 278 RTRAA which states that acceptance of rent does not operate as a waiver of the tenant’s breach.

Was an application to QCAT commenced within two weeks?

An application to the Tribunal for a termination order for failure to leave is an urgent application as defined in s 415. Urgent applications can be made directly to the Tribunal, without first applying to the Residential Tenancy Authority for dispute resolution.

However, the Tribunal proceedings must be commenced within the two-week period prescribed by s 293 of the RTRAA. This provision is mandatory and no relaxation is permissible: Symes v Kahler [2022] QCATA 35, [11]. The Tribunal does not have power to extend this time: Edenborough v Mt Isa Properties and Auctioneers [2011] QCATA 231; Symes v Kahler [2022] QCATA 35, [13]).

The requirements of s 293 RTRAA were discussed in detail in Essam & Miles v Elvin [2023] QCATA 128, where the Hon Peter Murphy SC confirmed that these requirements where ‘not a “technical issue” and nor is it a procedural irregularity which can be waived. Rather, compliance with the sequential steps envisaged in sections 280, 281 and 293 of the RTRA is the precondition to the Tribunal having jurisdiction to make the orders sought:

The requirements are not merely a matter of form; they are preconditions to QCAT’s jurisdiction to grant relief under the RTRA. The path that the agent took to proceedings in QCAT in this case required a series of steps to be taken in order. Each stood like one in a line of dominos. If one fell it brought the others down with it: Lowe v Aspley [2010] QCATA 59, at [11] per Kingham DCJ, Deputy President.

An application is not filed until it is recorded and stamped by the Tribunal, which occurs after delivery. See Pearce v Rummery [2022] QCATA 16, citing rule 13(1) QCAT Rules.

The Tribunal’s discretion to order termination

Section 337(2) of the Act provides that the tribunal may make the termination order if it is satisfied that:

• The lessor has established the ground of the application and notice to leave; and
• The tenant committed the breach of the agreement stated in the notice to remedy breach about which the notice to leave was given; and
• The breach justifies terminating the agreement.

Section 337(3) of the Act provides that, when deciding whether the breach justifies terminating the agreement, the Tribunal may have regard to:

• The seriousness of the breach;
• Any steps taken by the tenant to remedy the breach;
• Whether the breach was recurrent and, if it was recurrent, the frequency of the recurrences;
• The detriment caused, or likely to be caused, to the lessor by the breach; and
• Whether the lessor has acted reasonably about the breach; and (f) Any other issues it considers appropriate.

The making of a termination order, and the subsequent warrant of possession, requires the Tribunal to exercise a discretion: Essam & Miles v Elvin [2023] QCATA 128, [39].

When determining whether the breach justifies terminating the agreement, the Tribunal is exercising its mandatory function to make an “…order that it considers fair and equitable to the parties to the proceeding in order to (legally) resolve the dispute”: Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1).

Failure to consider whether a breach justifies termination, as required by s 337 RTRAA, denies the tenant procedural fairness and is an error of law: Essam & Miles v Elvin [2023] QCATA 128, [43].

For detailed consideration of the operation of s 337 and the Tribunal’s discretion, see:

• Madsen v Wiltshire [2010] QCATA 11 where the Appeal Tribunal upheld the initial decision not to terminate an agreement where the tenant had rectified the arrears and where the arrears was not a recurrent issue.
• Collins v Blackburn [2017] QCATA 69 where the Tribunal set aside the earlier decision to terminate an agreement for rent arrears. In reaching its decision, the Tribunal considered that the arrears for rectified, was not recurrent, and the order of a termination may impact the tenants rental history.  
• Barker v Department of Communities, Housing and Digital Economy [2023] QCATA 123 where the Tribunal confirmed the initial decision that the breach (not keeping the property a satisfactory state) justified the termination.
• Walker v Next Rentals [2014] QCATA 237 where the Tribunal confirmed the initial decision to terminate a tenancy where the tenant ‘was only 2-3 days behind’ in rent. In coming to this decision, the Appeals Tribunal found that Member in the first instance was in error for not hearing from the tenant was to why the termination would be unjustified. However, the Appeals Tribunal found that no substantive injustice had occurred.
• Dormer v Boyd [2014] QCATA 54 where the Tribunal confirmed that it must satisfy itself that the tenant committed the breach of agreement stated in the notice to remedy breach, including that the amount of unpaid rent alleged in the notice was correct. If the learned Adjudicator was not satisfied, they could not order termination of the tenancy agreement.
• Southport Realtor Pty Ltd t/as Shores Realty v Rostas [2014] QCATA 13 which considers whether the Tribunal has power to terminate an agreement for unpaid rent where the rent has subsequently been paid.
• Bunting v Jeff Jones Real Estate on behalf of Adrian Vos [2015] QCATA 52 where the termination order was confirmed.