Advice regarding "fair wear and tear"

[sydney_kings]

Hi,

I own and manage the property myself.

I have an issue with a tenant. There are stains on the carpet that the tenant considers to be fair wear and tear. I disagree with this. Am I able to get a third party to assess and advise if the carpet stains are fair wear and tear?

The property is located in the South Coogee area NSW.

Thanks!

 

[Propertunity]

Fair wear & tear will go to:
1. How long has the tenant been there (you could expect some stains over a period of years)
2. How much of the carpet do they affect?
3. How old was the carpet already when this tenancy started?
4. Will the stains come out if professionally cleaned?

 

[Goofy]

yep, the third party will be the tribunal in your state. You will need to have before and after photos of the carpet.

however if the carpet is over 5 years old you can forget about the tribunal awarding you anything, they believe carpets should be replaced every 5 years (ridiculous i know)

 

[kathryn d]

Fair wear & tear will go to:
1. How long has the tenant been there (you could expect some stains over a period of years)
2. How much of the carpet do they affect?
3. How old was the carpet already when this tenancy started?
4. Will the stains come out if professionally cleaned?

Also what type of stains.
Oil from taking motorcycles apart..I wouldn't consider fair wear and tear
Spilling hair dye or a bottle of bleach on the carpet..I wouldn't consider fair wear and tear.

 

[neK]

This is why I prefer to rip out carpets and polish the floorboards instead.

 

[Etaylor]

Hi Sydney Kings,

Carpet stains are always a tough one. If you can't come to an agreement you will need to take the matter to tribunal (CTTT) to have the matter heard. If so you will need a written quote of the cost to replace the carpets that have been damaged. They will take into account the depreciable cost of the carpets over 7 to 10 years and the condition of the carpets at the beginning of the tenancy.

I generally will try to agree on a fixed cost with the outgoing tenant and just keep the money aside for when you need to replace the carpet. Much better than going to tribunal. Sometimes if the stain is not to large you can cut a section out of the wardrobe carpet and replace it with the stained section. On some carpets you can hardly see the joins.

 

[sydney_kings]

1. The tenant was living there for 2 years

2. The stains are scattered around the hallway, lounge and two bedrooms, there's about 80 stains. The stains look like texta markers (coloured red, purple, blue). The stairs and two bedrooms are relatively unmarked.

3. Carpet was 2 years old when the tenancy started. It's now 4 years old.

4. Professional cleaners and stain removers have been through the property and stains cannot be removed. The stains can be "lightened" but not removed without damaging the carpet.

I was wondering if I could call in an "adjudicator" who can rule if the stains and remnants of the stains are considered "wear and tear" vs damage which then can be tendered to the tribunal?

 

[Propertunity]

I was wondering if I could call in an "adjudicator" who can rule if the stains and remnants of the stains are considered "wear and tear" vs damage which then can be tendered to the tribunal?

No. As has been stated already, the Tribunal is the adjudicator.

Have an unhappy read of this thread: http://www.somersoft.com/forums/showthread.php?t=37577

 

[sydney_kings]

Thanks for the link, very interesting read and it's unfortunate that the Tribunal may tend to favour the tenant. I appreciate the comments above, now I'm going to pack all the evidence into a pack to send to the Tribunal - with the hope that the hearing will be fair and just.

 

[sydney_kings]

I had my tribunal session, the judge dismissed this case on the grounds of Section 16.1:

16 Applications relating to a breach of residential tenancy agreement

(1) If a landlord or a tenant under a residential tenancy agreement claims that a breach of a term of the agreement has occurred, the landlord or the tenant may, not later than 30 days after becoming aware of the breach, apply to the Tribunal for an order in respect of the breach.

As I gave the tenant time to rectify this issue, the lodgment came after 30 days, approximately 55 days if I recall. Is there any additional consideration that can be made from here? Any ideas will be appreciated.

 

[kathryn d]

Sydney_kings,
If you find that there is nothing you can do from this tenancy...you must take it as a lesson and learn from it.
Figure out what you did wrong, and don't do it again.

We all make mistakes.
Rulings are frequently unfair.
You just need to learn the game better.
If you are ruled against incorrectly..appeal.

 

[sydney_kings]

Thanks Kathryn, I'll go through the appeals process - however, I'm not expecting too much. It's been a worthwhile exercise to go through this once, not a fun exercise, but it does open my eyes to the operations of the CTTT.

 

[kathryn d]

Thanks Kathryn, I'll go through the appeals process - however, I'm not expecting too much. It's been a worthwhile exercise to go through this once, not a fun exercise, but it does open my eyes to the operations of the CTTT.

I am unfamiliar with Australia rules, but if they are anything like Canada, you have only a small window of time in which to appeal.
Just remember, do not expect the adjudicator to know anything. If you want to to put something into evidence, such as a stain that cannot be removed, you may want to bring in a carpet cleaning specialist to give expert testimony. If there is something you are being ruled against such as a breach "16.1"....show where that does not apply.

This may cost you more than you collect from the tenant.
Consider it as gaining experience, and use it for the next feral tenant.
There will always be another.

Too many people here will tell you not to bother. That is fine, once in awhile.To take this as an ongoing stance, is silly.

Our first case in court starts 3 days after we return to canada next month, and another one the following week.
Then it will be tracking down our other feral tenants to serve them for court.
All up, we are trying to get compensated for 24k in loss rent and damages.
One case has been going on since Nov 2009

Good luck

 

[Goofy]

Thanks Kathryn, I'll go through the appeals process - however, I'm not expecting too much. It's been a worthwhile exercise to go through this once, not a fun exercise, but it does open my eyes to the operations of the CTTT.

Unfortunately you wont get anywhere with the appeals process... you have missed a time deadline, there is no appeal against that.