Wow Thanks Emily for looking into this matter more thoroughly and producing the effective life document--That will become very useful.

Interesting question in all of this. Is there any point trying to seek compensation for an item if it has gone past its effective life as set out by the ATO. I have pointed out the ATO standing on the matter to the owner but she still wants to seek compensation at the moment. I have suggested that we put this to the tenant for a partial compensation. I have also told the owner that I'm not sure what would happen if the tenant refuses and she forces the matter and wants to take it to court. I'm not sure how the courts would rule on this. Would they ask the question how old is the carpet? Would they know the ATO view on effective life and just dismiss the matter or would they rule in her favour? I'm not sure how a magistrate would handle this.

Margaret www.dmrealty.com.au

PS Oh yes this is above headache 101 !!! Where to next and how do you explain to an owner that they just may have to wear this situation?

Also on the above matter the owner is looking at her insurance policies both landlord protection insurance and building/contents insurance to see if a claim could be made that way.

I wonder what an insurance company would say on the matter. They would more than likely have ready access to the ATO stance on effective life so I wonder if there is any point going down this path either.

Margaret www.dmrealty.com.au

Margaret an insurance company will look at this matter completely differently and in line with the policy the landlord holds.  This also varies from company to company so we will have to wait to hear what the advice is from the insurance company on this one.

Regarding still making a claim, based on the evidence the condition report provides, the tenants have damaged the carpet.  On that basis I would still try and negotiate some compensation for the landlord, especially considering this is her instruction.

Again, if the instruction is to go to tribunal then that is what you need to do but in my experience, a member sitting at tribunal will depreciate the item for you claiming damage for and in the case of the 20 year old carpet, it's past it's "effective life."

Whilst at Tribunal recently, we noted that the member kept referring to what appeared to be a legal book on all things tenancy.  I am pleased to say we have been able to obtain a copy for ourselves and it is FABULOUS.  Its called 'Residential Tenancies Law and Practice New South Wales' and is 400+ pages of helpful information on recent tribunal cases, interpretation of the tenancy act and gives rulings to help out in situations such as these.  As a property manager that has been in the industry now for nearly 12 years, I wish I had access to it long before now.  It is worth every cent!! I had a case only last week and was able to get compensation on smoked stained walls (that were painted well oer 15 years) but had been badly stained. I had a very difficult landlord but was able to negotiate with the tenant a 50% share of repainting the home.  All because of my new "bible" !!!

Louise that sounds absolutely wonderful- Where did you get the book from? I wonder if they have one that relates to QLD law. Has anyone else seen anything like this? It would be so useful.

Margaret www.dmrealty.com.au

Louise - you can't tease us like that.  More details please.... 

Hi guys, we got our copy from the REI.  I am currently also studying for my Conveyancing Degree & found it on my textbook website, so if you know anyone that goes to University you could get it from there as well.  It is seriously worth every cent - I think it was around $120? And for the actual member to be referring to it, it is obviously the go to book!!  It has give me so much more confidence in Tribunal as well because I know that the research I have conducted is the same as the members, likewise with landlords, I can just photocopy the page that referrs to their particular situation and send it to them to back up what I am saying..Its sooo good !! :):):)

What if the carpet or other items is past its effective life according to ATO, but was still in excellent or very good condition the start of the tenancy?

Hi Gary, In my experience, if the damage occured through the normal use of the property its very difficult to get anything other than cleaning as compensation.  However if the damage occured because of tenant neglect then you can usually get a bit more, in my case the damage to the walls was because of excessive smoking inside.  I could then prove that this is beyond fair wear & tear and that the tenants did not do what a 'reasonable person' would have done to try to avoid damage occuring which meant that my landlord was entitled to 'some compensation'.

With our situation the stains are not from normal wear and tear--There were red cruiser bottles on the carpet in the baedroom. Some of the cuuiser spilt and have caused red stains. In another room there was makeup on the carpet that has stained. In the lounge room there was a large patch of engine oil that was stepped into and so there were engine oil foot steps on the carpet. These are not reasonable actions and this is why we believe that some compensation should be claimed eventhough the effective life of the carpet is well and truely passsed. The original entry condition report state that there were no stains on the agent & tenant side but now there are stains in every room.

Margaret www.dmrealty.com.au

To have a book with the answers to some of the 'curley ones' would be fantastic. Does anyone know if there is one available in SA?