Locked out of premises
If a tenant has breached the terms of their lease agreement and has not rectified the breach in accordance with a correctly served Notice to Remedy Breach, the lessor may lock them out.
Important facts
- In certain circumstances lessors may lawfully lock out tenants from commercial and retail premises.
- Courts have jurisdiction to decide the validity of notices and whether a lock out was lawful.
- QCAT may make an interim/injunction order under the Retail Shop Leases Act 1994 if a situation emerges that requires urgent action.
- QCAT does not have jurisdiction to hear matters involving a commercial (non-retail shop) lease.
- A tenant or ‘designated person’ may have limited time to apply to the courts for relief (Property Law Act 2023 (PLA) section 160).
Prior notice
Generally, lessors cannot take possession and re-enter (lock out a tenant of) the premises without providing notice (typically a breach notice).
- Specific conditions outlined in the lease agreement typically grant the right of re-entry to the lessor.
- If a tenant abandons the premises, the lessor may not need to give the tenant a Form 7 Notice or go to court to take back the property, but they must notify each ‘designated person’ (section 156).
- If an invalid notice was relied upon by the landlord for a ‘lock out’, a tenant may have a right to compensation.
Belongings
Both the tenant and the lessor have obligations outlined in the lease agreement that they must adhere to. When a commercial or retail tenant has been locked out, the terms of the lease may stipulate:
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Any items left in the premises become the property of the lessor.
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Access must be granted for removal or disposal of perishable items.
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A timeframe to remove assets and equipment from the premises.
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Tenants to remove fixtures, fittings and furnishings after the lease has ended.
Negotiating the return of personal items can be very important. Lessors (if asked) may allow removal of:
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Customer property,
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Staff property or tools,
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Personal belongings,
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Tools that might allow you to keep earning an income,
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Goods held on consignment,
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Equipment provided under contract (e.g. supplier fridges) or leased equipment.
If the tenant has given a personal guarantee for the lease (and potentially also given a personal guarantee for the stock, plant, and equipment still in the premises), there may also be a risk to the tenant’s personal assets.
Items in the PPSR
If lessors and tenants have personal property security interests registered on the Personal Property Securities Register (the PPSR) they may be subject to different obligations in relation to that/those security interests.
Impact of lock out
Lock out response options
The conditions granting the lessor the right of re-entry (to lock you out) can vary considerably from lease to lease.
If you find yourself locked out, you should urgently seek legal advice from a qualified attorney experienced in property and tenancy law on these steps:
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Assess whether the lessor’s actions are consistent with the lease and the Property Law Act 2023.
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Assess the viability of pursuing legal proceedings for relief or compensation.
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Apply to QCAT or a court for urgent relief or to QSBC for a mediation to negotiate an end to disputes.
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Communicate politely and assertively
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Communicate with staff and customers.
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Keep detailed records.
The conditions granting the lessor the right of re-entry can vary considerably from lease to lease.
Top tips
- Tenants should seek urgent legal advice from a qualified attorney experienced in property and tenancy law.
- The QSBC may be able to offer mediation; however, it may not be suitable, or required, in urgent situations.
- The QCAT website explains the process for making an application for interim/injunction orders.
Keep detailed records
If you find yourself locked out without the proper notice, see the ‘Lock out response options’ section in this fact sheet in particular – keep detailed records.
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A contemporaneous note is a written piece of evidence which relates to the facts of a conversation or interaction.
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In Queensland, section 92 of the Evidence Act 1977 relates to documentary evidence in civil proceedings.
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Keeping such notes can be beneficial in the future if litigation is commenced, as it could be used by a Court or Tribunal as evidence to substantiate a particular claim.
More information
Contact the QSBC by submitting an online enquiry or calling 1300 312 344.
Download the Locked out of premises factsheet.