So what happens if your agent or landlord says that they want to do another inspection after your final inspection? Can they do this?
The short answer is no.
Clauses 78-79 of the standard residential tenancy terms (part of all tenancy agreements in the ACT) only allow the landlord to do one final inspection, with one week’s written notice, at an agreed time. Normally, if a landlord goes back and does a re-inspection, it will be in breach of all these requirements. You can argue at the Tribunal that evidence that has been obtained unlawfully should not be admitted except in exceptional circumstances, because accepting this evidence rewards and encourages these breaches of your agreement.
Also, tenant is not responsible for the condition of the premises once the tenancy has ended and they no longer have access to them. The landlord can hold the final inspection any time within the last month of the tenancy. If they are not available to do a final inspection on the day that you move out, they can do one earlier. If they wait until someone else has moved in, or until some time later when dust can settle and weeds can grow or burglars can break in, then the landlord will have difficulty establishing that any issues with the property were there when you vacated.
The Tribunal made a decision about this issue in another case. They decided that the agent or landlord cannot raise issues after the final inspection if they should have been obvious at the time of the inspection. For example if there was a big stain on the carpet, and the agent or landlord could see it but didn’t raise the issue with you, you might not have to pay for cleaning or repairs. However, if the issues were not obvious at the time, then the agent or landlord may be able to raise them. However there is still a limit on when the agent or landlord can raise these issues after the tenancy. Follow the link below for a useful decision that you can read and quote to your landlord or real estate agent. The most important part can be found at paragraph 14.
Where a landlord has a real estate agent, the agent has the authority to do the inspection. A landlord can do the final inspection instead of the agent, or with the agent, or can send a family member along. However, if the agent does an inspection by themselves, the landlord cannot then complain if they don’t trust their agent or the agent was incompetent. The landlord may have a claim against their agent, but this does not entitle them to do extra inspections outside the standard terms.
There is only one circumstance in which an agent can do another inspection after the final inspection. The re-inspection must only be on areas that were identified as requiring attention. This inspection should not include areas or items that were accepted at the final inspection. You should however note that once an area has been identified as needing further cleaning or repair, you should act within a reasonable time to get the work done. Otherwise the agent may have the work done themselves and you may be liable for the costs.
Finally, a tenant is entitled to rely on statements made by an agent, such as that “everything is fine and we will return your bond”. And if you do in fact rely on these statements to your detriment, such as budgeting for the return of you bond soon after your tenancy ends, or not taking evidence about the premises that you otherwise would have (e.g. photos), it becomes “inequitable” or unfair for the landlord or agent to go back on their promise and dispute the return of your bond. This is a legal principle known as “estoppel” – that the landlord should be “stopped” from going back on a promise that you have relied on to your detriment.
Note: if you are still living at your property and have had a normal routine inspection, and the agent or landlord wants to “reinspect” or says you have “failed” the routine inspection – see our FAQ on those issues here.
Extra Tips for Final Inspections:
Take a blank Condition Report (PDF), a bond refund form, a pen and a camera to the final inspection. If the landlord or agent is happy with the premises, ask them to sign the bond refund form. If they sign it, take it so that you can lodge it with the Office of Rental Bonds (it is common for real estate agents to say they will lodge the form and then not lodge it). If they won’t sign it, ask for a copy of their inspection report. If they don’t give you a copy then, or if you don’t agree with it, make your own report and take photos. Read Tenancy Tips: Bond for more information.