-->

Goods left behind

Last updated: 29 Mar 2021

What are goods left behind?

Goods are “left behind” when a renter is evicted or permanently leaves rented premises and furniture or other personal items are left behind in the premises.

These provisions of the Residential Tenancies Act 1997 (Vic) (RTA) are important because they set out the way in which a renter may be entitled to compensation where goods have been sold or destroyed by a rental provider.

Have “goods” or “documents” been left behind?

It is important to distinguish “goods” from documents because different provisions of the RTA apply.

Goods are not defined in the RTA. For clarity goods might be considered all those items that are not defined as “personal documents”.

Personal documents means (s 3(1) RTA):

  • Official documents; or
  • Photographs; or
  • Correspondence; or
  • Any other document which it would be reasonable to expect that a person would want to keep.

Monetary value is not a criteria for determining whether something is a personal document to which obligations under the RTA attach.

Documents include documents in writing, books, maps, plans, graphs, drawings, discs, tapes, soundtracks, films, negatives, and other devices in which sounds, visual images or other data is embodied: Interpretation of Legislation Act 1984 (Vic) s 38.

“Goods”

When can the owner immediately dispose of goods left behind?

The owner of the premises can immediately dispose of goods left behind if they are (s 384(1) RTA):

  • of no monetary value;
  • dangerous; or
  • perishable food

However, even if the goods have no monetary value, the owner of the premises must not remove and destroy or dispose of goods that have been left behind if those goods are:

  • labelled containers or labelled urns containing human remains;
  • specialised medical devices, equipment and goods including prostheses and prescription medication; and
  • medals and trophies.

See s 384(2) RTA; Residential Tenancies Regulations 2021 (Vic) reg 93.

What must an owner of premises do about goods left behind?

If a former renter leaves goods which do not fall within s 384(1), s 386 RTA imposes an obligation on the owner of the premises to:

  • take reasonable steps to give notice (in a form approved by the Director of Consumer Affairs Victoria) to the former renter that the goods have been left behind; and
  • store the goods for at least 14 days from the day on which notice was given.

The owner of the premises may remove the goods from the premises and store them at a safe place.

Claiming for goods left behind

A former renter, or other person who has lawful right to the goods left behind, may reclaim the goods at any time before the destruction or disposal of the goods: s 387(1) RTA.

This is subject to any occupation fee charged by the owner of the premises (see Occupation fee below).

Occupation fee

Section 388(1) RTA empowers an owner of a premises to require a former renter to pay a fee in respect of stored goods, if the quantity of the goods prevents the renting out of the premises. This occupation fee must not exceed an amount equal to the rent payable for the period of storage, and in any event, the amount of rent for 14 days: s 388(2) RTA.

If the occupation fee is not sufficient to cover the cost of storage, the owner of the premises may apply to the Tribunal for an order that the relevant person pay a higher occupation fee: s 395A RTA.

What if an owner refuses to store goods for more than 14 days?

Section 395 RTA empowers a former renter or other person entitled to the goods to apply to the Tribunal for an order requiring the owner to store the goods for a period of more than 14 days.

When can goods be disposed of?

An owner of premises may sell or dispose of goods if the former renter, or other person who a lawful right to the stored goods, has not reclaimed them within 14 days (s 391(1) RTA), unless:

  • the owner of the premises has agreed to store the goods for longer than 14 days; or
  • the Tribunal has ordered the owner of the premises to store the goods for longer than 14 days.

Note that purchasers of goods sold according to this procedure take good title unless they had notice of breach of the part or a defect in title in the former renter; or the owner of the premises fails to comply with Part 9 RTA in relation to the disposal of the goods: s 394 RTA.

Right to proceeds of sale

If the goods are sold, the former renter (or person entitled to the goods) may request payment of the proceeds of sale, less any cost to the owner of the premises (including any occupation fee): s 392 RTA. Such a request must be made within six months of the sale.

If no request is made, the owner of the premises must pay the proceeds of sale, less any costs, into the Residential Tenancies Fund, within 30 days after the end of that six month period: s 392(3) RTA. Failure to do so gives rise to a penalty of up to 30 penalty units.

Personal Documents

What are the obligations of the owner of the premises in relation to storage of personal documents?

The owner of the premises has an obligation to take reasonable care of any personal documents for at least 90 days: s 380(a) RTA. The owner can remove but not destroy or dispose of the personal documents during this 90 day period.

The owner of the premises must take reasonable steps to notify the renter of when and from where the personal documents can be collected during this time: s 380(c) RTA.

After 90 days the owner of the premises may dispose of the personal documents: s 381 RTA.

When can the applicant have the personal documents returned?

The former tenant or person with a lawful right to the personal documents has a right to reclaim personal documents at any point before they are destroyed or disposed of: s 382 RTA.

In order to have a right to return of the personal documents the applicant must pay to the owner of the premise the reasonable costs incurred by the owner in (s 382 RTA):

  • notifying the former tenant or resident;
  • removing the documents; and
  • taking reasonable care of the documents.

If a person who has a lawful right to the personal documents reclaims the documents and pays the relevant costs, a penalty of 150 penalty units for natural persons and 750 penalty units for body corporates applies: s 382(2) RTA.

If a person considers that the costs claimed by the owner are not reasonable, they can apply to the Tribunal to dispute the claim or apply for compensation under ss 210, 452 or 472 RTA.

Compensation for in relation to goods left behind

Compensation for destruction, sale or disposal of goods

If goods or personal documents are destroyed, sold or disposed of in contravention of any of the obligations in the RTA, the applicant may apply to the Tribunal for compensation for the loss: ss 396, 401(c).

In such cases, evidence will be critical.

Practice tip

If a client contacts you seeking information and advice about compensation in respect of destroyed goods, you will likely need instructions on:

  • What are the goods?
  • Have the goods been destroyed? Sold?
  • Does the client have any evidence about the goods such as photographs or invoices?
  • Does the evidence establish (a) the existence of the goods, and (b) that this value exceeds the value of removal, storage and sale of the goods.

Compensation for damaged or lost goods or documents

Section 398 RTA also empowers a former renter, or a person otherwise entitled to the relevant goods or personal documents, to apply to the Tribunal for compensation for any loss or damage of those goods or documents. See also s 401(cb) RTA.

Where goods or documents are wrongfully retained

The former renter or person with a lawful right to the goods or personal documents can apply to the Tribunal for an order:

  • for return of the goods or documents; or
  • that the owner of the premises pay compensation for loss of those goods or documents;

in circumstances where the owner wrongfully refuses to return them: s 397.

This page contains legal information only. View our disclaimer.

Not a lawyer?

Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.