Agent Withhold Overpaid Rent, Inconsistent Condition Report - SOLVED!!

Lmochidonut on 08/02/2021 - 11:24
Last edited 08/02/2021 - 22:33

Hello everyone,

My partner and I lived in a rental apartment in NSW, we terminated our stay early due to relocation while still having some rent in credit. Agent asked us to pay the break fee in full and said they will refund the overpaid rent back once we move out. That's what we did.

One week after moving out, we received an email saying that we need to compensate for some dark spots on the carpet which we have no memory of causing. The carpet condition was already not perfect before us, there were many dark spots showing in the previous condition report that the agent chose to ignore and described the carpet as "no visible marks". That's why we didn't take photo of every single mark on the carpet that was not captured in the conditional report. And we certainly disagreed with the compensation that was demanded.

Later on, we received the bond in full. However, the agent refuses to return the overpaid rent in full. If anyone has some idea with regards to a course of action, it would be much appreciated!

Cheers!

UPDATE:
Thanks everyone! I've got the rent back! =))

Fair Trading NSW advised me to write them an email citing the Residential Tenancies Act section 47.3 which says that agent needs to refund all excess bond within 14 days of a written request. If the agent has any issue, they will need to bring it to the Tribunal themselves.

The agent returned all excess rent immediately.

Lesson learnt:
- It's a good idea to call your local Fair Trading if there is any rental dispute.
- Take A LOT OF PHOTOS when going into a tenancy even when the conditional report seems to be comprehensive.
- JR Landing is a doggy REA with no professional ethics.

Home & Garden

Comments

  • lunchbox99 on 08/02/2021 - 11:27
    +8

    Take them to Civil & Administrative Tribunal in your state - NCAT, QCAT, VCAT etc

    If the carpet was not pristine when you moved in it will be very difficult for the agent to prove exact spots. Furthermore, carpets are not meant to look new after a tenancy - normal wear and tear is allowed.

    • mochidonut on 08/02/2021 - 15:57
      +1

      Thanks for the advice!

      Tenants Union's website says that application for a Tribunal cost $51 to start with. So I called Fair trading. Apparently, the agent has no right to withhold rent (they need to seek any compensation through the bond).

  • ThithLord on 08/02/2021 - 11:30
    +5

    That's why we didn't take photo of every single mark on the carpet that was not captured in the conditional report. And we certainly disagreed with the compensation that was demanded.

    Bummer that you didn't take photos, but seeing as bond has been paid back in full you definitely need to take them to tribunal. How old is the carpet? They will often pull a sneaky on ya regarding the aged carpet.

    • mochidonut on 08/02/2021 - 16:07
      +2

      Yeah, I feel like that's what they did!

      The carpet is fairly old, with some fraying edges and a huge stain on the hallway(about 50cm*50cm) next to the bathroom might be caused by humidity overtime. These were all noted in the previous report because they were too hard to ignore, and it seems like the agent/landlord have no intention to fix.

      I called Fairtrading first, they advised that the agent must return the excess rent under the residential tenancy act. If they need compensation, they are the one who needs to take it to the tribunal.

      • ThithLord on 08/02/2021 - 16:24

        Spot on - get at 'em, mate. The LL is probably mad as hell the REA didn't take the original tenants to task for the buggered carpet - so you're copping the brunt of it!

        • mochidonut on 08/02/2021 - 16:34
          +2

          OMG They refunded us 100% within 40 mins of the email !!

  • M8y on 08/02/2021 - 11:43
    +2

    If the most recent inspection/condition report documents "no visible marks", and you didn't contest it at that stage or soon after, I think you're going to have a battle on your hands with the tribunal.

    How much overpaid rent are we talking here? Given the time and effort you and/or your partner will need to take off work for the tribunal, etc. is it worth the fight?

    Probably need to weigh up how much cash is at stake here - if it's $1K or so, then yeah, contest it. If it's just a few hundred, it might end up costing you more in time and effort if you likely receive a nil outcome from the tribunal.

    • lunchbox99 on 08/02/2021 - 11:46
      +2

      Even if the marks were not there before, you are not obligated to return the property with no visible marks. The accumulation of marks during its lifetime can be considered normal wear and tear.

      It really comes down to what is reasonable. A 2m wide curry stain is probably not reasonable, small marks here and there might be reasonable.

      • M8y on 08/02/2021 - 12:18
        +1

        I don't argue that at all. As I said, I believe it comes down to weighing up how much cash is at stake here vs. the time off work, etc. for the tribunal hearing, etc.

    • [Deactivated] on 08/02/2021 - 13:38
      +3

      They returned the bond in full.

      If they had issues with the condition of the property they should have used the bond for that and not an overpayment of rent.

      Highlighting that to the agent and a gentle threat of a tribunal might be enough for them to do the right thing.

      • lunchbox99 on 08/02/2021 - 13:43
        +3

        Even better, most tenants pay rent into an agency trust account. Withdrawing money from the trust improperly can be a serious offence under the trusts act (once when I rented years ago my lawyer friend who is now a QC said exactly this to my agent when they did similar to OPs case. They shit themselves and refunded in cash on the spot).

        Keep in mind IANAL.

  • trustnoone on 08/02/2021 - 12:08
    +1

    Later on, we received the bond in full. However, the agent refuses to return the overpaid rent in full.

    Not a lawyer but noooooooooo I really don't think they can do that, thats like theft? The bond can be kept or not kept but is overseen by a body of some sort I think and has rules around it for both sides. Being overpaid money and refusing to give it back is like theft?

    Its also similar as to why a rental place can't use your bond in lieu of rent either usually.

    I think you need to talk to Fair trading, legal aid or lawyer, even if the agent wants to come after you for visible marks, they need to follow it properly and go after your bond properly or legally for damages not hold onto overpaid funds.

    • mochidonut on 08/02/2021 - 15:46
      +1

      The agent is being really doggy!

      Just talked to Fair trading. Apparently, the agent needs to return all overpaid rent within 14 days of a written request under the Residential Tenancies Act section 47.3.

      I just wrote a formal request to the agent, hope it'll resolve the issue!

  • Summoner on 08/02/2021 - 12:41
    +3

    I don't think they can take your credit without your agreement. If they truly believe that the carpet was damaged by you, they should have deducted from your bond, so you can challenge it if you disagree. It seems they are taking the quick and dirty option and hoping you to drop the case. Try speaking with tenancy authority in your state for further steps.

    And always take a lot of photos when signing for a rental property. And mention every little marks on the entry condition report so you don't have this kind of dispute.

    • Krankite on 08/02/2021 - 13:13
      +1

      Agree the fact they refunded the bond in full makes me suspect they are trying to pressure you into dropping it. If they had a legitimate case they would have pursued the bond.

  • Meho2026 on 08/02/2021 - 13:23
    +2

    Rent and bond are two separate issues. If you received the bond back in full then that issue is done.
    You'll have to apply to take them to the tribunal to get the overpaid rent back. Its unlikely they will want to attend the tribunal if they know you have proof of giving notice to end the tenancy and paid the break lease fee (you said you terminated your stay early) and evidence of overpaid rent.

  • starspawn on 08/02/2021 - 14:00
    +1

    Straight to NCAT

  • brendanm on 08/02/2021 - 14:27
    +2

    Call the agent and tell them you will be taking them to the tribunal. They will then return your money. Scumbag property managers.

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