Tenants who are evicted can seek an urgent order from VCAT to recover their possessions or documents. Landlords may dispose of or destroy abandoned goods under certain conditions but otherwise must store them and notify the tenant.
If goods or documents are left in the rented premises after the tenancy agreement has terminated, the RT Act imposes obligations on the landlord regarding those goods and documents. It is paramount that the tenant takes photos of their personal goods possession and documents. It is preferable to remove as much property as possible rather than leave them in the rented premises.
Further, it is generally recommended, if a tenant is excluded by reasons of the execution of a warrant of possession or any other reasons, and that if a party wishes to regain access to collect their goods and documents, they should make an urgent application to VCAT, pursuant to section 397.
If the landlord disposes of, destroys or sells the tenant’s goods or documents, and has not complied with the abandoned goods provisions (pt 9 RT Act), the tenant or another person who has a lawful right to the goods or documents can apply for compensation (s 396) (see “Compensation claims”).
Destruction and disposal
The landlord may remove and destroy or dispose of goods if they are:
• of no monetary value;
• perishable foodstuffs; or
• dangerous (s 384(1)).
The landlord may also remove and destroy or dispose of the goods if the total estimated cost of removal, storage and sale of all the goods combined is greater than the total monetary value of all the goods combined (s 384). This does not authorise the retention by the landlord of the goods for their own use.
The landlord can request an opinion from the Director of CAV (“director’s statement”) as to whether or not particular goods may be disposed of (s 385).
It is not uncommon for the director’s statement to value a tenant’s goods at substantially less than what it might cost the tenant to actually replace their goods. As such, it is not uncommon for a statement to direct that the landlord may dispose of the tenant’s goods in accordance with section 384. As such, it is advisable that the tenant negotiate with the landlord to retrieve any goods that have been left in the rented premises as soon as possible.
It is not mandatory for the landlord to obtain such a statement. However, the RT Act protects landlords who dispose of goods in reliance upon a Director’s statement. In those circumstances, if the landlord is found liable to compensate the owner of the goods for wrongful disposal, the landlord can apply to VCAT for compensation to be paid out of the Residential Tenancies Fund (s 402). For more information, contact CAV (see “Contacts”).
If goods are not to be destroyed or disposed of, the landlord must store the goods in a safe place and manner for at least 28 days (s 386(1)).
Within seven days of storing the goods, the landlord must send notice to the tenant’s forwarding address advising them that the goods have been stored, and what the tenant must do to recover them. If the landlord does not have the tenant’s forwarding address, they must put a notice in a newspaper circulating throughout Victoria (s 386(2)).
The owner of the goods may reclaim them at any time before they are sold (s 389(1)).
Before returning the goods, the landlord is permitted to require the owner of the goods to pay the reasonable costs of the landlord in notifying the tenant, removing and storing the goods and organising their sale. The landlord must not refuse to give the goods back once those costs have been met (s 389(2)).
The RT Act defines personal documents as “official documents, photographs, correspondence or any other document which it would be reasonable to expect that a person would want to keep” (s 3).
An extended definition of “document” is provided at section 38 of the Interpretation of Legislation Act 1984 (Vic). That definition is very broad and includes books, films and audio CDs.
If the tenant leaves behind personal documents, the landlord must take reasonable care of them for at least 90 days. The landlord may remove them, but must not destroy or dispose of them. Reasonable steps to notify the tenant as to how they can collect the documents must be made (s 380).
If after 90 days the owner of the documents has not reclaimed them, the landlord may dispose of them provided there is no other Act or law requiring that they be dealt with in another manner (s 381).
The owner of the documents may reclaim them at any time before they are disposed of. Before returning the document, the landlord is permitted to require the owner of the documents to pay the reasonable costs of the landlord in notifying the tenant, and removing and taking care of the documents (s 382).