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  • Dirty tricks by some landlords and their agents when tenants attempt to recover their Bond
  • By Mick
  • 21/03/2019 Make a Comment
  • Contributed by: Mick ( 2 articles in 2019 )
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After a marital breakup and presumably reeling from substantial losses and change in circumstances, many parents who once owned property no longer can, falling in status to just a mere tenant in the rental market.

Then, as a tenant wishing to vacate a rented property at the end of your lease or agreed period, you may think that because you have been a model tenant adhering to the terms of the lease, you would get your bond back, in full and without a hitch. Well, think again campers — you just may get a shock when the agent won't agree to release your bond.

Even when you have paid all the rent due, kept and left the rented property in good shape, where your outward condition report is practically the same as your incoming one and the agent makes no complaint, you may still find the agent refusing to sign your RTBA1 bond claim form and making application to VCAT to deduct compensation from your bond under sections 417, 418 and 419 of the RTA2 and section 126 of VCAT Act3 if they make an application later than 10 days after you have left the property.

Yes that's right, compensation, but for what you ask?

Well, on this occasion, the agent was attempting to clawback from the bond $465 of compensation already given to the tenant for a water tank leak under full liability of the landlord. Mind you, this amount offered by the landlord was only half of what the tenant claimed in actual loss.

The first part of the agent's trickery and deception was to refuse paying any compensation separately, via EFT or cheque as the tenant requested, but have the compensation deducted from the rent. In other words pay next months rent less $465 forming acceptance of the $465 and not the original claim of $927. Whilst it did feel somewhat peculiar to the tenant, there appeared to be no entrapment or real cause for concern at this stage.

The second part of the agent's trickery was to name the tenants compensation as a "rent credit" by which the agent sought to mislead VCAT and have them refund the rent credit under an alleged breach of agreement scenario where the tenant was given this credit to pay the water bill, yet failed to do so. In reality however, there were no terms or conditions creating any obligation upon the tenant when accepting any compensation. So clearly, the landlord's case must fail.

And it was dismissed for the reason that VCAT had no statutory power to award the landlord compensation from a tenant's bond due to the landlord's complaint not falling within section 419 or 210 of the RTA.

So, whilst unpaid rent or property damage may give rise to a valid claim for a landlord to make, which is typically a breach of the lease agreement entered into between landlord and tenant, agents and landlords may twist a compensation type situation during the tenancy to fall under the guise of unpaid rent to clawback any compensation originally paid. It appears to be a dirty, underhanded and unfair trick to say the least, which tenants would do well to be aware of.

What also appears to be unfair is that the landlord firstly pays no application fee to VCAT to have a stab in the dark at claiming some apportionment of the tenant's bond, even if there is no merit in the claim. Secondly, through the tenant being naturally compelled to attend the tribunal to assert their rights, while of course being under no formal obligation to VCAT or the landlord to attend, if they are successful and the application dismissed, the tenant is denied their costs. Whether this be for inconvenience, loss of time, preparation, parking, lost income or an unfounded claim. From the view of the tenant, who is still penalised for having done no wrong, this can only be seen as an abuse of process that causes them a detriment.

Further, if the landlord fails to do all things necessary to release the bond, the tenant can and must make application under section 419 of RTA.

Citations:
1 - Residential Tenancies Bond Authority
2 - RESIDENTIAL TENANCIES ACT 1997 (Vic)
3 - VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998


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