How do I defend a claim on my bond for damage to a property?

If you think you’re not responsible or shouldn’t have to pay then you may be able to defend a claim on your bond.

The Residential Tenancies Act 1997 (ACT) (“RTA”) and 100 clauses in the Standard Residential Tenancy Terms (“SRTT”) set out your responsibilities when you leave a rental property. You don’t have to pay for repairs or cleaning if you can show that:

  • The problem was there when you moved in, for example it is listed on your condition report
  • The item is in substantially the same condition and cleanliness as when you moved in
  • The difference in condition is due to fair wear and tear. For example minor damage caused through normal and reasonable use of the property. See our Bond information on what constitutes “fair wear and tear”.
  • The damage wasn’t caused by a tenant/guest or pet at the property. For example, the item just wore out, or damage was caused by a storm. Remember you must report repairs issues to the landlord/agent.
  • The damage was caused by someone who was on the property without your consent and who was not a tenant. For example somebody broke in, or the damage was caused during domestic violence. You should also report such incidents to the Police.
  • You caused it but not deliberately or negligently – you were taking reasonable care
  • The landlord hasn’t suffered any loss. For example the landlord was intending to do renovations anyway, or the item was valueless.
  • The landlord raised the issue too late (see our FAQ on Additional Final Inspections)

If you agree that you are responsible for repairs, but you don’t think you should have to pay the full repair cost. Remember that:

  • A tenant cannot be required to pay for improvements to the property [cl 65].
  • The landlord can’t get compensation for any part of the loss that they could have reasonably avoided [section 38, RTA].

If you agree that you are responsible for damage or cleaning, you may wish to consider what the actual useful life of the item was, what the landlord’s actual loss is and whether repairs or replacements might constitute improvements.

Bond, Replacing Damaged Items and Tax Depreciation

If you are responsible for damage, the landlord cannot claim for any part of the cost that could have reasonably been avoided (section 38). If it is reasonable to repair the item, you should not be charged to replace it. If the item was past its useful life, you may be able to argue you should not be responsible for whole cost of replacement. Under tax laws, items in residential properties are given a certain ‘useful life’. You may find it helpful to review the information about tax deductions generally on the ATO website via this link.

This means that a landlord can claim tax deductions on the expectation that items in the property will depreciate (or wear out) at a certain rate and will on average be valueless after a certain number of years. If the item has to be replaced, the age of the damaged item might change how much you have to pay for repairs or compensation or out of the bond. If an item is old, you should not pay the full cost of replacing it, because then you would be paying for an improvement. Under clause 65, the landlord cannot make you pay for improvements.

In order to work out whether you should be responsible for the full amount the first step is to check what the useful life of the item was.

The tax depreciation scale for the 2014/2015 year can be found here. Below are some examples of the useful lives of various items from the financial year 2014-2015

Carpet: 10 years

Floating timber floors: 15 years

Window blinds (internal): 10 years

Window curtains: 6 years

Cook tops: 12 years

Access Control Systems – swipe card: 3 years

Automatic garage door

– motors: 10 years

– controls: 5 years

Shower curtains: 2 years

A landlord can decide on a shorter or longer useful life, if the item is of lower or higher quality than average. If the landlord shows that they used a different useful life in their tax return, that rate can be used instead. If an item has reached its useful life, you have a good argument not to pay for replacing it (parts or labour). If an item is part-way through its useful life, you have a good argument to only pay a proportion of the replacement cost, according to the proportion of its useful life that it had remaining.

For example, a carpet is expected to last 10 years. If it has to be replaced after 8 years, it only has 2/10ths of its useful life left, so you should only pay 2/10ths of the cost of replacing it. This means that you do not have to return the property in exactly the same condition.

The ACT Tribunal supports NSW Tribunal decisions that carpets are expected to depreciate by 10-20% per year, depending on the quality. Under the tax depreciation scale, carpets have a useful life of 10 years. Even if the carpets are stained and you don’t steam-clean them, if they are over 10 years old, the landlord may not have a claim for compensation. See for example:

Buckland v Goodwin (Tenancy) [2009] NSWCTTT 685 (16 December 2009)

Saad v Jones (Tenancy) [2011] NSWCTTT 32 (18 January 2011)

Elder & Finlay v Kerr (Tenancy) [2009] NSWCTTT 132 (31 March 2009) – in this case the landlord was awarded some compensation as despite the carpets being 10 years old, they were still of some value to the landlord, and accordingly he was awarded 10% of the replacement costs.

Reviewed: 3/12/13

IMPORTANT NOTE:

Tenants’ Union ACT publishes this website as a free service to the public.

This website provides information about the law designed to help users understand their legal rights and obligations. However legal information is not the same as legal advice (the application of law to an individual's specific circumstances). Although we make all efforts to ensure our information is accurate and useful, we recommend you consult the Tenants Advice Service for advice specific to your circumstances. You are also free to consult an independent solicitor for a second opinion.

Please note that this website is NOT intended to be used as a substitute for specific legal advice or opinions and the transmission of this information is NOT intended to create a solicitor-client relationship between the Tenants’ Union ACT and members of the public.

Tenants’ Union ACT makes no representations as to accuracy, completeness, currency, suitability, or validity of any information on this site and will not be liable for any errors, omissions, or losses, injuries, or damages arising from its display or use. Please note that the information on this site is only relevant to renters in the ACT Please also note when the page was last updated, as the law may have changed.