1. Background
The intent of this policy is to identify liability for damage to a property in which the Homes NSW, as the landlord’s managing agent, determines the tenant is responsible for the damage and the associated cost of repairs. This is done in a way that is procedurally fair for the tenant and the landlord, Homes NSW.
2. Scope
This policy applies to all tenancies managed by Homes NSW, including Aboriginal Housing Office tenancies.
3. Policy statement
Under the Residential Tenancies Act 2010:
- Homes NSW is responsible for maintaining the tenant's premises to a reasonable standard; and
- The tenant is responsible for the cost of repairs due to intentional damage or neglect that is caused by the tenant, a member of the tenant's household, a pet or a visitor who enters the tenant's premises with the tenant's permission.
- Tenants who are not the perpetrator of a domestic and family violence offence are not responsible for the cost of repairs where damage was caused during the domestic and family violence offence.
Tenants can expect Homes NSW to provide them with premises that are in good condition and to maintain that condition through the life of the tenancy. Tenants are expected to take good care of their premises and to take responsibility for property damage other than that caused by fair wear and tear and criminal activity or damage caused by a third party or as a result of a domestic and family violence offence. A third party is someone that is not living in or invited into the property.
The tenant is responsible for damage to the premises. Homes NSW will recover the cost of the repairs from the tenant in the situations where a Homes NSW maintenance contractor repairs the damage. These are tenant repair costs.
Homes NSW will charge the tenant repair costs if the tenant has accepted liability, or where there has been a ruling in the NSW Civil and Administrative Tribunal (NCAT) that the tenant is responsible or where the tenant vacated the property leaving it damaged and did not respond to Homes NSW. The tenant is then responsible for paying these charges.
The tenant has the right to accept or dispute liability for repair costs. If the tenant disputes liability Homes NSW will suspend the cost recovery process and review the decision to charge the tenant.
Responsibilities
The tenant can expect Homes NSW to:
- abide by the terms and conditions of the Residential Tenancy Agreement that relate to the landlord's responsibilities
- collect and record information about the type and extent of damage to premises and the circumstances under which the damage may have occurred
- provide the tenant with written notice when Homes NSW considers the tenant is responsible for tenant repair costs
- provide the tenant with written notice when Homes NSW claims repayment for tenant repair costs
- review the Homes NSW decision to charge tenant repair costs if the tenant disputes liability. Homes NSW will then either:
- waive or reduce the tenant repair costs and advise the tenant in writing; or
- take cost recovery action before the NSW Civil and Administrative Tribunal (NCAT) or the local court.
- carry out a final inspection of the property in the tenant’s presence and complete the Property Condition Report before the tenant vacates the premises (where the tenant has provided notice of their intention to vacate)
- not charge tenant repair costs caused by damage that occurs after the tenant provides vacant possession of the premises to Homes NSW, where the keys were returned to a Homes NSW office.
Homes NSW expects the tenant:
- abide by the terms and conditions of the Residential Tenancy Agreement
- take good care of the premises and keep them reasonably clean
- tell us as soon as possible if the premises have been damaged
- pay for tenant repair costs, where liable
- comply with NCAT or local court orders to pay the cost of repairs or cleaning
- report to the NSW Police any damage that is suspected to have resulted from criminal activity, such as a break and enter, vandalism or domestic and family violence or caused by a third party.
When vacating the premises, the tenant is expected to:
- give Homes NSW 21 days written notice before vacating the premises if the tenant has a continuous tenancy or to give Homes NSW 14 days written notice before vacating the premises if they have a fixed term tenancy. The only exception is where a tenant may end their tenancy immediately, and without notice, if they are in circumstances of domestic and family violence;
- restore the premises to the condition it was in at the start of the tenancy, allowing for fair wear and tear; and
- return the keys to Homes NSW. It is the tenant’s responsibility to ensure the keys are returned, relying on a neighbour or third party is not an excuse for keys not being returned.
Business rules
Determining responsibility
Damage to the premises that is the tenant's responsibility includes:
- damage that is intentional;
- failure to take care to prevent damage (neglect);
- failure to keep the premises in a reasonably clean condition;
- failure to restore the premises to their condition at the start of the tenancy, after allowing for fair wear and tear;
- intentional damage, or neglect leading to damage, that is caused by any member of the household, pets or any visitor who enters the premises with the tenant's permission.
To determine who is responsible for the cost of repairing damage to the property Homes NSW will:
- Take into account the type of damage and any information concerning liability the tenant gave Homes NSW when reporting the damage.
- Inspect the premises and document the damage where appropriate.
- Discuss the items of damage with the tenant and record information the tenant or a third party gives Homes NSW about the possible cause of the damage.
- Take into account the condition of the premises at the beginning of the tenancy, as stated in the Property Condition Report and any evidence of work undertaken on the property at the start or during the tenancy.
- Take into account damage due to fair wear and tear, which Homes NSW is responsible to repair.
- Take into account damage due to an emergency situation where there was good cause to believe that the tenant's health and well-being was at risk.
- Consider whether ill health or inability to maintain the premises has contributed to the damage. For example, if the damage has been caused by children or adults with challenging behaviours, mental illness or disability which could not be reasonably prevented. In these circumstances the tenant is required to provide evidence. For more information see item 16 on the Evidence Requirements Information Sheet.
- Consider whether the damage is a result of criminal activity such as:
- Domestic and family violence. If the damage is the result of domestic and family violence inflicted on the household (except where the tenant is the perpetrator), they should provide evidence of this so that it can be taken into consideration when determining liability. For more information see item 15 on the Evidence Requirements Information Sheet Homes NSW is committed to reducing the incidence and effects of domestic and family violence and encourages people subjected to domestic or family violence to speak with a client service officer or domestic and family violence support workers in the area.
- Other criminal activity such as break and enter or vandalism or damage caused by a third party.
In circumstances of criminal activity or damage caused by a third party the tenant is requested to provide evidence that they have reported the matter to the NSW Police, such as a Police statement or Police Event Number.
If Homes NSW considers the tenant responsible for tenant repair costs, a letter will be sent to the tenant stating:
- the nature of the repairs.
- that Homes NSW requires the tenant to pay for the repair costs in accordance with responsibility under Section 51 of the Residential Tenancies Act 2010.
- that the tenant can accept liability by signing and returning the Notice of Liability within 14 days of receipt (included with letter).
- that the tenant can dispute liability by telling Homes NSW immediately and providing written reasons.
- that if the tenant disputes liability Homes NSW will review the decision that the tenant is responsible for the damage. This may result in a decision to have the charges stand, reduce or be waived. The tenant can choose to have the decision reviewed externally (see Appeals and reviewing decisions). Pending review, Homes NSW will then either waive or reduce the claim and advise the tenant in writing, or take action before the NCAT or a local court to recover the costs from the tenant. At the NCAT or local court the tenant will have an opportunity to tell why they dispute liability. The NCAT or local court will determine if the tenant is liable and if so how much the tenant will have to pay.
- that if the tenant is liable for the repair and the cost is $500 or more, the tenant will be required to pay a bond.
Repeat or serious incidents of Tenant Repair Costs
Where Homes NSW has sufficient evidence of repeat or serious incidents of tenant-responsible damage, including antisocial behaviour by tenants, other household occupants and visitors that cause deliberate or reckless damage to a Homes NSW property (see Antisocial Behaviour Management policy), Homes NSW will immediately take action before the NCAT to obtain a specific performance order. In certain circumstances, Homes NSW will take action to end the tenancy.
Valuation of Tenant Damage
Homes NSW categorises tenant damage in various ways, including:
- damage to the structure of the dwelling. This is recovered at the actual cost of repair;
- removal of any rubbish or household items left by the tenant or household at the end of the tenancy. This is recovered at the actual cost of removal;
- any additional cleaning or repairs to remove any unauthorised fixtures. This is recovered at the actual cost of removal and repair;
- damage to fixtures and fittings within the dwelling. Most items are recovered at the actual cost of repair, however in some instances Homes NSW will allow for depreciation on fixtures and fittings in calculating the damage costs.
Tenant Damage Charges where asbestos is present
SafeWork NSW and NSW Health advices that living in a home built with asbestos-cement building products is not considered a health risk.
Asbestos-cement can be a health risk if asbestos fibres become airborne and are inhaled. This can happen when asbestos-cement building products are broken, sanded, drilled or disturbed in any way that results in airborne asbestos fibres. If a tenant damages their property that has material containing asbestos, they could potentially disturb the asbestos. For example, if a tenant damages a wall that has asbestos-cement material in it.
Where there is evidence that a tenant has damaged their property, Homes NSW will pursue tenant damage charges in relation to the costs involved in replacing the structure that had asbestos-cement in it, for example replacing a wall, but not the costs associated with safely removing the asbestos-cement product.
Vacating Tenants
The tenant must give Homes NSW written notice 21 days before vacating if the tenant has a continuous tenancy, or 14 days if the tenant has a fixed term tenancy. The only exception is where a tenant may end their tenancy immediately, and without notice, if they are in circumstances of domestic and family violence.
Before vacating, the tenant must restore the premises to the condition it was in at the start of the tenancy, allowing for fair wear and tear. This includes the removal of any additions the tenant may have installed, cleaning, rubbish removal and the abandonment of goods, including furniture and vehicles. Before vacating, Homes NSW must carry out a final inspection of the property in the presence of the tenant and complete a final Property Condition Report. This will establish whether there is any unrepaired damage and will enable the tenant and Homes NSW to agree on who is responsible for the damage. In situations where the tenant has vacated immediately due to circumstances of domestic and family violence, it may not be possible to carry out a pre-vacate inspection of the property and complete a final Property Condition Report. In such cases, the necessary requirements will be actioned as part of the post-vacate inspection process.
If the tenant is responsible for the damage and has a rental bond, Homes NSW will recover the repair costs according to the Rental Bonds policy.
Once the tenant has returned the keys to Homes NSW and provided vacant possession, the tenant is no longer responsible for damage that occurs after that. It is the tenant who is responsible for returning the keys to Homes NSW, not the neighbours or another third party.
If the tenant abandons the premises or fails to return the keys, Homes NSW will obtain possession of the premises and assess its condition. If Homes NSW obtains sufficient evidence that the tenant is responsible for damage that goes beyond fair wear and tear, Homes NSW will take action as appropriate before the NCAT or the local court to recover from the tenant the cost of repairing the damage. This includes removal of any goods that remain on the premises or the removal of any additions that the tenant may have installed.
If the tenancy has a rental bond, Homes NSW will claim the repair costs according to the Rental Bonds policy. If the bond does not cover all repair costs, Homes NSW will take action before the NCAT or the local court to recover the outstanding tenant damage costs.
Previous tenants with outstanding Tenant Repair Costs who reapply for housing
If a former tenant reapplying for housing assistance has an outstanding tenant repair debt, Homes NSW will take this into account when assessing eligibility for further assistance. For more information, go to the Eligibility for Social Housing policy.
If the repair debt is $500 or more in a single instance in the six years prior to their new lease being signed, the tenant will be required to pay a rental bond. For more information, go to the Rental Bonds policy.
4. Legislation and compliance
Homes NSW, the Aboriginal Housing Office and tenants must comply with their rights and obligations under the Residential Tenancies Act 2010.
5. Related documentation
6. Further information
Appeals and review of decisions
If a tenant disagrees with a decision Homes NSW has made, they should first discuss their concerns with a Client Service Officer. The next step, if they still believe Homes NSW has made an incorrect decision, is to ask for a formal review of the decision. For information on how reviews work, the tenant can ask a Client Service Officer for a copy of the appeals and reviewing decisions factsheet, or read the policy Appeals policy.
For more information about the NSW Civil and Administrative Tribunal (NCAT) see NSW Civil and Administrative Tribunal.