Condition reports must be provided to renters by their residential rental provider before they enter occupation of rental premises.
Condition reports are important because they provide ‘conclusive evidence’ about the condition or repair of rented premises (s 36Residential Tenancies Act 1997 (Vic) (RTA)). If a dispute arises about the condition of the premises at the end of the occupancy, the Tribunal must find that the facts within the condition report are proven. It is therefore very important for renters and residents to inspect the premises and note any issues with the premises on the condition report at the beginning of their occupancy.
Condition reports for renters
Prior to the renter entering occupation of the premises, the residential rental provider must give two copies of a condition report (or provide an electronic copy) specifying the state of repair and general condition of the premises. The condition report must signed by or on behalf of the residential rental provider: s 35 RTA. The condition report must be in the form set out in Form 4 of the Residential Tenancies Regulations 2021 (Vic) (Regulations): s 35(1B) RTA; reg 18 Regulations.
It is an offence not to give a condition report, with a penalty of 25 penalty units.
If the renter does not receive the condition report before entering into occupation, the renter may complete their own report and give it to the residential rental provider up to 5 business days after entering into occupation: s 35(3) RTA.
Renters’ obligations
The renter must return one copy of the condition report to the residential rental provider within five business days of entering into occupation of the premises: s 35(2) RTA. The condition report must be either:
signed by the renter (i.e. recording their agreement with the report); or
signed by the renter and recording their disagreement with all or any specified part of the report.
Both the renter and residential rental provider must retain a copy of the condition report: s 35(4) RTA.
Amending a condition report
A residential rental provider or renter may apply to the Tribunal to amend a condition report within 30 days of the residential rental agreement commencing on the basis that it is inaccurate or incomplete: s 35A(1) RTA.
The Tribunal has the power to order that the condition report be modified: s 35A(2).
Purpose of condition reports
Residential rental providers may rely on the condition report if they are seeking compensation for damage to premises.
Under s 36(1) RTA, the condition report is conclusive evidence of the state of repair or general condition of the rented premises on the day of the report where it is signed by both the renter and residential rental provider.
Therefore, renters should not simply accept the condition report prepared by the residential rental provider. Renters must examine the rented premises and make sure to list every single repair issue on the condition report and return it within five business days of entering into occupation in order to ensure they are not held liable for any pre-existing damage.
Exceptions
This presumption that the condition report provides conclusive evidence does not apply where (s 36(2) RTA):
issues arise that could not have been reasonably discovered on a reasonable inspection of the premises;
the renter has recorded their written disagreement with the report (i.e. listing problems with the property that are not reflected in the report); and
the residential rental provider has recorded their written disagreement with the report.
Case study
At the start of the tenancy, Sarah noticed a burn mark on the carpet in her bedroom. Despite this, the condition report didn’t make any mention of the mark and Sarah did not write any comments about this on the report. When the tenancy ended, the residential rental provider claimed compensation for the damage and relied upon the condition report which provided ‘proof’ that the carpet was in good condition when Sarah moved in. Because Sarah had not noted her disagreement with the condition report when she moved in, she was not able to contest the report at the end of her occupancy.
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Challenging condition reports
It is possible to challenge a condition report based on the exceptions identified above under s 36(2) RTA. Other avenues for challenging a condition report should also be considered, such as:
Where the tenancy has been continuing for a considerable period, it is possible to argue the report is out of date and does not account for fair wear and tear?
Has the condition report has been signed by both the residential provider and renter?
Are any of the representations made in the condition report ambiguous, uncertain or unclear?
Condition reports at end of the tenancy
Within 10 days after the end of a residential rental agreement, the residential rental provider or their agent must inspect the premises and complete a copy of the condition report. The renter must be present at the inspection or otherwise have been given a reasonable opportunity to attend: s 35(5) RTA.
Condition reports for rooming house and caravan park residents and Part 4A site tenants
Corresponding provisions to the above also apply in relation to residents of rooming houses (ss 97, 97A and 98 RTA), caravan parks (ss 148, 148A and 149 RTA and Part 4A site parks (ss 206O, 206OA and 206P RTA).