If your landlord failed to carry out any of their duties under your tenancy agreement (lease) or the Residential Tenancies Act 1997, you can apply to the Victorian Civil and Administrative Tribunal for compensation.
When claiming compensation, you must prove that you suffered loss (eg damage to goods, loss of goods, loss of money) or substantial inconvenience (e.g. not being able to use your home), and that this was a result of the landlord or agent’s actions or failure to act.
You have up to 6 years from the date of fault within which you need to file your application for compensation. You can claim during or after your tenancy providing you are within this 6 year time limit.
Some examples of situations where you could claim compensation at the Tribunal are:
You should keep in mind that the Tribunal can consider whether you have mitigated your loss in deciding how much compensation to order. This means that you should take reasonable steps to minimise the costs that you incur. You should also make sure that you take steps to try to get the landlord to remedy the breach, such as following up on requests if they are not complied with.
The Tribunal has a $10,000 compensation claim limit under the Residential Tenancies Act 1997. . If you want to claim more than $10,000 you will need the landlord’s consent, or you could make your application to the Magistrates’ Court. Alternatively, you may be able to make a claim under the Australian Consumer Law and Fair Trading Act 2012 (Vic), which has unlimited financial jurisdiction.
If you want compensation for pain, suffering, physical injury or death, you need to contact a Personal Injury Lawyer for advice.
For personal injury you might be able to claim under a different are of law – but not the Residential Tenancies Act 1997 – so the steps you need to take will be different. See Finding the right lawyer (FCLC website) or Find a lawyer (LIV website).
The most common compensation case is when the landlord has failed to carry out repairs. It is a good idea to wait until the repairs have been done before you claim compensation, as the Tribunal will not always hear cases where the compensation is still adding up. However, you should notify your landlord that you intend to claim compensation, and that the longer they delay the repairs the more you will be able to claim. This will sometimes persuade the landlord to carry out repairs more quickly.
We also recommend that you take action through VCAT to seek orders that the landlord must complete repairs. VCAT may be reluctant to order the landlord to pay you compensation for the entire period that a repair was outstanding if you have not sought repair orders from VCAT.
If you want to claim compensation for a breach of duty under the Residential Tenancies Act 1997 and you are still in the property, you need to serve the landlord with a Notice for Breach of Duty (available from Consumer Affairs Victoria website).
When you fill out the Breach of Duty Notice, you must include:
You can claim for several matters on the one form. Attach an extra page if you need more space. If you want to make a claim for loss of amenity (ie for not being able to make full use of the property), you will need to put a dollar value on this. At the Tribunal you must be able to explain the amount you are claiming for each item and provide proof of your claim.
To work out your claim for loss of amenity, calculate a percentage of your daily rent (based on how much of the property was affected) and multiply this by the number of days that you had to put up with the problem. If you need help to work out the amount that you should claim, contact us.
Give a copy of the Breach of Duty Notice to the landlord or agent and keep a copy for yourself. You can send the notice by regular mail or email (if the landlord or agent has agreed to you giving notices by email) but we recommend that you use registered mail or deliver it in person so you can prove that they received it. Keep your mail receipt. If you send the notice by email, you should make sure it is to the email address nominated by the landlord or real estate agent and if possible request a read receipt. You must then wait 14 days to see if the landlord pays you the compensation. If you send it by mail, you’ll need to wait the extra days for the mail to be delivered. See Australia Post delivery times.
If the landlord doesn’t pay, you can apply to the Victorian Civil and Administrative Tribunal. Complete a VCAT application form and attach a copy of the Breach of Duty Notice. You might have to pay a VCAT application fee and you should ask to be reimbursed the application fee in your application. The reimbursement of any application fee will be a decision for the Tribunal based on the outcome of the hearing.
If you want to make a compensation claim after you have moved out of the property, you do not need to serve a Breach of Duty Notice. You simply need to complete a Victorian Civil and Administrative Tribunal application form. On the application form you should state how much compensation you are seeking and why you are seeking it.
It is a good idea to write to the landlord before you make your application to see if you can settle the matter before going to the Tribunal. You should state in your letter that you will apply to the Victorian Civil and Administrative Tribunal if they do not agree to pay within a set time such as 14 days. Keep a copy of the letter as you can use this as evidence at the Tribunal.
In many cases, if the landlord makes a claim against your bond, it may be appropriate to make a counter claim for your compensation. This way both claims can be decided at the same time instead of having two hearings. And if you are successful you might get more of your bond back.
If you have applied to the Tribunal for compensation, you will have to go to a hearing and prove your case. You must convince the Tribunal that your landlord failed to carry out their legal obligations to you and that you suffered loss and/or damage as a result.
You will need evidence (eg photographs, witnesses, letters you have written to your landlord or agent, receipts for expenses or quotes for repairing damage to goods).
You will also need to be able to explain to the Tribunal how you have calculated your compensation claim.