Due to external circumstances I have had to move twice this year. Despite being a model tenant who left the houses extremely clean, each time the landlady/agent found reason to withhold a portion of my bond. In the first case the landlady wanted landscaping rather than the informal garden I had developed over a number of years. In the second case, it was without my agreement over reasons that I disagreed with.
I have since discovered that nobody in my circle of friends has ever had their full bond returned, even if they hired professional cleaners. However, the thought of the cost and stress of taking their cases to the Victorian civil and administrative tribunal has prevented them all from doing something about it.
Is it becoming a trend in the rental market? And is there an easier way to stick up for your rights than taking the legal avenue?
– Sue, Victoria
I am so sorry this has been your rental experience. I wish I could be the bearer of good news but the situation for renters in Australia is pretty dire.
Rental shortages mean it’s a “landlord’s market” – one in which landlords have the upper hand and which has resulted in increasingly unaffordable rental prices. It has also created a situation in which tenants generally toe the line (even when the landlord is the one in the wrong) due to a number of factors, including the fear of losing their tenancy and a lack of genuine alternatives.
In your case and that of your friends you’re right in saying that sticking up for your rights when you’re leaving a rental isn’t easy. Stress, cost and the time of complex and onerous dispute resolution processes can often outweigh the loss of part or all of a bond. But that doesn’t mean losing it in every instance is justified.
When you move out of a property in Victoria the obligation is on you to return the property to the condition it was in when you moved in (not including fair wear and tear). The example used by Tenants Victoria is that if you’ve hung pictures on the walls using hooks, it’s on you to remove the hooks and patch any holes. On the other hand, fair wear and tear, as defined by Consumer Affairs Victoria, includes “deterioration because of reasonable use of the property and/or natural environmental forces”, which you do not have to restore.
There are some exceptions to this, which include when the landlord tells you you don’t have to restore the property to its initial condition, or where this is an agreement in place by you and the landlord (for instance, in the terms of your lease).
In terms of your experience with the garden of your previous rental property, if you removed landscaping features and installed your own garden, this means you could have to restore the landscaping upon moving out, unless you had an exemption as agreed with the landlord. However, the landlord cannot claim your bond to make improvements to the garden that weren’t part of the initial condition.
In terms of gardens, unless you damaged permanent features (for instance, if the landlord had decking installed and you removed it, or you took down a wall) or made a permanent structural change (for instance, installed your own decking, or a shed that required the pouring of concrete), you’re fairly free to garden as you please. A landlord cannot refuse you growing a vegetable or herb garden, for instance, or stop you from doing anything that does “penetrate or permanently change surfaces, fixtures or the structure of the property” unless they have a good reason.
More generally, in terms of bond claims, if a landlord wants to take you to Vcat, they have to be able to prove they’ve suffered financial loss for damage you were responsible for creating in breach of your rental agreement or the Victorian Residential Tenancies Act. They also have to prove the amount they are claiming is reasonable, and they have to have evidence, such as invoices and receipts, that they spent the money they are claiming for fixing the damage.
In vexatious cases, landlords might not be able to show this – but may also still use the threat of Vcat as a deterrent to you pushing back.
If you or any of your friends feel as though your bond has been wrongly withheld by a landlord, the first step is to make sure you have well documented the condition of the property, both when you moved out and when you moved in. You should also document any repairs that are needed over the course of your tenancy, and save your communication with the landlord and their agents about this. Take lots of photos and keep them in your back pocket.
The next step would be to put your defence in writing – with all your documentation – to the landlord or their agent. If you’ve moved or are moving out already, the threat of a rent hike or eviction is moot, so don’t be afraid to rationally make your case in writing.
If that’s not fruitful, the next step is to talk to your local tenants’ advocacy organisation for free advice. In Victoria, Tenants Victoria can help you with information about defending bond compensation claims, and in some cases may be able to offer you free legal advice.
Ultimately, if you feel the claim the landlord is making against your bond is wrong, it may still be worth the effort of appearing before Vcat. While costs aren’t generally awarded by Vcat, you can also apply to have your costs covered in certain situations. A bond can be a significant amount of money so, if you have the bandwidth for it, disputing a claim against you if you know the claim isn’t right may well be worth it in the end.
The reader’s name has been changed for legal reasons
Kat George is a board member at Australian consumer advocacy group Choice. Her Guardian column is written in her capacity as a policy expert and does not reflect the views of Choice
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