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.
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):
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.
The owner of the premises can immediately dispose of goods left behind if they are (s 384(1) RTA):
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:
The owner of the premises may remove the goods from the premises and store them at a safe place.
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).
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.
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.
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:
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.
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.
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.
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):
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 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.
If a client contacts you seeking information and advice about compensation in respect of destroyed goods, you will likely need instructions on:
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.
The former renter or person with a lawful right to the goods or personal documents can apply to the Tribunal for an order:
in circumstances where the owner wrongfully refuses to return them: s 397.
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