Sisters-in-law: Legal advice on tenant rights on bail and end-of-lease cleaning

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A NSW woman, who has rented a unit for three years, was shocked by her landlord’s ‘stingy’ move after she left.

Welcome to Sisters In Law, news.com.au’s weekly column solving all your legal problems. This week, our resident lawyers and real sisters Alison and Jillian Barrett of Maurice Blackburn give advice on tenants’ rights in relation to their deposit.

Question:

I recently moved out of a rental unit after three years and had it professionally cleaned, including steaming the carpets, before I left. I checked the unit after cleaning and it looked great – probably better than when we moved in.

My private landlord was supposed to meet me to do an exit inspection, but he canceled last minute and asked me to leave the keys in the unit. I was so convinced he would have no problem that I didn’t think to do just that.

Two weeks later I emailed him about the bond which was being held by Rental Bonds Online NSW and he said he had not yet deposited for me to collect it.

Then he said there was a “funny smell” coming from the carpet and he was going to charge me to have it cleaned.

The carpet was at least 10 years old and we steamed it. Plus, it smelled good when I left. He’s always been a miserly landlord trying to avoid paying for repairs and now I can’t believe he’s trying to get me to pay for his disgusting old carpet. What are my rights ? – Eloise, New South Wales

Answer:

Eloise, you have rights in this situation and your ability to stand firm and have them respected will depend on the type of written record you have kept.

Generally, we hope you’ve taken some important steps at the start of your tenancy to protect yourself at the end of your tenancy, especially against a landlord trying to claim your deposit or additional cleaning costs.

Before paying a deposit, you should always ensure that you have not only signed a lease, but also received two copies of a signed condition report from the landlord.

A condition report will describe what the property looked like (or smelled in your case) when you moved in. The more details you include in this report – including photos – the better.

Aside from the carpet being at least 10 years old, you haven’t mentioned what condition it was in when you moved in.

The law states that during your tenancy you must be careful not to damage the property. General wear and tear is allowed, for example, a rug that has been worn down due to general use.

Any damage from wear and tear, or any damage that was present when you moved in (such as an old, smelly carpet), is the responsibility of the landlord.

We recommend that you obtain a copy of the invoice from the carpet cleaners you have engaged and – if they wish – a short letter from them detailing the steam cleaning they performed and the condition of the carpet (including any perfume) after doing so.

You must tell your landlord in writing that they are not entitled to withhold the bond, give them a copy of the carpet cleaners’ condition report and information, and any photos you may have that show that the condition of the carpet is no worse than the general wear and tear.

In this letter to your landlord, ask them to take steps to immediately refund the deposit in full.

If they refuse, you must submit a deposit refund request using your Rental Bonds Online account or by completing a deposit refund request form with NSW Fair Trading. The owner does not need to sign it.

Filing a bail refund claim gives your landlord 14 days to contest your claim and request a hearing in the NSW Civil and Administrative Court (NCAT) to contest the claim.

If he does not do so within 14 days, your deposit will be refunded in full by Fair Trading.

Assuming your landlord wants to dispute your bail claim, you’ll end up defending a claim they made in NCAT.

The NCAT process is relatively simple and you do not need legal representation.

Within seven days of requesting an NCAT hearing, your landlord is required to give you a copy of the release conditions report and a copy of any estimates or invoices for the carpet cleaning they are requesting.

The NCAT will designate a date for the dispute to be heard.

You must prepare your version of the story that details why you are entitled to the full bond and provide evidence such as photos, condition reports, cleaning receipt, letter from the carpet cleaner and all e-mail regarding the condition of the carpet.

The Tribunal member will have read all the documents before the hearing, but make sure you know the facts of your case, as you will likely be asked questions and you will have to dispute what the landlord is saying.

If, in the unfortunate event, the NCAT decides that you are responsible for the alleged “smell”, you must ensure that the owner’s claim for the cost of additional cleaning is reasonable.

The owner cannot bear to make a financial profit from a claim. For example, if the landlord claimed the carpets needed to be replaced and you were responsible for the full cost of that, that wouldn’t be reasonable.

Arguably, the condition of the carpet may be so old, stained and worn that it has no financial value anyway. (The Australian Taxation Office guide lists mats as having a lifespan of 10 years.)

For more information, the NSW Tenants Union may be able to help.

This legal information is general in nature and should not be considered or relied upon as specific legal advice. Persons requiring specific legal advice should consult a lawyer.

If you have a legal question you would like Alison and Jillian answered, please email [email protected]

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