If the landlord wants
your bond, it is up to them to prove their claim. They need to prove to VCAT
- they have suffered financial loss or property damage, and
- the loss or damage resulted from your breach of the lease or the Residential Tenancies Act 1997 (RTA),
- the amount they are claiming is reasonable.
When preparing your
case, you should look at those three things the landlord has to prove. Three
other things to consider are:
- time limits for landlord applications
- fair wear and tear, and
time limits for landlord
If the landlord wants to apply to VCAT for your bond they are supposed
to lodge their application within 10 business days of your tenancy ending. VCAT
can sometimes extend this time if there is a good reason. If you do not believe
there is any good reason why the application wasn’t made in time, at the
hearing you should object to any extension being given.
fair wear and tear
If the landlord
claims there is property damage, VCAT must decide whether it is damage or just
‘fair wear and tear’. For example, if the carpet has worn down over time by
people walking on it, it is fair wear and tear, not damage. The best way to
check if something is fair wear and tear, is to think about normal use. If
things wear out with normal use it is most likely fair wear and tear. If the
landlord wants to replace things that have worn out through fair wear and tear,
they have to pay for it themselves. It should not come out of your bond.
The landlord also
cannot claim the full cost of replacing something that was not new when it was
damaged. VCAT will allow for ‘depreciation’ which means the older something
gets, the less it is worth.
The Australian Taxation Office produces an annual guide for rental property owners with information on how rental properties depreciate over time, including a table of common household items and their depreciation life span (see Rental properties 2020 [ATO website]). You can use this information to work out how long something is worth any money. For example, carpets have a life span of 10 years. So the carpet declines in value by 10% every year. If the carpet is over 10 years old, the value is zero.
If the landlord is claiming costs for cleaning, can they prove these things?
- Have they suffered financial loss? Can they prove they have actually spent the money they are asking for on cleaning the property?
- If they have, is it because you breached the law or your lease?
- Is the amount reasonable?
The law says you only need to leave a property ‘reasonably clean’. The landlord or agent cannot ask you to do more than the law says, even if it’s in your tenancy agreement. For example, even if your tenancy agreement says you need to steam clean your carpets when moving out, the law does not require you to do this. If you have a steam cleaning term in your lease, you can argue that it is not valid under the law.
You should also
look at your condition report and any photos showing how clean the property was
when you moved in. By law the landlord has to make sure the property is
reasonably clean on the day you are to move in, so if they want it returned
cleaner than it was when you moved in you can argue that it is not reasonable.
And you should look at any exit photos or reports you have in case the cleaning the landlord is asking for happened after you moved out and returned the keys.
If you agree that the landlord is entitled to part or all of your bond for cleaning but believe the amount they are claiming is unreasonable, you will need to provide evidence of this. For example, you could contact cleaning companies to see how their rates compare to the landlord’s claim and if the cleaning could have been done for less.
If the landlord is claiming costs for property damage, can they prove
- Have they suffered financial loss or property damage? Can they prove they have actually spent the money they are asking for on repairing property damage?
- If they have, is it because you breached your lease or the law?
- Is the amount reasonable?
The law says you
need to take care to avoid damaging the property and reasonable care to avoid
damage to common areas, if any. If the damage is simply due to fair wear and
tear through normal use, this is not your responsibility. It is the landlord’s
responsibility to pay for repairs.
It is also not your
responsibility to pay for damage caused before you moved in or after you moved
out. If the landlord is making a claim on your bond for damage you did not
cause, you should provide evidence of the state of the property at the start and end of your lease (eg Condition Report, photographs, witness
If you agree that
the landlord should get part or all of your bond for damage that you caused,
but believe that the amount they are claiming is unreasonable, you will need to
show evidence of this. If the landlord is claiming the cost of repairs or
replacement of property or fixtures, you should get quotes from shops or
tradespeople to show that the landlord is trying to claim too much.
You should also
check the age of the item the landlord is claiming for to make sure
depreciation is included to get its true current value. The landlord cannot
claim the full cost of replacing something that was not new when it was
The landlord’s claim must be in
proportion to the damage caused. For example, they cannot claim for the cost of
repainting the entire house when the paintwork is damaged in just one room.
example: claim for damage
applies for the full replacement cost of brand new, high quality carpets
throughout the entire house because there is a small stain on the carpet in one
of the rooms, which was caused during the tenancy. The landlord is trying to
justify their claim by saying if they have to replace the carpet in the one
room where the stain is, the new carpet in that room won’t match the carpet in
the rest of the house, so the entire house needs to be re-carpeted.
At the time the
tenants moved in:
- the property was about 20 years old
- the carpets were the original carpets from the time the property was
- the carpets did not appear to be of a very high quality as they showed
signs of wear in high traffic areas and were even worn through in some places
- there were also several small existing stains on the carpets throughout
- the condition report makes reference to the stains and wear marks that
were there before the tenants moved in
- photos taken by the tenants and the agent also show the stains and wear
marks were there before the tenants moved in.
At the time of the
- the original carpet is still in the property, nothing has been replaced
- the property has been relet at the same price
To prepare their
case, the tenants need to answer these questions:
- Has the landlord suffered property damage? Or is it fair wear and tear?
- Has the landlord suffered financial loss?
- Is it because the tenants breached their lease or the law?
- Is the amount reasonable?
- Has depreciation been included to get the true current value?
The small stain
caused during the tenancy could be considered property damage if it is not wear
and tear from normal use. For example, it might be wear and tear if it is not
really a stain, but more of a mark visible due to the carpet wearing through
from normal use.
But even if there
is property damage, the tenants can argue the landlord has not suffered any financial
loss as a result of the stain because:
- they have not spent any money changing the carpets
- they have been able to relet the property for the same price, and
- the carpets have no financial value due to their age as they have fully
depreciated (the ATO guide lists carpets as having a 10-year life (see Rental properties 2019 [ATO website]).
Is the amount reasonable?
The tenants can
also argue that the landlord’s claim, is not
- the claim is not in proportion to the damage caused and that it is
unreasonable to ask for the carpets to be replaced throughout the entire
property for a small stain in one room
- there are methods other than replacing the carpet that could be taken to
deal with the stain, such as cleaning or repairing
- the quality of the existing carpet is less than the quality of the carpet
the landlord is claiming for
- that the carpets were old, stained and worn before they moved in, and
should be replaced as part of the landlord’s duty to maintain the property in
good repair, regardless of any stain left during their tenancy.
The tenants should
collect evidence to support their defence, such as the Condition Report, entry
and exit photos, quotes for cleaning or repairing the carpet. They can even
include quotes for new carpets of a similar quality to the existing carpets to
show what the landlord is asking for is excessive and not reasonable.
It will be up to
VCAT to decide if any of the bond should be paid to the landlord. But even if
VCAT does decide that the tenants have some liability for property damage, a
well prepared defence can help reduce the amount the landlord is claiming to an
amount that is reasonable.