Question from a tenants perspective

[mogar]

My wife and I have been in an agency managed rental in NSW for the past 14 months. Despite multiple written requests we have not yet received an entry condition report from the RE agent.
While we have not damaged the property in any way shape or form would it be possible for the RE to claim that we have caused damage and attempt a claim on our bond when we vacate (not planning to for a while) if they have no co-signed record of the properties condition at the commencement of our tenancy?

 

[wylie]

I would say you have the upper hand here. They have NO record of how the house was when you went in. I know in Qld we must give the tenant the entry condition report within 14(?) days. One it comes back with the tenant's notations, it forms the basis for the state of the house at the start of the lease.

In a recent rental, the tenant (a property manager) never even gave me back the entry condition report with any notations. That means my version is accepted and gave me the upper hand in any dispute when they left.

But you have not even been given an initial report (how slack is that?). I guess the rules may be different in NSW?

The agent who you rented from is negligent, and I cannot see how anybody can argue anything about how you leave the property when the agent has failed in one of the most basic things required of them at time of entry.

 

[Ed Barton]

Make sure you keep records of your correspondence to the property manager.

PMs - What happens when a tenant claims they never received a condition report at the start of the lease?

 

[The Fence]

NSW: The condition report forms part of the agreement.

It needs to be there and signed off on by tenant and landlord/agent.

 

[mogar]

Make sure you keep records of your correspondence to the property manager.

Done - everything is recorded.

NSW: The condition report forms part of the agreement.

It needs to be there and signed off on by tenant and landlord/agent.

So does this make the tenancy agreement invalid?

 

[alplant]

Sounds pretty slack of the agent. Do you have a lease in place?

It wouldn't be an old house by any chance, would it? My son had a similar rental experience, no entry condition report, no inspections. Turned out the owner was planning to demolish the place and build townhouses on the big block of land that the little old post war house was sitting on. So obviously he wasn't all that worried about an entry condition report or an exit one either for that matter.

 

[The Fence]

Here is the info supplied by Dept Fair Trading NSW from being a Landlord point of view.

Make of it what you will, but it does say in there that:

A condition report must be completed whether or not a rental bond is taken.

Basically, it's the landlords responsibility to supply the report to you in 2 copies of which you return one after filling out your bits.

So I assume that if no original report supplied then landlord/agent has no recourse on your for any damages and cannot claim anything from bond without that report backing up any claim.

 

[mattysavager]

Done - everything is recorded.

So does this make the tenancy agreement invalid?

No, your lease is not invalidated.

The only thing that is affected is the agent's ability to claim costs of repairing damage that you may or may not have caused. Beware though, that if you end up at the Tribunal, they will generally consider photo evidence in place of a written report (the agent usually would have photos).

And in response to someone else's question about what a PM does if the tenant claims they didn't receive it: we give it to them when they collect keys and they sign our folder saying that they've collected it on x date and have until x date to return it.

Matt

 

[The Fence]

The only thing that is affected is the agent's ability to claim costs of repairing damage that you may or may not have caused. Beware though, that if you end up at the Tribunal, they will generally consider photo evidence in place of a written report (the agent usually would have photos).

A condition report must be completed whether or not a rental bond is taken.

The word "must" does have some meaning does it not?

Where does it say photos can be used in evidence when a condition report was not supplied to the tenant with the agreement?

And wouldnt it be incumbent on the agent to supply those photos as evidence of condition of property at the start of the lease not part way or end of when a possible dispute may crop up?

 

[mattysavager]

The word "must" does have some meaning does it not?

Where does it say photos can be used in evidence when a condition report was not supplied to the tenant with the agreement?

And wouldnt it be incumbent on the agent to supply those photos as evidence of condition of property at the start of the lease not part way or end of when a possible dispute may crop up?

I did qualify my statement by saying that the tribunal generally considers photographs when it comes to dispute hearings. This is my experience only. The RTA does encourage tenants to take photos for their own records. If they choose not to do so, then that's their problem.

I do not supply photos to the tenant with an entry condition report, but I take photos of every wall, floor, ceiling, inside appliances and the insides of all cupboards etc. This is for future reference in case the condition is disputed.

I have yet to come across a QCAT adjudicator who hasn't taken my photographs as evidence when deciding on a dispute, and I almost never lose.

Matt

 

[fisherman]

Presumably you are happy with the house. There is no sense in buying into problems, that is for the odd angry individual.

I would complete a condition report and send it in, while retaining a copy. That keeps everything up and above board Don't agonise about a nil return from the REA.

 

[The Fence]

matty...we are talking about NSW.

The condition report is a "must do" as it is the only evidence upon which any dispute may be referenced according to the information provided by Dept Fair Trading from the link I provided. (did you read it?)

Your experience in QLD is not relevant in NSW I would think, but I could be wrong..?

However regulation states categorically under:

Schedule 2: Condition report

Important notes about this report
1. It is a requirement that a condition report be completed by the landlord and the tenant (see above). This condition report is an important record of the condition of the residential premises when the tenancy begins and may be used as evidence of the state of repair or general condition of the premises at the commencement of the tenancy. It is important to complete the condition report accurately. It may be vital if there is a dispute, particularly about the return of the rental bond money and any damage to the premises.
2. At the end of the tenancy the premises will be inspected and the condition of the premises at that time will be compared to that stated in the original condition report.

I would have thought that a condition report would be inclusive of any evidence collected by the landlord/agent, not just some or in the case of the OP, none.

 

[mattysavager]

It's a 'must do' in QLD also. There is nothing that I recall in the QLD legislation that stipulates penalty units for not completing the inspection report (happy to be proven wrong).

It's one of those situations where the regulation protects the owner, so by the agent not doing it, they're really only disadvantaging themselves. If anyone is going to change the condition of the property, it will be the tenants, and almost always for the worse.

I don't know if there's any recourse that the tenant has against the agent. Why would there be? The tenant is not disadvantaged in any way by the agent not protecting their client by means of an entry condition report.

In QLD, it's a 7 page checklist. The photos that I take are extra protection for my clients in the case of a dispute. If the tenants take pictures, I don't care to see them. I know what the property looks like.

My experience with the tribunal would be relevant to NSW mostly. In QLD, the tribunal will often place aside legislation and instead resolve the issue to a state of 'compromise' given the current situation. Their idea of 'fair' often aligns with the tenant in my opinion.

I would not believe that any tribunal adjudicator would refuse to see photos in place of an entry report. They might verbally slap the agent on the wrists for not providing one, but ultimately if the tenant has done the wrong thing and the agent can prove it by other means, then I would think they'd sort it out on the evidence presented.

 

[mogar]

I have photographs of every section of the property prior to us placing furniture and wrote up a condition report signed by the neighbour as a witness. The property is probably about 20yrs old and in good condition so I can see no reason for it to be knocked down.
My opinion was that a lack of report would be more in our favour than the RE's and that seems to be confirmed.

 

[The Fence]

I

I would not believe that any tribunal adjudicator would refuse to see photos in place of an entry report. They might verbally slap the agent on the wrists for not providing one, but ultimately if the tenant has done the wrong thing and the agent can prove it by other means, then I would think they'd sort it out on the evidence presented.

Matty I beg to differ.
Once again you are in QLD, this is NSW.

Here is just one example of what a NSW tribunal will rule on. In this case the outgoing report. Ingoing, outgoing, whatever the case, it is imperative that a report is made to provide objective evidence and that the tenant has an absolute right to have access to that report, be it photos or written. You simply cannot be rewarded for breaching the regulations by withholding any evidence in relation to the condition of the property from the tenant and affording said tenant the opportunity to view and objectively assess it.

Please read the link and dont keep quoting from QLD viewpoint.

 

[alplant]

My opinion was that a lack of report would be more in our favour than the RE's and that seems to be confirmed.

That was certainly the case for my son. When his lease was not renewed the RE sent him the usual list of things he had to do, carpet cleaning etc. and when he mentioned there was no entry condition report they immediately backed down. Of course the landlord wasn't inclined to push the matter either for obvious reasons, bit of a waste cleaning carpets for the demolishers.

Sounds like you have it all under control anyway, good idea to have your own photos.

 

[esh]

when signed the agreement they should have given two copies to you. One for the agency if you have any changes you want to make etc , the other one to keep for your records

 

[mogar]

when signed the agreement they should have given two copies to you. One for the agency if you have any changes you want to make etc , the other one to keep for your records

I am aware of that, and no copies were provided which is the issue being discussed

 

[fisherman]

I have photographs of every section of the property prior to us placing furniture and wrote up a condition report signed by the neighbour as a witness. The property is probably about 20yrs old and in good condition so I can see no reason for it to be knocked down.
My opinion was that a lack of report would be more in our favour than the RE's and that seems to be confirmed.

Likely and more likely if you send your completed form to the PM. Retain a copy. Nothing to be gained from holding it back.

 

[mattysavager]

Please read the link and dont keep quoting from QLD viewpoint.

The link is very interesting. I would be interested also to read any links you have that relate to an ingoing condition report not completed (as was the case for the OP).

The link you posted was in relation to the exit condition report, and the tenant not having the opportunity to inspect the disputed items with the agent.

Assuming that in the OPs case, the agent follows the legislation at the end of the tenancy, and the tenant is allowed to participate in the inspection, and the issue arises that there is no entry condition report to compare to, then I maintain my position that CCCT would take the entry photos into consideration.

If the CCCT observes that the tenant has damaged the property, then I would expect that the tenant would be held responsible for the cost of repairs. I strongly doubt that the tribunal would allow the tenant to walk away due to an administrative/paperwork/technical error on the part of the agent. Again, happy to be proven wrong with relevant cases.

I have personally experienced this situation many times, and I know that the QLD laws are very similar to the NSW laws in this regard.

Also interested to find if there is any set penalty or consequence of the agent not doing what they 'must' under the NSW act? In my experience the tribunal decides these matters on a case by case basis

The tribunal systems in NSW and QLD are functionally very similar, and I will continue to offer my opinion.

Matt