Law Current to: September 8, 2025

Section 290A Evictions

Section 290A of the Residential Tenancy and Rooming Accommodation Act 2008 (RTRAA) permits a public housing lessor to give a tenant a notice to leave if the lessor reasonably believes the tenant has used the property for an illegal activity whether or not anyone has been convicted or found guilty of an offence in relation to the activity.

If a tenant does not leave within the specified time, 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 340 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.

What amounts to ‘Reasonable Belief’?

A key matter to consider is what will be sufficient to found “reasonable belief”. It has been suggested that the Tribunal ought not to look into the reasonableness or otherwise of the lessor’s belief. However, on the whole, this suggestion does not seem to have been followed.

Whether a belief is “reasonable” is necessarily a question of fact, but the caselaw on s 290A suggests that the relevant threshold is a low one. In Queensland v Turnbull, which was upheld on appeal, the Tribunal put the matter in this way:

[33] In my view section 290A of the Act provides a low threshold test for the Department to give a Notice to leave premises on a reasonable belief. In this case I am satisfied that the [circumstances] rais[e] a reasonable belief that the tenant or his guests, have engaged in an illegal act and used the premises for an illegal purpose. The Department can, once formed a reasonable belief that premises or property has been used for an illegal activity, seek to terminate, irrespective or not that anyone has been convicted or found guilty of an offence in relation to the activity.

This passage was cited with approval in Watson v Queensland. The fact that the threshold is low is also confirmed by the explanatory notes to the bill which inserted s 290A.

The Tribunal’s discretion to order termination

On a plain reading of s 290A(2)(a), the only criterion to determine whether a notice to leave has been validly issued is whether the lessor “reasonable believes” the tenant or a guest of the tenant or a person allowed on the premises by the tenant has engaged in activity that meets the definition of a serious breach. Under s 290A(4), a belief may be reasonable even in the absence of a conviction or finding of guilt.

Provided the notice to leave has been validly issued, the Tribunal may make the termination order: s 340 (2) RTRAA. In accordance with section 32CA(1) of the Acts Interpretation Act 1954 (Qld), the word “may” used in relation to a power indicates that the power may be exercised or not exercised, at discretion.

Importantly, the process lacks the safeguards that exist in the case of an ordinary breach. In particular:

• It is not necessary for the lessor to provide a notice to remedy breach (and it seems a serious breach consisting of illegal activity may in fact be considered irremediable: 4Walls Ltd v Kjaer-Olsen [2014] QCATA 278, [13]-[14]).
• The Tribunal need not have regard to the ordinary factors relevant to the discretion to grant a termination order: Queensland v Roeson [2014] QCAT 558.
• Having said that, the use of the permissive word ‘may’ in s 340(2) indicates that the Tribunal is not bound to make the order just because the notice is valid: Betts v Department of Housing and Public Works [2019] QCATA 180, [55]. The decision remains a discretionary one. In this regard, s 13 of the Queensland Civil and Administrative Tribunal Act requires the Tribunal to “make orders that it considers fair and equitable to the parties to the proceeding”: See Department of Communities, Housing and Homelessness Services v Kairouz [2010] QCAT 355, [10].
• While the decision remains discretionary, the Tribunal tends to view a termination order as “fair and equitable” where there has been illegal activity. At least one relevant factor is that the tenant is depriving others who are also in need of housing: Department of Communities, Housing and Digital Economy v Ward [2023] QCATA 56, [13].

The Tribunal has found a termination order to be fair and reasonable even where the tenant will become homeless as a result of the termination order. In Queensland v Turnbull it was said:

I find that the evidence presented by the tenant would not persuade me to exercise my discretion and allow the periodic tenancy to continue. In balancing the competing interests of the parties I find that the interest of the Department and the neighbours living next to Mr Turnbull to be more compelling to protect than the interest of Mr Turnbull. I find that unfortunately the order I propose to make will mean Mr Turnbull is likely to be homeless, but I find that he has engaged in an illegal activity by storing hazardous chemicals and equipment in his unit, and used his premise for an illegal purpose, and that his actions could have had life threatening consequences for both him and his neighbours.

The Tribunal’s discretion was also consider in the Department of Communities, Housing and Digital Economy v Ward [2023] QCATA 56, where it was stated:

The learned member in exercising the discretion took into account that Ms Ward was not convicted of using drugs and also that Ms Ward would adhere to her obligations under the tenancy agreement in the future, by reason of the bringing of the application for termination. In doing so he did not give sufficient weight to the other important and serious considerations referred to above. In particular, the seriousness of the breaches of the tenancy agreement and her conduct during the course of the tenancy. One can understand the sympathetic approach and the desire to give Ms Ward a second chance, but where there is a serious breach or breaches of the tenancy agreement the RTRA Act provides a remedy to lessor’s which cannot readily be overlooked. The Department was entitled to the termination order.

Caxton Legal Centre’s ‘Objectionable Behaviour Evictions in Social Housing‘ provides a useful discussion of s 290A published decisions.

Although the published decisions evidence the difficulties in establishing that it would be fair and equitable for the Tribunal to exercise its discretion not to order the termination order, consideration should be given to the arguments that could be raised at any Tribunal hearing.