Compensation and compliance
There are specific duties under the Residential Tenancies Act 1997 that landlords (and tenants) are required to meet.
A failure to do so is a ‘breach of duty’. If your landlord breaches a duty under the Act, you can serve them with a Breach of Duty Notice, which puts the landlord on notice that they must comply with the duty that you think they have breached and/or pay you compensation if you have suffered a loss or inconvenience.
If they fail to comply or pay you compensation, you can apply to the Tribunal for a compliance and/or compensation order. (See ‘Breach of Duty Notice’ below for more information.) Your landlord can also give you a Breach of Duty Notice if you breach a duty under the Residential Tenancies Act 1997.
- tip If your rental property is managed by an owners’ corporation (body corporate) and you have a complaint or are having a dispute, you can follow the complaints procedure or apply directly to the Victorian Civil and Administration Tribunal (Owners’ Corporation List). For more information, contact the Tenants Union.
Tenant compensation claims
Breach of Duty Notice
A Breach of Duty Notice gives your landlord 14 days to comply with their duties under the Residential Tenancies Act 1997 and/or pay you compensation for loss or inconvenience.
The specific breaches of duty are listed on the inside of a Breach of Duty Notice, available from the Tenants Union or Consumer Affairs Victoria.
It is usually best to wait until the breach has been rectified (eg the repairs have been carried out) before you make your claim. When you fi ll out the Breach of Duty Notice, you must include:
- details of your landlord’s breach (eg they have not maintained the premises in good repair)
- details of the loss or damage caused
- the amount of money you are claiming for anything that can’t be fi xed (eg goods damaged by water leaking through the roof)
- the compensation you are claiming for any money that you spent (eg the cost of cleaning clothes that got wet and dirty as a result of a roof leak) or inconvenience that you experienced (eg staying at a friend’s house while your bedroom was flooded)
If your landlord fails to pay you compensation or comply with your request that they remedy their breach within 14 days of receiving your notice, you can apply to the Tribunal. (Add 2 days for delivery if you send the Breach of Duty Notice by mail.)
Fill in the Tribunal application form and attach a copy of your Breach of Duty Notice. (See ‘Applying to the Tribunal’ more information.)
The Tribunal will send you a Notice of Hearing, which will tell you the date, time and place of the hearing.
If you have already moved out, you do not need to serve your landlord with a Breach of Duty Notice in order to claim compensation.
You can simply apply to the Tribunal. Include details of your loss and the amount that you are claiming on the Tribunal application form.
At the Tribunal hearing, you must prove that you suffered a loss or inconvenience as a result of your landlord or agent’s failure to meet their legal obligations under the Act or your tenancy agreement.
You will also need to explain how you calculated any amount that you are claiming as compensation. You should discuss your case with the Tenants Union before going to the Tribunal.
Landlord compensation claims
The landlord can make a compensation claim against you for damage or loss at any time during your tenancy, although most compensation claims by landlords are made after the tenancy has ended. Often a claim is made against the bond at the same time.
If your landlord’s claim is less than or equal to the amount of your bond, they do not have to make a compensation claim, but must follow the bond claim procedures. (See ‘Getting your bond back’ for more information.)
You should be aware that your landlord can make a claim up to 6 years after the damage or loss was supposed to have occurred.
Remember your landlord can apply directly to the Tribunal for compensation if you have already moved out, or if their claim involves a responsibility under your tenancy agreement rather than under the Residential Tenancies Act 1997.
If your landlord gives you a Breach of Duty Notice, it should include:
- details of your breach (eg you have broken a window) > what action you should take to fix the problem (eg replace the broken window)
- the amount of money they are claiming for any loss they have suffered
Agreeing to pay the claim
If you agree to pay your landlord’s claim in full, in part or by instalments over time, make sure that you get the agreement in writing and have it signed by the landlord or their agent. Make sure you get receipts for any payments.
Disputing the claim
If you disagree with your landlord’s claim, or you cannot reach an agreement with your landlord as to how much compensation you should have to pay, they will have to apply to the Tribunal to resolve the matter. Your landlord must convince the Tribunal that:
- they have sustained a loss or damage, and
- the loss or damage resulted from your breach of the Residential Tenancies Act 1997 or your tenancy agreement, and
- the amount they are claiming is reasonable
You should contact the Tenants Union for advice on defending a compensation claim.
If the Tribunal has made an order that your landlord has to pay you compensation but you haven’t received the money, there are a number of options open to you.
The best option depends on your landlord’s financial circumstances. You should be aware that there are costs involved with each method and you should contact a Community Legal Centre for advice before proceeding.
For the closest centre go to www.community.org.au. If your landlord applies to the Tribunal for compensation and you are ordered to pay, your landlord can also take steps to enforce the financial order.
Consumer Affairs can prosecute landlords, agents and tenants for failing to comply with a Tribunal order, and this applies to both monetary and non-monetary orders. The penalty is $2,442.80 plus $610.70 a day until the order is complied with, up to a maximum of $7,328.40.