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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Condition reports
        -  Outgoing
            >  Failure of landlord to complete report in tenant's presence
            >  Where two outgoing condition reports prepared at different times

Failure of landlord to complete report in tenant's presence 

Landlords and agents should be familiar with the regulations outlining the procedure for completing incoming/outgoing inspection reports. A landlord must afford a tenant a reasonable opportunity to attend the final inspection and complete the outgoing report in the tenant’s presence. An outgoing inspection report will be of limited value in CTTT proceedings if it has not been properly prepared.

The landlord applied to the CTTT to retain an amount from the rental bond to cover part of the cost of re-painting the walls of the rented premises. The landlord claimed that the walls could not be cleaned after the tenant vacated because they were too soiled.

The tenant denied that the walls were dirty, and produced an email message from her cleaners confirming that they had undertaken a general clean of the walls after the premises were vacated.

The tenant claimed that she was not informed that the landlord was concerned with the condition of the walls until after the re-painting.The email correspondence between the landlord/agent and the tenant referred to additional cleaning of the carpet and curtains; however, there was no mention of the landlord’s concern over the cleanliness of the walls.

The landlord produced the incoming and outgoing inspection reports as evidence of the condition of the walls. The landlord admitted that she had not completed the report in the tenant’s presence, nor had she given the tenant an opportunity to make herself available for the inspection. This was in breach of the regulations. The landlord did not provide the tenant with a copy of the inspection report until she filed proceedings in the CTTT.

The CTTT held that the landlord had not proved that the walls were so dirty that they could not be cleaned. The CTTT gave little weight to the outgoing inspection report, in part due to the circumstances under which it was completed. It was also contradicted by the evidence of the tenant and the cleaners. The landlord was unable to show that she had raised any issue about the state of the walls with the tenant until after the re-painting had been completed. The CTTT ordered that the bond be refunded to the tenant with interest.

Hall Industries Pty Limited v Kelly NSWCTTT 163

Where two outgoing condition reports prepared at different times 

A landlord sought compensation from the tenant for damages to the rented premises. In support of his claim, the landlord relied on two outgoing inspection reports. The first report had been completed with the tenant, who was only present for some of the inspection. The second report was completed, without the tenant, one week later. The second report contained more details of damage than the first report.

The Tribunal accepted the first outgoing inspection report. The Tribunal did not accept the second report; firstly, because there was no legal basis for such a report, and, secondly, because the time delay meant that it was possible that other persons had entered the property and caused the damage noted in it. Where an item of damage was only set out in the second report, it was not allowed by the Tribunal.

The Tribunal noted that Clause 8 of the Residential Tenancy Regulation 2006 provided the mechanism for conducting an outgoing inspection report – the tenant was able to attend in order that the inspection was completed in the presence of each of the parties to the lease. There was no provision for any second or subsequent outgoing inspection report.

Vecchio v Manning [2009] NSWCTTT 653