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QCAT: Warrant of possession process

Feb 2017

Gabrielle Mewing, QCAT Adjudicator.

What is a warrant of possession?

A warrant of possession is a document that authorises the police to remove a tenant from residential premises by a certain date.

If QCAT grants an order terminating a lease, the tribunal must also issue a warrant of possession. 

What is required before a warrant of possession is issued?

A lessor (or agent) may apply to QCAT for termination of a lease of residential premises for any of the following reasons:

  • where the tenant has failed to leave the premises after a valid Notice to leave (Form 12) has been given
  • where the tenant has failed to leave the premises despite giving the lessor (or agent) a valid Notice of intention to leave (Form 13)
  • where the lessor would suffer excessive hardship if the lease were to continue
  • where the tenant (or a guest of the tenant in the case of public or community housing) has caused or is likely to cause serious damage to the premises or injury to the lessor, agent or neighbours
  • where the tenant (or guest of the tenant in the case of public or community housing) has behaved in an objectionable manner towards the lessor, agent or neighbours, or is causing a serious nuisance
  • where the lessor and tenant are incompatible (only available for short tenancies in moveable dwellings) or
  • where the tenant has committed at least three breaches of the same provision within 12 months, the first two of which were remedied within the allowable period after a valid Form 11 Notice to remedy breach was given (known as the 'repeated breaches' section).

A termination application will be considered at a hearing before a QCAT Adjudicator or Magistrate at which both parties may give evidence.

At the hearing, the Adjudicator or Magistrate will review the application to make sure all of the requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (‘RTRA Act’) are met.

A termination order will only be made and warrant of possession issued if the Adjudicator or Magistrate is satisfied the lessor has fulfilled all legal requirements, the grounds of the application are clear and valid, and the tenant does not have any legitimate defence.

What should I include in my application?

When seeking a termination and warrant of possession, the documents that you should file with your application will depend on the reason for seeking the termination.

When termination is sought for failure to leave or for repeated breaches, the application should include:

When termination is sought because of the lessor’s excessive hardship, the application should include:

  • the lease and
  • proof of the lessor’s hardship (e.g. bank statements, credit reports, bank letters, medical reports) and
  • anything else directly relevant to the application.

When termination is sought for damage, injury, objectionable behaviour or incompatibility, the application should include:

  • the lease and
  • evidence of the damage, injury, objectionable behaviour or incompatibility (e.g. photos, witness reports) and
  • anything else directly relevant to the application.

How long does it take to get the warrant of possession?

Applications for termination under the RTRA Act are 'urgent applications'. This means that they are given priority over most other QCAT matters and a hearing is scheduled as soon as possible after the application is filed. As a general rule, the hearing will take place within a few weeks of the application being filed.

Even if the Adjudicator or Magistrate is satisfied that a termination order should be made, they have discretion as to when the order takes effect. In some circumstances it is appropriate to terminate a lease immediately, while in other cases there may be grounds for terminating at a future date which may be several weeks or (in rare cases) months away. The termination date is determined after careful consideration of the evidence and parties' submissions.

No matter the termination date, a warrant of possession must take effect within 3 days of the termination date. In most cases, the warrant of possession will authorise a period of up to 14 days for the police to attend the premises to execute the warrant.

What happens after QCAT makes the termination order and issues the warrant of possession?

The QCAT registry will issue a warrant and send to the local police. In some circumstances, the lessor or agent may be required to collect the warrant from the QCAT registry and give it directly to the authorised police station.

The warrant must come into effect within 3 days after the termination date. The warrant is effective for 14 days and can be enforced at any time during this period.

If the tenant vacates and returns the keys to the lessor or agent within the 14 day warrant period, the lessor or agent should inform the police.

The lessor or agent should not re-enter the premises until either the keys have been returned by all tenants or the police have executed the warrant.