Renting - Agent Refusing to Allow Me to Attend Final Inspection and Creation of Final Condition Report

nigel deborah on 03/02/2022 - 18:29
Last edited 03/02/2022 - 18:30

Hello OzLegalAdvise,

Edit/ All the below occurred in Victoria:

My second post on here and once again an issue with my (abysmal) agent. I finally puckered up and moved out (btw, highly recommend NEVER renting a property managed by MICM), but now have an issue with the final condition report.

Per the Tenancy Act, S35(5);

(5) Within 10 days after the end of a residential rental agreement, the residential rental provider, or that person's agent, must complete the copy of the condition report retained by the residential rental provider or the renter under this section—
(a) in the presence of the other party; or
(b) in the absence of the other party, if the party has given the absent other party a reasonable opportunity to be present when the condition report is completed.

I requested multiple times, including on the day that I vacated, for the agent to notify me of when they planned to conduct the final inspection. I was repeatedly told that I could not attend, and then finally told that the inspection had taken place and that 'unfortunately the tenant cannot attend the final inspection as it is only for the agent to complete'.

I have done some research online, and I could send them a breach of duty, but not exactly sure what I would demand? Any suggestions welcome. I am especially interested as there are a few things which they might kick up a fuss about, and I am thinking that this might invalidate the final condition report as evidence.

As a footnote - make sure you never get your rental professionally cleaned at the end of the lease, if it can be 'reasonably clean' without it (even if your RE agent is bullying about it). That standard of cleanliness is pretty low if you check out previous VCAT results. Of course this has nothing to do with my interest in the final report…

Home & Garden

Comments

  • spackbace on 03/02/2022 - 18:32
    +7

    I am especially interested as there are a few things which they might kick up a fuss about

    Just wait till it's done, then kick up a fuss. Make a nuisance of yourself now and they'll nitpick more than they have to

  • El cheepo on 03/02/2022 - 19:13
    +1

    If they are that painful would it actually make a difference if you had attended?

    More then a few agents would be lovely to your face and then smash you in an email later on.

    Wait and see what they pick and go from there.

    • nigel deborah on 03/02/2022 - 19:15
      +2

      It allows you to a) ensure the photos were actually taken in your premises, and b) take photos for yourself at the same time to ensure no shenanigans and for your own records. You can also do this prior to vacating but if you do it infront of the agent it's proof of day/time they were taken.

      There might be more reasons, but that's why I wanted to attend.

      • Summoner on 03/02/2022 - 19:35
        +1

        While it is a good idea to attend the final inspection, if you completed the exit condition report and took thousand photos right before handing the key back to the agent, thats still a solid proof.
        Also, if you are worried about the bond, apply for the bond return yourself.
        https://www.consumer.vic.gov.au/housing/renting/rent-bond-bi…
        No matter if you were there or not, if the agent is gonna give you trouble, they will give you one anyway.

        • nigel deborah on 03/02/2022 - 19:38

          The exit condition report is what the agent is completing at the final inspection. But yes, for the most part agree with your other comments.

          • Summoner on 03/02/2022 - 19:44

            @nigel deborah: Oh… Sorry. Well i should have known rules might be different in other state. I'm QLD, here both the tenant and agent complete the exit condition report. And we can still be at the agent's final inspection if we ask for it. I just thought it would be same. Its a shame they just ignored the rules and not allowing you to attend the final inspection.

      • El cheepo on 03/02/2022 - 20:31

        Fair enough.

        I understand the concern but as mentioned summoner, if you have taken 100,000,000 photos for your own records then theres not many shenanigans to be pulled.

        In any case its a bit rubbish they didn’t let you know when they were going.

        I hope it turns out the best for you.

  • iNeed2Pee on 03/02/2022 - 21:02
    -1

    Please. For the love of god.

    It is advice….not advise. 😂

    • nigel deborah on 03/02/2022 - 21:42
      +3

      Thanks for the input… Just the one error.

      Should be God, too, if we're nitpicking.

      • iNeed2Pee on 03/02/2022 - 21:45

        touché my good friend.

        Good luck with your issue:)

      • havebeerbelywillsumo on 03/02/2022 - 23:57

        "god" can be a reference to "I don't believe in any of this religion business, so I use a lower case "g" (I think: that's the way I play it anyway)

  • raptormesh on 03/02/2022 - 21:35

    Yeah MCIM, the agent who organised an inspection and then didn't bother to show up…twice.

  • Brodo Faggins on 03/02/2022 - 22:59

    I want to start by saying that this whole thing can go against you - Your Tenancy Agreement would state that your clean needed to be done as at the last day of living in that premise (or completed prior to). So it is irrelevant as to what day they will conduct the final inspection. For all you know the agents can have it done on the very next day outside your contract, especially if they already have a new tenant lined up to come in. Your evidence will benefit you, otherwise the agents are in the right, as per tenancy contract.

    Now for what might work:
    Breach of duty can apply here - the agents have a duty of care to ensure property is maintained at X condition on behalf of the i) owner, ii) the Strata committee, iii) building management (if you live in apartment complexes), and iv) future tenants. By preventing you a date of final inspection in writing, (and thus you being in a position to not clean it to certain standards), they are breaching said duty.

    Threaten to take them to the VIC Tribunal (VCAT in Vic I believe), and damn well do it if you have sufficient evidence (emails/texts as to why they're declining). The hearing fee only costs a couple hundred $, but well worth it for your bond refund. There are also situations where the agent can lose their RE licence.

    Agents hate wasting time there and as you've pointed out, they could be breaching the law here, so the Tribunals may favour you (unless there's some untold story in your post that led up to this incident). I also believe there should be written notice (email/text suffices) as to why the agent declined your final inspection (or request to find another date). If there isn't notice, again you're favoured. (See if you can provide your own emails/texts requesting for final inspection as evidence). But again it's assumed under the Tenancy Agreement that you sign, that it needs to be done before you leave.

    I hope this really helped and you get your way! :)

    PS paying for cleaning sometimes saves yourself time/energy - as you've said standard of cleanliness is not high & is done through a checkbox list by agents eyeballing it.

  • Cookiescream on 03/02/2022 - 23:12

    I took landlord to VCAT on "reasonably clean" clause, he said he was going to fight it. The moment I raised it on VCAT to apply for my bond, landlord gave up.

  • Tovers93 on 04/02/2022 - 11:43

    As many have said, wait and see if they try and sting you on damages.
    Then you can take action and evidence that they didn't let you attend or didn't share the report within the time frame. Once VCAT comes into the picture they'll likely drop it pretty quickly

    We moved out of a place last year and I spent the whole day cleaning (only a small apartment). The agent attended for the inspection and tried nitpicking me to wipe down some fingerprints on kitchen cabinets - not something that is likely to breach the "reasonably clean" threshold… But we all know what they're like

  • Iwantthebestprice on 04/02/2022 - 19:21

    I previously commented about this on another thread, and I don’t know how to post it here but look through my comments on a recent post about bond back and rental and you will see it, but basically take it to VCAT and get your money back

  • nigel deborah on 18/02/2022 - 10:16

    Update for anyone that is interested. Agent tried to charge us $350 for carpet cleaning, because we couldn't provide a receipt (we did it ourselves). Cited discoloration on the carpet that is clearly visible in the entry condition report. Despite pointing this out to them, have continued to lodge a VCAT claim which had me very confused.

    Turns out, current wait times for a bond related VCAT hearing is 3-6 months (or more!). The agent then sent me an email saying that if I would 'like to see my bond anytime in the next 6 months', I should just agree to have the work done and they will withdraw the claim.

    Using VCAT delays as a bullying tactic, really terrible. Language they used in our emails prior to that also tried to suggest that the agent had my money, not the RTBA. I'm sure what they're doing is their standard practice to extract some free money from vulnerable people, given it's MICM they have a lot of international students and working holiday makers.

    I'm almost certain they'll withdraw the VCAT claim before the hearing, as they have zero chance of being succesful. To stop them from doing that I've lodged a counter claim, claiming a refund on some of the tenant transfer fee I had to pay last year (see my post history).

  • nigel deborah on 12/04/2022 - 12:59
    Merged from Update/Rant - Agent Refused to Allow Access for Final Inspection / Claiming Bond via VCAT

    Afternoon All

    As most OzBargainers never post updates for these kinds of threads, I thought I'd type a quick one out. Original thread here.

    After conducting their inspection without me, the agent sent me photos of furniture marks on the carpet (i.e. normal depressions that will go away in time), a minor stain which is clearly visible in the original condition report (before we moved in) and a single dead moth on the floor (confirmed not to be there in photos I took when I left, so it's entered and died). They told me I would be required to pay $100 for 'touch-up' cleaning. Of course, I refused, then submitted a tenant initiated bond claim.

    They blocked the claim by lodging a compensation claim to VCAT. I was pretty surprised they took that step, as I never thought they'd be bothered over $100 and a couple of 'problems' which (in my view) have a near zero percent chance of holding up.

    Anyway, it was after I got my first correspondence that I realized why they were so happy to try and strongarm me into paying such a trivial amount. VCAT did not set a hearing date, but rather advised me that the wait list of this kind of claims was currently 6-12 months. Yes - that's right - they'd be blocking the refund of my $4000 bond for up to a year, maybe longer. They then sent me an email advising me that I could accept their 'settlement' offer of now $350 dollars for cleaning, or I'd have to wait until then to get my money back. After doing some research, I found that it costs the agent nothing to submit this type of bond compensation claim, and the form they submit probably took 5 minutes to fill out.

    I've since formed the view that the agent (MICM) is systematically using VCAT delays to threaten/coerce tenants into paying small amounts out of their bonds as a way to reduce their own costs (cleaning above and beyond 'reasonably clean' per the tenancy laws). For tenants who are returning to their home country after studying or similar, and cannot attend (or in some cases even understand enough English to really comprehend the complicated rules/procedures/processes surrounding VCAT), they would have no choice but to do what the agent is asking. So far, I've confirmed this to be the case with 3 of the people I met while I was living in the apartment building. In cases where tenants call their bluff and wait the 6-12 months, there is no penalty for the agent just withdrawing their claim a couple weeks before the hearing.

    Anyway, rant over. I think there needs to be an advocacy group which works to better educate people on their rights, and to shine a light on dodgy real estate agents using VCAT to coerce renters into handing over $$$. I've submitted a counter claim to ensure that they don't just give up on their case a couple of weeks before the hearing (which they have no chance of winning), claiming a refund on a ridiculous tenant transfer fee they previously had me pay.

    • Belgarath on 12/04/2022 - 13:06
      +2

      My understanding is the the RTA will only hold the portion of bond in dispute and release the rest of the bond. Did you speak to the RTA regarding?

      • nigel deborah on 12/04/2022 - 13:46

        They held the full amount after the claim was made, but I will see if I can find any further info or contact them to get the portion that hasn't been claimed refunded.

        Even if they do offer the refund via manual request, anyone who is vulnerable to the coercion in the first place is probably not in a position to work that out either (I didn't know about it and I spent ages reading through all this stuff).

        /edit
        I gave the RTBA a call and they confirmed that the full amount is held, and there is no way to have the remainder refunded. They suggested lodging a complaint with consumer affairs, but said it would be difficult to prove that is what the agent was doing.

    • [Deactivated] on 12/04/2022 - 13:08
      +10

      boy i love it when someone actually fights back against these pricks and doesn't just let them get away with it

    • JMosk on 12/04/2022 - 13:36
      +4

      A Current Affair could be a pretty good avenue if you're willing to put some time into this and publically oust them

    • Hardlyworkin on 12/04/2022 - 13:41
      +1

      MICM are hopeless. They churn through agents really quickly, will probably be someone else by the time it is at VCAT.

    • kanmen on 12/04/2022 - 13:41

      Tenants Victoria

      • nigel deborah on 12/04/2022 - 13:43

        A good organisation but hopelessly understaffed. They have a hard time supporting requests coming in, let alone doing outreach/education. Back when I had my first issue I spent two weeks trying to contact them and didn't get through once (although - that was at the beginning of COVID when they probably had a lot of demand).

        • kanmen on 12/04/2022 - 13:45

          Not uncommon for any campaigns/advocacy organisation unfortunately.

    • bobbified on 12/04/2022 - 13:51
      +3

      There may not be much you can do in legal terms, but there's nothing stopping you from being a headache to them. (Just don't break the law doing any of it). Start with something like negative reviews… then start calling the head agent or whoever to "get answers" etc. And keep calling, but stop short of being charged with harassment!

      • brendanm on 12/04/2022 - 21:08

        Good idea, call every single day to "get an update" on how it's all going. They should get pretty tired of that.

    • Cheaplikethebird on 12/04/2022 - 13:54

      Submit the tenant initiated bond claim the day you exit the property. Always.

      • nigel deborah on 12/04/2022 - 13:59
        +3

        Definitely agree, and that's what I did (give or take a day or two). They can immediately block the claim by lodging with VCAT, which costs them nothing and takes 5 minutes of their time, unfortunately.

        • Cheaplikethebird on 12/04/2022 - 14:12
          +2

          Yeah that sucks. Almost guaranteed you'll win at VCAT though, glad you're able to hold out for now so you can call them on their bluff.

          • nigel deborah on 13/04/2022 - 17:56

            @Cheaplikethebird: Yeah. Just made me think about how much a situation like this sucks for people that can't afford to have that much money locked away, or are leaving the country, etc. who basically have no choice but to pay up for whatever ridiculous claim the agent is making.

    • Donaldhump on 12/04/2022 - 13:59

      battle it, maybe they will give up
      surely you would get the difference back straight away though

      • nigel deborah on 12/04/2022 - 14:00

        I will, and I'm not worried about losing at all. It's more about the 6-12 months I'll have to wait for my $4k back (meanwhile I've paid another bond to the property I moved into). As above, I've also just confirmed with RTBA that they do not do partial refunds, which seems stupid.

        • Donaldhump on 12/04/2022 - 14:09

          i know my old management agent hated going to qcat so he dropped them

          maybe you can charge interest on it.

          or settle the debt, drive past and fling a bog at the window or egg it a bit

    • screensaver on 12/04/2022 - 14:12
      +4

      They may have planted the moth. I would leave reviews everywhere, but stick to the facts. Something like They are holding my large bond and charging me for a dead moth which wasnt there when I left.

    • pegaxs on 12/04/2022 - 14:57

      Hahahah. Landlords are arseholes. All this over a dead moth. And let me guess a family member of the agent or the LL is the one doing the cleaning.

      I think I'm going to start a dead moth removal service if the going rate is upwards of $100.

      • netjock on 12/04/2022 - 15:30

        Landlords are arseholes

        I never talked to any of my tenants in 18 years. If there was ever any bond held back I haven't seen it. Either my tenants have been good (usually 12 - 24 months) or the agents have been fair.

        There was one case where the tenant didn't pay the rent, they went to VCAT and got the sheriffs in pronto. But only happened once in 18 years.

      • brendanm on 12/04/2022 - 21:09
        +2

        It's not the landlord, it's the rental agency. The landlord probably has no idea this is even happening.

    • mr_alligator on 12/04/2022 - 15:23
      +2

      RE agents are the dodgiest people. Hence when i recently vacated a rental property since we purchased a house, I stopped paying rent after giving them a 4 week notice period as I knew exactly what they would be up to. They called me couple of times which I ignored knowing there is nothing they can do.

      The intention was to let them use my bond (4 weeks worth of rent) towards the 4 weeks of unpaid rent rather than giving them the power to withhold my bond.

      That said, I actually spent over 20 hours thoroughly cleaning the place after vacating since I was on annual leave and had time on my hands. We lived in it for over 5 years and left it meticulously clean but after the final inspection they still wanted us to cough up $1700 including $1000 to go towards the cost of repainting. I called their bluff and shared with them links to previous NCAT cases relating to wear and tear and they went away.

    • orangetrain on 12/04/2022 - 15:33

      Look up properties rented out over past year under agent's name, send letters to the properties to warn tenants. I bet those tenants would really appreciate to hear this while you may get a very angry agent begging you to stop.

    • Davo1111 on 12/04/2022 - 15:44

      Did you offer to come remove the moth?

      You were banking on them not having the time to go to VCAT, they've subsequently got one back on you.

      It's shitty, but pretty much eye for an eye,.

      • nigel deborah on 12/04/2022 - 17:39

        I think it's very fair to assume that they will not take out a frivolous case - but you're right that I assumed they wouldn't do it because of the effort involved. What I didn't realise, is that there's almost zero cost or effort actually involved in initiating (and then later withdrawing, before the hearing) the case.

        I have proof that the moth was not there when we left, which I provided to them. I also showed them proof from the entry report (which they signed) that both other items they mentioned (carpet depressions and minor stain) were present when we moved in. We're not talking anything controversial, 10/10 people would look at the evidence and conclude the same thing. That's why I was so surprised when they lodged, and why in my view it's so clear they're using it as a tool for coercion rather than its intended purpose of settling valid disputes.

        • gustus on 13/04/2022 - 16:36
          +1

          Save the emails that refuse your final inspection with them. (It's been awhile since I last rented so I maybe wrong here) In NSW, it is mandatory that tenants must be given opportunity to attend the final inspections. Those emails should give you another advantage in the hearings. And I believe it is not required for you to supply carpet cleaning receipts unless the agent think the carpet requires professional cleaning.

          Also if this is another usual case of the agent tries to pocket the money for themselves, I think they will drop the claim later since it is time consuming for them to pursue and attend the hearings.

          Wish this go well for you OP. Don't let those greedy b@stards get your money

      • brendanm on 12/04/2022 - 21:11

        Did you offer to come remove the moth?

        A single moth is not cause for a claim from the bond.

    • tsunamisurfer on 12/04/2022 - 16:12
      -3

      I stand by RE Agents and Landlords.

      After conducting their inspection without me,

      There is no law that you have to be there, it is your preference.

      I refused, then submitted a tenant initiated bond claim.

      So you can play the game but bitch when the agent does?

      they'd be blocking the refund of my $4000 bond for up to a year,

      The bond is held so that if the tribunal decides in favour of the agent, the monies can easily be obtained, they aren't blocking it for sh!ts and gigs.

      Anyway, rant over. I think there needs to be an advocacy group which works to better educate people on their rights,

      You don't think advocates for renters already exist?

      • nigel deborah on 12/04/2022 - 17:44
        +2

        Wrong, it is the law that the tenant must be provided reasonable opportunity to attend. I was told flat out (in writing) by the agent that I could not attend.

        Per the Tenancy Act, S35(5);

        (5) Within 10 days after the end of a residential rental agreement, the residential rental provider, or that person's agent, must complete the copy of the condition report retained by the residential rental provider or the renter under this section—
        (a) in the presence of the other party; or
        (b) in the absence of the other party, if the party has given the absent other party a reasonable opportunity to be present when the condition report is completed

        For your other points, you've missed the intent of my post - the 'evidence' is frankly ridiculous, and their chance of success zero. It's obvious to me that they are simply using the VCAT delays as a tool for coercion. You can choose to assume I'm lying about that, but then why read/respond to the post at all.

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