The Law Handbook 2024

520 Section 6: Houses, communities and the road VCAT’s permission (s 126 VCAT Act). There is no time limit on when a renter can apply to the RTBA. It is free to submit a bond application to VCAT. Rental provider’s application to VCAT If a rental provider wants to retain some or all of the bond, and the renter disputes the rental provider’s entitlement to do so, the rental provider must make a claim to VCAT against the bond (s 419A RT Act). A rental provider cannot make a claim directly to the RTBA if they want any of the renter’s bond (s 411(1) (b)). A claim to VCAT must be made within 14 days of the renter vacating the rental premises (s 419A(2)). If 14 days have passed, the rental provider may still make a general compensation claim against the renter; however, they cannot rely on the security of the bond to ensure payment of any claim. If a rental provider makes an application against the bond out of time, the renter should point this out to VCAT. However, the renter should be prepared for the possibility that VCAT may grant the rental provider an extension of time (under section 126 of the VCAT Act) and allow the rental provider to argue their case. It is currently unclear if VCAT will reject applications by rental providers that are made 14 days after the rental agreement ends, as intended by the law. Notably, it is a requirement that rental providers indicate the date that the rental agreement ended on their bond application (r 8.08(8) VCAT Rules). This means that VCAT should be able to determine the validity of an application where no extension of time has been sought. If the VCAT application is rejected, the RTBA should refund the renter’s bond money as requested; the rental provider will need to make a compensation claim against the renter instead. Whether this operates as intended is yet to be observed. The things a rental provider may claim against a bond are: • the reasonable cost of cleaning, if the renter has not left the property reasonably clean; however, a rental provider cannot require a renter to leave the property cleaner than when it was when the renter moved in; • the reasonable cost of repairs, if the renter, or their visitor, has caused damage; this does not include the usual wear and tear from living in the property; • rent, or other charges that are the renter’s responsibility, that they owe; and • replacing locks if the renter has altered, removed or installed locks any without consent (s 411AB RT Act). It is important that renters realise that the bond is their money. For a rental provider to be entitled to any bond money, they must prove on the balance of probabilities that: • the renter has caused loss or damage in breach of the RT Act or the valid terms of the rental agreement; and • the amount claimed is reasonable. A renter is not liable for damage that was pre-existing, or that was caused by a third party (not a visitor) (e.g. a break-in or flooding in a neighbouring apartment), provided these were reported in writing, as soon as practicable, at the time (ss 62, 72AA RT Act). A renter is not liable for any damage that is fair wear and tear (e.g. worn carpet) or other damage caused by the ordinary use of the premises. If a renter is liable for any item, it should be appropriately depreciated according to the age of the item (see s 211A(2), reg 90 and Director’s Guideline 2 (Cleanliness), and Guideline 3 (Damage and fair wear and tear)). Rental providers or agents are expected to provide a complete and evidenced application to enable the renter to respond appropriately. The new summary of proofs for bond and compensation form (available from the VCAT website) is also beneficial to renters because it highlights the requirement of the rental provider to disclose the age and condition of each item alleged to have been damaged, and how the renter is at fault for each item. Requesting the rental provider to complete this form may assist in the early resolutions of bond disputes. A rental provider has a duty to mitigate loss or damage. A rental provider may apply for compensation that is more than the amount of the bond. VCAT may also give consideration to a range of other factors set out in the RT Act (s 211– 211A). VCAT may hear applications for bond and compensation at the same time. Renters may also wish to lodge their own compensation claim (ss 210, 452 RT Act) to offset any potential liability, or for the purposes of reaching a mutual agreement.