Tenants are responsible for ensuring that all of their belongings are removed from the premises at the end of the tenancy. However, from time to time, tenants leave things behind for various reasons. It may be a genuine oversight or a deliberate or unavoidable act by the tenant. Regardless of the circumstances, landlords and agents must follow the correct process when goods have been left behind.
Before you take any action you must be certain the tenancy has ended. This is particularly important if you or the tenant have not given notice to end the agreement. The premises may look abandoned but the tenant may have gone on holiday, away for work, or be in hospital. Check with the neighbours, the tenant's workplace or try contacting their mobile phone or email address if you have those details. If you have doubts about whether the premises have been abandoned, you can apply to the NSW Civil and Administrative Tribunal. If no doubt exists, you do not need a Tribunal order. You can simply change the locks to secure the premises and deal with any goods that have been left behind.
You can dispose of any rubbish or perishable items left behind by the tenant immediately. For example, a broken chair and a pile of old newspapers, perishable food left in a cupboard or dying pot plants in the yard. You do not have to notify the tenant or get their consent to dispose of such items. However, you must be reasonably sure that what you are disposing of is in fact rubbish. If you have any doubts it is advisable to treat the items as goods of value.
If items other than rubbish have been left behind you have to attempt to notify the former tenant. You need to try to tell them that you have their goods and they will be disposed of after a certain time if they are not collected. This can be done in writing (mailed to a forwarding address if known or to the property in case the tenant is having their mail redirected), in person or over the telephone. If after 2 days you have not been able to contact the former tenant you can leave a notice in a prominent position somewhere on the premises (e.g. stuck to the front door). If the goods are obviously leased you should also contact the rental company.
Goods of value could include such things as furniture, electrical items and clothing. If these goods have been left behind by your tenant they need to be stored in a safe place. This could be either on the premises or somewhere else. Goods of value need to be kept for at least 14 days from the day you notify the tenant to come and collect them.
Different rules are in place when dealing with personal documents left behind by a tenant. Personal documents are defined under the Act as being:
Personal documents left behind by a tenant need to be kept in a safe place for at least 90 days from the day you give notice to the tenant. This longer period recognises the importance or sentimental value of such items.
The former tenant, or anybody else with a legal interest in the goods (e.g. the tenant's ex-housemate or a goods hire company) can reclaim the goods at any time they remain in your possession. A suitable time and day for collection needs to be agreed upon. You cannot refuse to return the belongings, even if the former tenant owes rent or money for some other reason.
Generally, goods left behind can be reclaimed free of charge. However, you can charge an 'occupation fee' to the person claiming the goods if enough goods were left to prevent you from renting the premises. An occupation fee (equal to a day’s rent) can be charged for each day the goods are held, whether they are stored on the premises or elsewhere, up to maximum of 14 days, even if you choose to hold the goods for longer.
If the former tenant fails to reclaim the goods within the 14 days you can choose to:
Unclaimed personal documents can be disposed of after the 90 days in an appropriate manner, such as by returning to the issuing authority (wherever possible) or by shredding.
If you have followed the law correctly, you are protected if the tenant comes back to you later about the goods. However, if the law was not followed you could be ordered by the Tribunal to pay compensation to the tenant. This could include any damage to the items while they were in your possession.
You can apply for an order from the Tribunal as to what to do with the goods if the tenant abandons the premises or dies. However, this may take a few weeks and the Tribunal may tell you just to follow the same process set out above. You can apply for an order if there is a dispute about payment of the occupation fee.
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