Housing and Tenancy

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Goods left behind

What are goods left behind?

Goods are "left behind" when a tenant is evicted or permanently leaves rented premises and furniture or other personal items are left behind in the premises.

These provisions of the RTA are important because they set out the way in which a tenant may be entitled to compensation where goods have been sold or destroyed by a landlord.

Have "goods" or "documents" been left behind?

It is important to distinguish "goods" from documents because different provisions of the RTA apply.

Goods are not defined in the Act. For clarity goods might be considered all those items that are not defined as 'personal documents.'

Personal documents are:

  • Official documents; or
  • Photographs; or
  • Correspondence; or
  • Any other document which it would be reasonable to expect that a person would want to keep (section 3(1)).

Monetary value is not a criteria for determining whether something is a personal document to which obligations under the Act attach (VCAT Commentary [380.02])

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, s 38)

Part A: "Goods"

When can the owner immediately dispose of goods left behind?

The owner of the premises can immediately dispose of goods left behind if they are (s 384(1)):

  • of no monetary value
  • of monetary value, where that value is less than the costs of removal, storage and sale of the goods, see below: Are goods of monetary value?
  • dangerous,
  • perishable food

If none of these criteria apply, the owner of the premises has an obligation to store the goods for 28 days.

When can goods of monetary value be disposed of?

As discussed above, goods of monetary value can be disposed of if the total value of the goods is less than the total costs of removal, storage and sale of the goods (s 384(2)).

Practice tip: with goods of monetary value, need to compare:

Total value of goods versus total cost of removal, storage and sale of goods (s 384(2))

In determining whether goods of monetary value may be disposed, an owner of premises may request an opinion from Consumer Affairs Victoria (section 385). Commentary to the VCAT Act notes this opinion should include:

  • an evaluation of each item of monetary value and a total value of these goods
  • an estimation of the total cost of removal, storage and sale of these goods

Practice note: How is 'monetary value' determined in a CAV report? The RTA and commentary appears to be silent on this issue. Is it resale price? Cost of replacement? We would recommend advocating that monetary value be defined by replacement price. Despite this, in preparing an application for compensation we would also recommend being prepared to argue about the resale value of the goods.

Further, the RTA is also silent on the issue of how is the cost of storage determined? In such circumstances it may be worth obtaining your own quotes for the storage of goods in order to support an application for compensation.

Compensation claims for goods that have been disposed of

Can the applicant get compensation for destruction, sale or disposal of goods?

If goods are destroyed, sold or disposed of in contravention of any of the obligations in the RTA, the applicant may apply to VCAT for compensation (s 396). 

In such cases, as discussed above, evidence will be critical. Commentary to the RTA suggests a landlord may be able to raise defences which are similar to those stated in section 211(a). We note section 211 only relates to 'matters which may be considered by Tribunal' and should probably not be regarded as defences. These considerations may however reduce compensation amounts.

Practice tip: If a client contacts you seeking information and advice about compensation in respect of destroyed goods, you will likely need instructions on:

  • What are the goods?
  • Have the goods been destroyed? Sold?
  • Did Consumer Affairs Victoria prepare a report in relation to the goods? CAV will often refuse to provide a copy of the report to the tenant and section 81 of the VCAT Act allows an application to VCAT to require third parties to provide documents. 
  • What does the tenant say about the elements of the report?
  • Does the client have any evidence about the goods such as photographs or invoices?
  • Does the evidence establish (a) the existence of the goods, and (b) that this value exceeds the value of removal, storage and sale of the goods.

If the landlord has a CAV report, can the tenant make a claim?

A CAV report does not stop a complaint being made contesting the monetary value of the goods. In such circumstances VCAT would likely direct that Consumer Affairs Victoria be notified or joined as a party, and they will be free to contest the monetary value of the goods in question (VCAT commentary [400.04]). Under section 402 of the RTA, if the complainant succeeds in an application for compensation, the landlord may then be indemnified from the Residential Tenancies Fund

Practice tip: How is the monetary value of goods determined?

Generally speaking, the monetary value of goods left behind is determined by evidence. For example, photographs and purchase invoices can demonstrate the age and ownership of goods.

Where a landlord has obtained a CAV report, this evidence will need to be contested by the tenant. The tenant will need to obtain evidence of her own in relation to (1) the existence of the goods and (2) the value of those goods. This evidence will need to address the issue raised by section 384(2). Without such evidence a claim will have extremely limited prospects of success.

Where goods have not yet been sold, destroyed or disposed of

When can the applicant have the goods returned?

The former tenant, resident or person with a lawful right to the goods has a right to reclaim stored goods at any point before they are destroyed or disposed of (s 389), and can apply to VCAT for an order for return of the goods in circumstances where the owner wrongfully refuses to return them (s 397).

In order to have a right to return of the goods the applicant must pay to the owner of the premise the reasonable costs incurred by the owner in (s 389):

  1. notifying the former tenant or resident
  2. storing and removing the goods
  3. organising the sale of the goods (if applicable)

What constitutes 'reasonable costs'?

If there is a dispute about whether the costs claimed by the owner of the premises are reasonable, commentary to the RTA suggests the applicant should pay the costs under protest and then seek recovery of the sum deemed unreasonable by either (VCAT Commentary [389.03]) making an application to VCAT under s 210 or s 452 (in the case of a former tenant or resident).

For clients of the HPLC who are experiencing extreme financial hardship, this is unlikely to be a helpful suggestion. In circumstances where there is a dispute about the reasonable costs of the landlord, it may be prudent to apply to VCAT for an order in respect of these costs. Such an application may be made referring to sections 452, 472 and 382(1) of the RTA. Note: it is important to keep in contact with the landlord and consider relevant time periods to ensure that the goods are not sold or destroyed before the application is dealt with. If there are concerns about the landlord taking such action it may be worthwhile requesting a restraining order from VCAT (see tenancy at VCAT chapter).

Practice tip: what happens where parties cannot reach agreement about the value of goods and they are disposed of ?

If the applicant does not pay the costs claimed and the owner of the premises later sells, destroys or disposes of the goods, the applicant may be able to claim compensation. This is because section 396 of the RTA only protects landlords who have complied with the Act and it is arguable that disposing the goods in circumstances might be contrary to the goods left behind provisions.

When can the applicant claim compensation for goods that have not been destroyed, sold or disposed of?

If the owner of the premises wrongfully refuses to give up goods left behind the applicant may apply to VCAT for an order of compensation (s 397). This may be alternative, or in addition to an order for return of the documents (s 397)

What are the obligations of the owner in relation to storage of goods?

This applies to goods which should not be destroyed or disposed of under s 384.

In the case of a tenancy, the former landlord must (s 386):

  1. Store goods in a safe place and manner for no less than 28 days (s 386(1)). If the landlord wilfully or recklessly loses or damages the stored goods, they will be open to an order for compensation (s 398).
  2. Within 7 days of storing the goods, notify the former tenant by either:
    1. Sending a notice to the forwarding address of the tenant, in the form provided in the regulations.
    2. If the tenant has no forwarding address, inserting notice in a newspaper circulating generally in Victoria, in accordance with the regulations.

Procedure for sale of stored goods

  1. After 28 days of storage, the owner of the premises may sell the goods at public auction. (s 391)
  2. The public auction must be advertised in a newspaper circulating generally in Victoria at least 14 days prior. (s 392)
  3. The RTA provides that a landlord is only permitted to retain reasonable costs where an auction is held within 8 weeks of when the goods were stored (s 393).

If the goods are offered for sale at public auction and not sold, they may be disposed of (s 393(3)). 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 on the part of the person whose goods are being sold (s 394). The applicant does not have the right to return of the goods.

Part B: Personal Documents

What are the obligations of the owner of the premises in relation to storage of personal documents?

The owner of the premises has an obligation to take reasonable care of any personal documents for at least 90 days (s 380(a)).

The owner of the premises must take reasonable steps to notify the former tenant or resident of when and from where the goods can be collected during this time. (s 380(c)).

When can the documents be destroyed or disposed of?

After 90 days the owner of the premises may dispose of the personal documents (s 381).

An owner who complies with these provisions is protected from all claims in relation to the documents (section 396)

When can the applicant have the personal documents returned?

The former tenant or person with a lawful right to the goods has a right to reclaim personal documents at any point before they are destroyed or disposed of (s 381), and can apply to VCAT for an order for return of the documents in circumstances where the owner wrongfully refuses to return them (s 397).

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):

  1. notifying the former tenant or resident
  2. removing the documents
  3. taking reasonable care of the documents

What constitutes reasonable costs?

If there is a dispute about whether the costs claimed by the owner of the premises are reasonable, commentary to the RTA suggests the applicant should pay the costs under protest and then seek recovery of the sum deemed unreasonable by either (VCAT Commentary [389.03]) making an application to VCAT under s 210 or s 452 (in the case of a former tenant or resident).

For clients of the HPLC who are experiencing extreme financial hardship, this is unlikely to be a helpful suggestion. In circumstances where there is a dispute about the reasonable costs of the landlord, it may be prudent to apply to VCAT for an order in respect of these costs. Such an application may be made referring to sections 452, 472 and 382(1) of the RTA. Note: it is important to keep in contact with the landlord and consider relevant time periods to ensure that the goods are not sold or destroyed before the application is dealt with. If there is concerns about the landlord taking such action it may be worthwhile requesting a restraining order from VCAT (see tenancy at VCAT chapter).

Practice tip: what happens where parties cannot reach agreement about the value of goods and they are disposed of ?

If the applicant does not pay the costs claimed and the owner of the premises later sells, destroys or disposes of the goods, the applicant may be able to claim compensation. This is because section 396 of the RTA only protects landlords who have complied with the Act and it is arguable that disposing the goods in circumstances might be contrary to the goods left behind provisions.

When can the applicant get compensation for the destruction, sale or disposal of personal documents?

If personal documents are destroyed, sold or disposed of in contravention of any of the obligations below, the applicant may apply to VCAT for compensation (s 396).

When can the applicant claim compensation for goods that have not been destroyed, sold or disposed of?

If the owner of the premises wrongfully refuses to give up documents left behind the applicant may apply to VCAT for an order of compensation (s 397). This may be alternative, or in addition to an order for return of the documents (s 397)


Rule 17 and form 12 in the Schedule to the RTA Regulations

Rule 18 and form 13 in the Schedule to the RTA Regulations