The information in this Fact Sheet is not legal advice. It is intended as a general guide only. It applies only to legislation current in the state of Victoria, Australia. For information regarding a specific tenancy problem, phone the Tenants Union Advice Line on (03) 9416 2577. The Tenants Union accepts no responsibility for actions based on this information, nor for actions based on electronic translations of this information.
When & what can you claim?
If your landlord or agent has 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.
You must prove that you suffered loss (eg loss of income or damage to goods)or substantial inconvenience, and that this was a result of the landlord or agent's actions or failure to act.
Some examples of situations where you could claim compensation at the Tribunal are:
if the landlord hasn't repaired a problem that you have told them about (eg a leaking roof)
if the landlord has tried to evict you illegally
if the agent has been turning up for house inspections without notice or is constantly bringing people around to inspect the property
if the premises were not clean when you moved in
You cannot claim compensation in the Tribunal for pain and suffering,physical injury or death. Claims for personal injury or death must be made in the courts. Contact your local Community Legal Centre for advice if you believe you have such a claim.
The Tribunal has a $10,000 compensation claim limit. If you compensation claim is for more than this, contact the Tenants Union for advice. You may be able to claim under the Fair Trading Act 1999, which has unlimited financial jurisdiction.
The most common compensation case is when the landlord has failed to carry out repairs. (See the Repairs Fact Sheet for more information.) 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 convince the landlord to carry out the repairs more quickly.
How to claim
If you want to claim compensation, you need to serve the landlord with a Breach of Duty Notice. See the Breach of Duty Notices Fact Sheet for more information. Copies of the notice are available from the Tenants Union or any other tenant advice service.
When you fill out the Breach of Duty Notice, you must include:
details of the landlord's breach (what they have done wrong)
what action the landlord should take to fix the problem (eg repair the roof)
the compensation you are claiming for any money you spent (eg the cost of cleaning clothes and goods that got wet and dirty as a result of the roof leak) or inconvenience you experienced (eg staying at a friend's house while your bedroom was flooded)
the amount of money you are claiming for anything that can't be fixed (eg damage to your goods caused by water leaking through the roof)
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. A good way to work out the amount to claim for loss of amenity is to calculate a percentage of your rent (based on how much of the property was affected) and multiply this by the number of weeks that you had to put up with the problem. You must provide proof of your claim at the Tribunal and explain the amount you are claiming for each item.
Make sure the Breach of Duty Notice names the owner of the property (not the estate agent) as the landlord. You can find your landlord's name by checking your tenancy agreement (lease) or by asking your estate agent. If this isn't possible, contact the Rates Office at your local council to find out who owns the property.
Give a copy of the Breach of Duty Notice to the landlord or agent and keep a copy for yourself. Send it by certified or registered mail or deliver it personally so you can prove that they received it. Keep your mail receipt. You must then wait 14 days (allow an extra 2 days for delivery by mail) to see if the landlord pays you the compensation.
If the landlord doesn't pay, you can apply to the Tribunal. Complete a Victorian Civil and Administrative Tribunal application form and attach a copy of the Breach of Duty Notice.
Proving your claim
If you have applied to the Tribunal for compensation, you will have to attend a hearing and prove your case. You must convince the Tribunal that your landlord or agent failed to carry out their legal obligations to you and that you suffered loss or substantial inconvenience 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 should contact the Tenants Union or another tenant advice service to discuss your case as soon as you receive notice of the hearing.
For more information phone the Tenants Union Advice Line on (03) 9416 2577.