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Tenant Repair Costs Policy
Policy Last Amended: 23 May 2016
This policy is concerned with damage to premises for which the tenant is responsible and the cost of repairing that damage, that is Tenant Repair Costs.
The intent of the policy is to identify liability for the damage in a way that is procedurally fair for the tenant and Land and Housing Corporation (LAHC).
Tenants can expect LAHC to provide them with premises that are in good condition and to maintain that condition through the life of the tenancy. Tenants are expected to take good care of their premises and to take responsibility for property damage other than that caused by fair wear and tear or the criminal activity of a third party.
Under the Residential Tenancies Act 2010:
- LAHC is responsible for maintaining the tenant's premises to a reasonable standard; and
- the tenant is responsible for the cost of repairs due to intentional damage or neglect that is caused by the tenant or a member of the tenant's household or a visitor who enters the tenant's premises with the tenant's permission.
The tenant is responsible for damage to the premises and LAHC repairs the damage, LAHC will recover from the tenant the cost of the repairs. These are Tenant Repair Costs.
LAHC will charge the tenant Tenant Repair Costs only if the tenant has accepted liability or LAHC has sufficient evidence of the tenant's responsibility for the damage.
The tenant has the right to accept or dispute liability for Tenant Repair Costs. If the tenant disputes liability LAHC will suspend the cost recovery process and review the decision to charge the tenant.
The tenant can expect LAHC together with the Department of Family and Community Services (FACS):
- To abide by the terms and conditions of the Residential Tenancy Agreement that relate to the landlord's responsibilities.
- To collect and record information about the type and extent of damage to premises and the circumstances under which the damage may have occurred.
- To provide the tenant with written notice when FACS considers the tenant is responsible for Tenant Repair Costs.
- To provide the tenant with written notice when FACS claims repayment for Tenant Repair Costs.
- If the tenant disputes liability, to review FACS decision to charge Tenant Repair Costs. FACS will then either:
- cancel or amend the Tenant Repair Costs and advise the tenant in writing; or
- take cost recovery action before the NSW Civil and Administrative Tribunal (NCAT) or the local court.
- Before the tenant vacates the premises, FACS will carry out a final inspection in the tenants presence and complete the Property Condition Report.
- Not to charge Tenant Repair Costs caused by damage that occurs after the tenant provides vacant possession of the premises to FACS.
LAHC and FACS expect the tenant:
- To abide by the terms and conditions of the Residential Tenancy Agreement.
- To take good care of the premises and keep them reasonably clean.
- To tell us as soon as possible if the premises have been damaged.
- To pay for Tenant Repair Costs.
- To comply with NCAT or local court orders to pay the cost of repairs or cleaning.
- To report to the NSW Police any damage that is suspected to have resulted from criminal activity, such as break and enter, vandalism or domestic violence.
- When the tenant vacates the premises, to:
- give FACS 21 days written notice before vacating the premises if the tenant has a continuous tenancy or to give FACS 14 days written notice before vacating the premises if they have a fixed term tenancy;
- restore the premises to the condition it was in at the start of the tenancy, allowing for fair wear and tear; and
- return the keys to FACS. Relying on a neighbour or third party is not an excuse for keys not being returned.
Damage to the premises that is the tenant's responsibility includes:
- damage that is intentional;
- failure to take care to prevent damage (neglect);
- failure to keep the premises in a reasonably clean condition;
- failure to restore the premises to their condition at the start of the tenancy, after allowing for fair wear and tear;
- intentional damage, or neglect leading to damage, that is caused by any member of the household, pets or any visitor who enters the premises with the tenant's permission.
To determine who is responsible for the cost of repairing damage to the property FACS will:
- Take into account the type of damage and any information concerning liability the tenant gave FACS when reporting the damage.
- Inspect the premises and document the damage where appropriate.
- Discuss the items of damage with the tenant and record information the tenant or a third party gives FACS or LAHC about the possible cause of the damage.
- Take into account the condition of the premises at the beginning of the tenancy, as stated in the Property Condition Report and any evidence of work undertaken on the property at the start or during the tenancy.
- Take into account damage due to fair wear and tear, which LAHC is responsible to repair.
- Take into account damage due to an emergency situation where there was good cause to believe that the tenant's health and well being was at risk.
- Consider whether ill health or inability to maintain the premises has contributed to the damage. For example, if the damage has been caused by children or adults with challenging behaviours, mental illness or disability which could not be reasonably prevented.
- In these circumstances the tenant is required to provide evidence. For more information see item 16 on the Evidence Requirements Information Sheet.
- Consider whether the damage is a result of criminal activity such as:
- Domestic violence. If the damage is the result of domestic violence inflicted on the household (except where the tenant is the perpetrator), they should provide evidence of this so that it can be taken into consideration when determining liability. For more information see item 15 on the Evidence Requirements Information Sheet. FACS is committed to reducing the incidence and effects of domestic violence and encourages people subjected to domestic violence to speak with a client service officer or domestic violence support workers in the area.
- Other criminal activity such as break and enter or vandalism. The tenant is requested to provide evidence that they have reported the matter to the NSW Police, such as a Police statement or Police Event Number.
In circumstances of criminal activity the tenant is requested to provide evidence that they have reported the matter to the NSW Police, such as a Police statement or Police Event Number.
If LAHC or FACS considers the tenant responsible for Tenant Repair Costs, a letter will be send to the tenant stating:
- the nature of the repairs.
- that FACS requires the tenant to pay for the repair costs in accordance with responsibility under Section 51 of the Residential Tenancies Act 2010.
- That the tenant can accept liability by signing and returning the Notice of Liability within 14 days of receipt (included with letter).
- That the tenant can dispute liability by telling FACS immediately and providing written reasons.
- That if the tenant disputes liability FACS will stop sending letters requesting payment and review the decision that the tenant is responsible for the damage. In some circumstances the tenant can choose to have the decision reviewed externally (see Appeals and Reviewing Decisions). Pending review, FACS will then either cancel the claim and advise the tenant in writing, or take action before the NCAT or a local court to recover the costs from the tenant. At the NCAT or local court the tenant will have an opportunity to tell why the tenant disputes liability and the NCAT or local court will determine if the tenant is liable and if so how much the tenant will have to pay.
Repeat or serious incidents of Tenant Repair Costs
Where FACS has sufficient evidence of repeat or serious incidents of tenant-responsible damage, FACS will immediately take action before the NCAT to obtain a specific performance order. In certain circumstances, FACS will take action to end the tenancy.
Valuation of Tenant Damage
LAHC staff should use the Valuation of Tenant Damage Allowing for Depreciation which provides all the necessary background information on how to manually calculate the current value and cost of repairing/replacing items damaged by the tenant. In other words, the amount FACS will pursue from the tenant.
Staff will also find the Tenant Damage Depreciation Calculator useful for any damaged items that have to be depreciated to today’s value. This automatically works out the amount LAHC may pursue from the tenant once a number of fields are filled in.
Tenant Damage Charges where Asbestos is Present
Asbestos-cement can be a health risk if asbestos fibres become airborne and are inhaled. This can happen when asbestos-cement building products are broken, sanded, drilled or disturbed in any way that results in airborne asbestos fibres.
Expert advice received from WorkCover NSW and NSW Health tells us that living in a home built with asbestos-cement building products is not considered a health risk.
When a tenant damages their property that has material containing asbestos, they could potentially disturb the asbestos (e.g. a tenant damages a wall that has asbestos material in it).
Where there is evidence that a tenant has damaged their property, LAHC should always pursue Tenant Damage Charges. In a previous case, the NCAT has ruled that the tenant is only responsible for the costs involved in replacing the structure that had asbestos in it and not the costs associated with safely removing the asbestos. FACS Legal Services' opinion is that the NCAT's decision would survive any challenge. Therefore, LAHC should not seek Tenant Damage Charges for the removal of the asbestos and follow the asbestos policy and procedure.
Before vacating, the tenant must restore the premises to the condition it was in at the start of the tenancy, allowing for fair wear and tear. This includes cleaning, rubbish removal and the non-abandonment of goods, including furniture and vehicles. Before vacating, FACS must carry out a final inspection in the presence of the tenant and complete a final Property Condition Report. Once the tenant has returned the keys to Housing NSW and provided vacant possession, the tenant is no longer responsible for damage that occurs after that. It is the tenant who is responsible for returning the keys to FACS, not the neighbours or another third party.
The tenant must give FACS 21 days written notice before vacating if the tenant has a continuous tenancy, or the tenant must give FACS 14 days notice before vacating if the tenant has a fixed term tenancy. This allows FACS time to complete the Property Condition Report. This will establish whether there is any unrepaired damage and will enable the tenant and FACS to agree on who is responsible for the damage.
If the tenant abandons the premises or fails to return the keys, FACS will obtain possession of the premises and assess its condition. If FACS obtains sufficient evidence that the tenant is responsible for damage that goes beyond fair wear and tear, FACS will take action as appropriate before the NCAT or the local court to recover from the tenant the cost of repairing the damage.
Previous tenants with outstanding Tenant Repair Costs who reapply for housing
If a former tenant reapplying for housing assistance has an outstanding tenant repair debt, FACS will take this into account when assessing eligibility for further assistance. For more information, go to the Eligibility for Social Housing Policy.
The tenant may request a review of a LAHC decision:
- to charge Tenant Repair Costs;
- not to waive Tenant Repair Costs on the grounds of ill health, domestic violence or the criminal activity of a third party; or
- that a person is ineligible for further housing assistance due to an outstanding tenant repair debt from a former tenancy.
LAHC will advise the tenant in writing of the review decision.
If a person disputes the review decision, they may appeal to the Housing Appeals Committee. For more information, go to the Client Service Delivery and Appeals.
If a person disputes the first level appeal outcome they can appeal to the independent Housing Appeals Committee (HAC) on the following:
- Vacated property repair charges if these were not subject to a NCAT order;
- Not to waive Tenant Repair Costs on the grounds of ill health, domestic violence or the criminal activity of a third party; or
- That a person is ineligible for further housing assistance due to an outstanding tenant repair debt from a former tenancy.
For information see the Housing Appeals Committee website on www.hac.nsw.gov.au or telephone 02 9715 7955 or freecall 1800 629 794.
Other disputes about Tenant Repair Costs may be heard by the NCAT or a local court.
For more information about the NSW Civil and Administrative Tribunal (NCAT) see the process Going to the NSW Civil and Administrative Tribunal.