Q+A: Water restrictions, drought and rental bond
"My tenancy ended last week. The agent is demanding all of my bond to pay for turf and lawn work. The lawn is not what it was at the beginning of the tenancy. But, we are in drought and there are water restrictions. It does not seem fair that I have to pay for turf etc when the lawn would probably have died anyway. Where do I stand? What can I do?"
Grant Arbuthnot, Principal Legal Officer, Tenants' Union of NSW
First of all, claim your bond. You can claim your bond by filling in a ‘Claim for Refund of Bond Money’ form from Fair Trading, or by using Rental Bonds Online (if that's how you lodged your bond when you started the tenancy). Once the tenancy is over, either party can claim the bond without the signature of the other. Fair Trading will then send a letter to the other party saying the tenant has claimed the bond, if you don’t apply to the Tribunal (NCAT) within 14 days we will pay the bond to the tenant. This is called unilateral bond claim.
If the landlord/agent is serious about their claim on your bond, they will apply to the Tribunal and the dispute will be decided on the evidence available. Make sure you go to the Tribunal. If you are not there, it is likely to go against you.
Your evidence will be things like: the condition reports, photographs, climate data (from the Bureau of Meterology), water restriction documents and your oral evidence of what happened during your tenancy.
It is important to have a look at your tenancy contract. There are some relevant obligations. You have agreed:
- To not intentionally or negligently cause or permit damage to the residential premises, and
- To leave the premises (at the end of the tenancy) in as nearly as possible in the same condition, fair wear and tear excepted, as at the start of the tenancy.
These obligations are read together to prevent tenants being liable for events like a stranger crashing a car into the house. That would be more than fair wear and tear, but not intentional or negligent damage by the tenant.
The Tribunal will have to consider:
- whether the drought makes the damage fair tear (by natural forces), and
- whether or not the water restrictions prevented reasonable action by you.
The Tribunal, over time, has seen disputes like yours before. And found both for, and against, tenants in different cases. I have found 12 published cases on lawns, plants, drought and/or water restrictions. You can read these cases on the website austli.edu.au. They are listed below.
Residential (Tenancies) Tribunal
- Pascuzzo (L) v Cassidy & Bronish (T)  NSWRT 196 (17/9/91)
- Roberts (T) v Schubert & Dennis (L)  NSWRT 5 (16/1/95)
Consumer Trader and Tenancy Tribunal
- Hurst v Grace & Walker (Tenancy)  NSWCTTT 853 (11/12/02)
- Moffat v Gorham (Tenancy)  NSWCTTT 564 (28/8/03)
- Hoad v Phillips (Tenancy)  NSWCTTT 175 (5/3/04)
- Cancio v Ware (Tenancy)  NSWCTTT 498 (12/8/04)
- Marino v Ball & Norris  NSWCTTT 636 (3/11/04)
- Ward & Becker v Campbell (Tenancy)  NSWCTTT (27/1/5)
- Diamond v Karib & Francis (Tenancy)  NSWCTTT 496 (8/9/06)
- Mann v Smith (Tenancy)  NSWCTTT 853 (20/2/08)
- Ojong v Powell (Tenancy)  NSWCTTT 208 (30/4/09)
- Jones & Gower v Selwyn (Tenancy)  NSWCTTT 369 (15/8/11)