May 8, 2013

Wear and Tear of tenancy Vs Tenant damage from a Tribunal perspective

The following is an extract from QCAT decision

Jong v Beevers Real Estate [2013] QCAT 90

The decision provides the real estate industry and landlords with some guidance as to wear and tear and tenant damage. Wear and tear has long been a debated issue; wear and tear generally means events that occur from 'normal usage' of the premises. The following extracts provide some guidance as to what Tribunal takes in to consideration as far as tenant damage and wear and tear.

6] There is a general statutory requirement pursuant to s 188 of the Residential Tenancies and Rooming Accommodation Act 2008 for tenants to leave the premises, as far as possible, in the same condition at the start of the tenancy fair wear and tear expected.

[7] However, the wording of both sub-ss (2)-(3) limits the liability of a tenant, in so far as:

 Section 188(2) requires the premises and inclusions to be clean, by having regard to its condition at the start of the tenancy [emphasis added]; and

 Section 188(4) requires the tenant at the end of the tenancy, to leave the premises and inclusions, as far as possible, in the same condition they were at the start of the tenancy, fair wear and tear excepted [emphasis added].

[8] Thus for a lessor to successfully establish the liability of a tenant pursuant to ss 188(2)-(3), the weight of evidence must satisfy a Tribunal in finding that there was a change or difference in the property‟ condition (outside of what would be regarded as fair wear and tear) – from the commencement of the lease compared to when the tenant vacated.

[9] This ultimately involves an examination of the evidence - such as entry condition reports, photographs and witness statements - to determine the actual condition of the property and inclusions that are the subject of the claim, at the start of the tenancy.

[10] Once this baseline standard or condition of the property and inclusion is established, a determination can be made by the Tribunal as to whether there has been a subsequent change in the standard by examining evidence (such as exit condition reports, additional photographs and witness statements) gathered after receiving vacant possession and comparing it to the earlier evidence.

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