Can landlords ask tenants to pay for professional cleaning services?
If you are a private landlord in Australia, be aware that asking tenants to get carpets professionally cleaned or fumigated may be illegal! In some states and territories, you can’t. And in others, it’s about what you do at the commencement of the tenancy that will determine if you can or can’t ask for professional cleaning of your private rental property.
Tenancy agreement and standard terms
Each state and territory has legislation (laws), including a current Residential Tenancies Act and Regulations. Tenancy agreements have attached to them enforceable standard terms or terms that the tenant and landlord must abide by. The standard terms are similar but contain slight differences between the states and territories.
Additional terms, other terms, special terms can be added to tenancy agreements if the relevant Residential Tenancies Act allows it. These additional terms have to be consistent with the standard terms in the tenancy agreement and meet the requirements of the legislation.
A quick review of the legislation in each state/territory highlighted that there isn’t a blanket rule to follow. Some states/territories focus on the state of the premises before the tenancy started. Others base the decision on whether pets were allowed, and some just don’t allow it.
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Find snapshots of each state/territory’s residential tenancies legislation summarised below. These should give you a quick overview of what landlords need to consider when asking for professional cleaning of their rental premises at the end of a tenancy.
Private landlords need to seek appropriate professional advice from the rental authority or legal representative to determine if any additional or special terms added to a tenancy agreement are legal in their state/territory.
ACT: only if carpets were professionally cleaned prior to the commencement of the lease
ACT’s tenancy agreement (version October 2018) includes term 64; “The tenant must leave the premises – (a) in substantially the same state of cleanliness, removing all the tenant’s belongings and any other goods brought onto the premises during the duration of the tenancy agreement; and (b) in substantially the same condition as the premises were in at the commencement of the tenancy agreement, fair wear and tear excepted.”
The Residential Tenancies ACT 1997 in Part 2, Division 2.1 Terms of agreement, Section 8 Standard residential tenancy terms identifies that the only terms allowed are as follows: the standard tenancy terms (Schedule 1); a fair clause for posted people; a break lease clause for fixed term agreements, and other terms that are consistent with the standard terms or terms endorsed by ACAT.
Part 2 Residential Tenancies Agreement, Division 2.1 Terms of agreement, Section 8 Standard residential tenancy terms extracted from the Residential Tenancies Act 1997, effective 21/6/2019, ACT.
The legislation in the ACT signals to landlords that, if carpets are professionally cleaned before the tenant moving in, this becomes a condition of the premises. Therefore, the ACT allows landlords to ask tenants to professionally clean carpets when they leave the premises at the end of the lease as long as it is verified that was the condition of the carpets before the tenant moved in.
ACT landlords must clearly document on the condition report at entry and attach evidence to prove the carpets were professionally cleaned.
NSW: professional cleaning is allowed when pets are involved
In NSW, The Residential Tenancies Act 2010 No 42 Section 19 Prohibited terms (2) clearly states that including terms “that the tenant must have the carpet professionally cleaned, or pay the cost of such cleaning, at the end of the tenancy” must not be included in a residential tenancy agreement.
However, Section 19 Prohibited Terms (3) states “a residential tenancy agreement may include a term that requires the carpet to be professionally cleaned or requires the tenant to pay the cost of such cleaning, at the end of the tenancy, if the landlord permits the tenant to keep an animal on the residential premises”.
The Standard form from 30 October 2016, Residential tenancy agreement provides additional terms for professional carpet cleaning in clause 45 because tenants have kept animals on the residential premises during the tenancy.
Clause 43-45 of the NSW Standard form from 30 October 2016 Residential Tenancy Agreement
NT: depends on the entry and exit condition reports
In the Northern Territory, the rental laws focus on the condition reports agreed to at entry and exit as critical in identifying the condition of the premises at the beginning and end of the lease.
The Residential Tenancies ACT 1999 (current as at 22/10/2019) allows landlords to claim bond money if the premises are left unreasonably dirty by the tenant. Section 48 identifies that premises are to be clean and suitable for habitation, qualifying their required state as “reasonably clean.” Section 22 warns landlords against including harsh or unconscionable terms that contravene the intention of the specified terms in the residential agreement.
While landlords in NT can include special terms, they will need to ensure the condition reports and additional terms in the agreement meet all legal requirements. With the use of the words “reasonably clean,” it may be hard to enforce professional carpet cleaning.
QLD: only if carpets were previously professionally cleaned and special terms
Queensland’s rental laws set out in the Residential Tenancies and Rooming Accommodation Act 2008 (current as at 15/10/2019) in Section 188, Tenant’s obligations generally, Clause 2, states that “The tenant must keep the premises and inclusions clean, having regard to their condition at the start of the tenancy.”
The Queensland General Tenancy Agreement (Form 18a) clause 37 outlines the expectations for the condition rental premises must be left in at the end of the tenancy. It states, “At the end of the tenancy, the tenant must leave the premises, as far as possible, in the same condition they were in at the start of the tenancy, fair wear and tear expected.”
Also, the Queensland legislation for residential tenancies Section 171 Supply of Goods and Services, explains that a landlord/agent cannot ask the tenant to use the services of a preferred supplier of goods or services that are nominated by the landlord/agent or is from the landlord/agent. This clause aims to prevent non-competitive practices for the financial gain of the landlord/agent directly or indirectly through kickbacks from preferred suppliers.
Clause 37 Condition premises must be left in – S 188 (4) from the General Tenancy Agreement (Form 18a), current as at 15/10/2019.
In the appeals case, Eising v Westgarth Realty Pty Ltd (2019) QCATA 120, heard by the Queensland Civil Administrative Tribunal (QCAT) it was decided that when a tenant agrees to special conditions for professional carpet cleaning and pest control at the end of the term, and the premises were professionally cleaned including pest control prior to the tenant entering the premises, that the tenant must legally pay for professional carpet cleaning and pest control. In this case, the agency had done everything right, ensuring special conditions were added to the lease specifying that carpets were to be cleaned professionally and the fumigation done by a professional. The tenant did have pets which lived in the premises. It’s an interesting appeal and provides good advice for Queensland landlords. The case highlighted how Section 171 has been misinterpreted by people in the past to mean you can’t ask tenants to hire professional services. But that was clearly dismissed by the court.
SA: professional cleaning is unenforceable
The rental laws in South Australia, the Residential Tenancies Act 1997 (current as at 22/10/2018) in Division 7 – Landlord’s obligation in regard to condition of the premises, explains that landlords have to ensure that the premises and ancillary property are in a reasonable state of cleanliness for the tenant to occupy at the beginning of the tenancy. While SA landlords also have access to condition reports to document the state of the premises before entry, the legislation does not mandate the premises are returned in the “same” condition.
During the lease, tenant’s are expected to keep the premises and any ancillary property in a reasonable state of cleanliness (Division 8, Section 69, 1) and at the end of the tenancy (Section 69, 3), the tenant must give the rental property “back to the landlord in a reasonable condition and in a reasonable state of cleanliness”. Therefore, asking for professional carpet cleaning does not seem to be enforceable in SA.
TAS: only if professional cleaning is term of the lease
The Residential Tenancy Act 1997 of Tasmania (current version 1 July 2019) states in Section 53 that “A tenant of residential premises is to keep the premises in a reasonable state of cleanliness having regard to the condition of the premises at the beginning of the tenancy.” And, that at the end of a tenancy, tenants are to leave the premises as nearly as possible in the same condition with provision for reasonable wear and tear. Therefore, it is again important for Tasmanian landlords, to ensure they use a condition report to correctly document the state of the premises before the tenants moved in.
Tasmania’s residential tenancies legislation addresses pets in Section 64B, Keeping of pets. It identifies that tenants can have pets with the landlord’s permission, and that this should be documented on the residential tenancy agreement. While Tasmanian landlords cannot charge a pet bond, they can include a term in the lease for the property to be fumigated at the end of the lease. Also, any damage caused by the pet to the property would mean the tenant has to repair and fix the damage to return the rental property and its grounds to the same condition it was at the beginning of the lease.
So, in Tasmania, if the carpets were professionally cleaned at the beginning of the lease and documented on the condition report, the landlord can expect the carpets to be professionally cleaned when the tenants leave. And if the tenants have a pet and it was documented in the lease, the landlord can also expect the property to be fumigated.
VIC: only if professional cleaning is term of the lease
In Victoria, Residential Tenancies Act 1997 (current as at 16/10/2019) states that at the commencement of the lease, “a landlord must ensure that on the day that it is agreed that the tenant is to enter into occupation, the rented premises are vacant and in a reasonably clean condition.” The Act does allow for additional terms to be included in the Residential tenancy agreement. Like other states, conditions apply to the use of the additional terms. For example, they must comply with the Unfair Contract Terms provisions in the Australian Consumer Law (Victoria).
So, while professional carpet cleaning is not required by the standard terms in Victoria’s rental laws, landlords could use an additional term to request the carpet is cleaned professionally.
WA: include a pet bond for fumigation at the end of the tenancy
Western Australia’s rental legislation offers landlords the security of a pet bond in addition to the four weeks bond payment (for rents less than $1,200 per week). Section 29 Security bonds, Division 1 – Rent and Security bonds, Residential Tenancies Act 1987 (current version as at 16 October 2019) states clause 1b(i) if the tenant is permitted to keep on the premises any pet capable of carrying parasites that can affect humans – a prescribed amount to meet the cost of any fumigation of the premises that may be required on the termination of the tenancy.” Form 1AA Residential Tenancy Agreement identifies the pet bond amount to be $260, and that the pet bond is to be used to meet costs of fumigation of the premises.
Additional terms may be included in the WA Residential Tenancy Agreement Form 1AA. There are conditions to using the additional terms, including they must not conflict with the standard terms used and they do not breach the provisions about unfair contract terms in the Fair Trading Act 2010. Clause 38 Form 1AA, requires the tenant when vacating the premises to “leave the residential premises as closely as possible in the same condition, fair wear and tar excepted, as at the commencement of the tenancy.”
Landlords in WA have the option to use additional terms to request professional carpet cleaning. It appears it would be conditional if the carpets were professionally cleaned at the commencement of the lease and documented on the condition report to establish that was the state of the premise.
Know the relevant laws before entering a tenancy agreement
As a private landlord, it is critical you know the laws that relate to the management of your rental property in the state or territory where it is located. The rental laws in each state/territory vary slightly, and the wording of how clean a premise has to be can make all the difference to whether you can ask for professional cleaning.
The importance of the condition report!
It’s quite clear that in all states and territories the entry and exit condition reports play a vital role in bond refunds and disputes. If as a landlord you have set a bond, then you must complete these two reports.
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The guidelines for implementing the condition reports and whether the tenant should be present when they are completed varies in each state. It is critical you follow the timelines involved to the letter. If the tenant doesn’t follow these rules, it may assist your claim if there was a bond dispute, especially if the tenant didn’t return the entry condition report immediately after moving into the rental premises.
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The information contained in RentEzy.com.au website is general information only and does not constitute legal, financial or compliance advice. As the federal and state laws relating to renting, managing rental properties, and real estate may have changed, we recommend you check with the relevant State or Territory government department. We also recommend that you obtain your own independent advice about matters relating to landlord obligations, tenancy legislation and supporting documents in relation to your responsibility as a private landlord.