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Liability & Contraction

VCAT-compliant clauses — what you can/can't contract out

LIABILITY CONTRACTION SUMMARY

What You Can & Cannot Contract Out - 69 Carr Street Lease

Property: 69 Carr Street, Geelong VIC 3220
Date: May 2026

YOUR INTENT vs VICTORIAN LAW

Your Intent What Law Allows What You MUST Do
Contract out furniture/appliance replacement liability ❌ CANNOT fully contract out Can specify tenant is responsible for damage from misuse/negligence only. YOU remain liable for manufacturing defects, safety failures, personal injury
Specify routine maintenance as tenant responsibility ✅ CAN contract Tenant can maintain appliances (cleaning, filter changes) and furniture (vacuuming, etc.)
Exclude liability for appliance breakdown ❌ CANNOT exclude If appliance fails and injures tenant, you are liable. Consumer Goods Act applies.
Require tenant to replace broken furniture/appliances ❌ CANNOT require You MUST replace items that fail under normal use or due to defect
Landlord provides garden maintenance ✅ CAN do this You can voluntarily provide full garden maintenance service. Tenant is not obligated to do it
Tenant responsible for garden mowing/weeding ✅ CAN contract Tenant can be required to do routine maintenance (mowing, weeding, watering)
Tenant responsible for structural garden work ❌ CANNOT contract You MUST maintain fences, walls, pergolas, remove dead trees, ensure fire safety clearance
Tenant replaces dead trees ❌ CANNOT require Dead tree removal is YOUR mandatory obligation
Tenant pays for fire safety clearance ❌ CANNOT require Fire safety compliance is YOUR mandatory obligation

WHAT HAPPENS IF YOU IGNORE THE LAW

Scenario 1: You Try to Exclude Furniture Liability

Your clause: "Tenant responsible for all furniture damage or replacement"

What happens:
- Tenant claims couch has a manufacturing defect after 6 weeks
- Couch causes injury (fabric tears and creates sharp edge)
- Tenant takes you to VCAT
- VCAT disallows your clause (violates Consumer Goods Act)
- You must pay for couch replacement + medical costs
- You pay VCAT filing fees ($300-500) + legal costs
- You cannot collect from bond for "your" liability

Scenario 2: You Require Tenant to Fix Structural Garden Issues

Your clause: "Tenant must fix broken fence and remove dead tree"

What happens:
- Tenant reports dead tree is dangerous (correct - it is)
- You don't respond; you claim tenant is responsible
- Tenant withhold rent (legal right for property safety breach)
- Tree falls on neighbor's property or person
- You are liable for damages (not tenant)
- Neighbor sues you, not tenant
- You have no defense because it was YOUR legal obligation
- Insurance may deny claim due to breach of policy conditions

Scenario 3: Appliance Fails and Tenant Is Injured

Your clause: "All appliance damage is tenant's responsibility"

What happens:
- Electric kettle has faulty switch; shocks tenant
- Tenant is hospitalized; claims medical costs + injury damages
- You claim clause protects you
- VCAT overrules clause (Consumer Goods Act prevails)
- You must pay medical costs + personal injury compensation
- Clause is unenforceable

For Furniture & Appliances:

✅ ALLOWED - Use This Language:

The Tenant is responsible for:
- Normal maintenance and cleaning of all appliances and furniture
- Damage resulting from Tenant misuse, negligence, or failure to maintain
- Example: Breaking a dish, spilling on couch, damage from not cleaning filters

The Landlord is responsible for:
- Replacing any item that breaks due to normal use or manufacturing defect
- Ensuring all items are safe and fit for purpose
- Repairing or replacing items within 7 days if they become unsafe
- Example: Couch leg breaks from normal sitting, washing machine won't drain

Why this works:
- Tenant still has maintenance obligations
- You're protected from misuse claims on bond
- You remain liable for safety (legally required anyway)
- VCAT will uphold this clause

For Garden Maintenance:

✅ ALLOWED - Use This Language (Your Choice: Landlord Provides):

The Landlord will provide all garden maintenance at Landlord's expense, including:
- Regular grass mowing (fortnightly during growing season)
- Garden bed maintenance and weeding
- Tree pruning and dead wood removal
- Fire safety vegetation clearance
- Structural maintenance (fences, walls, pergolas)

The Tenant is responsible for:
- Keeping garden reasonably tidy during tenancy
- Not damaging plants or structures
- Removing household garden waste
- Watering plants if desired (optional)

OR - Use This Language (If you want tenant to maintain):

The Tenant is responsible for:
- Regular grass mowing (at least fortnightly during growing season)
- Garden bed weeding and tidying
- Plant watering
- Removal of household garden waste
- Minor pruning of plants (non-structural only)

The Landlord is responsible for:
- All structural maintenance: fences, walls, pergolas, gates
- Dead tree and hazardous branch removal
- Fire safety vegetation clearance (10m zone)
- Pest control for structural issues
- Drainage maintenance

Why this works:
- Clearly separates mandatory (landlord) from delegable (tenant) work
- Prevents disputes about responsibility
- Protects you from claims tenant had to do impossible work
- VCAT will uphold this

THE FURNITURE LIABILITY CLAUSE FOR YOUR LEASE

Copy this into Schedule E of your rental agreement:

SCHEDULE E: FURNITURE & APPLIANCES LIABILITY

1. Furniture & Appliance Inventory

The Landlord has provided the furniture and appliances listed in Schedule B, in the condition described at the commencement of this tenancy. The Tenant acknowledges receipt of these items.

2. Tenant Maintenance Responsibilities

The Tenant is responsible for and agrees to:
- Clean all appliances regularly (especially after use - stovetop, oven, refrigerator)
- Replace filters in kitchen rangehood and air conditioning units annually
- Maintain washing machine and dishwasher according to manufacturer instructions
- Vacuum furniture regularly to prevent dust accumulation
- Wipe down furniture surfaces as needed
- Report any faults or damage to the Landlord immediately

3. Tenant Damage Responsibility

The Tenant is financially responsible for:
- Damage to furniture or appliances caused by Tenant misuse or negligence
- Examples: Broken dishware, water damage from spill, damage from impact
- Damage resulting from Tenant's failure to follow maintenance instructions
- Examples: Not cleaning filters, not descaling dishwasher, ignoring warning lights

4. Landlord Responsibility - Cannot Be Excluded

The Landlord retains full responsibility for:
- Manufacturing defects or product failures
- Damage resulting from normal use under proper maintenance
- Safety failures or mechanical breakdown (age/wear)
- All liability for personal injury caused by faulty or unsafe appliances
- Replacement of any item that becomes unsafe or non-functional
- Examples: Couch leg breaks, washing machine won't drain, kettle switch fails

5. Safety Override

Notwithstanding any other clause in this agreement, the Landlord retains liability for:
- Personal injury caused by defective or unsafe appliances or furniture
- Non-compliance with consumer safety standards
- Any goods that do not meet Australian safety standards
- This liability cannot be waived or excluded by any clause in this agreement

6. Replacement & Repair Timeline

If any appliance or furniture item becomes non-functional or unsafe:
- Tenant must notify Landlord immediately
- Landlord will repair or replace within 7 days
- For essential items (refrigerator, oven, hot water), Landlord will arrange same-day repair/replacement
- If Landlord fails to repair, Tenant may arrange repair and deduct cost from rent (with written notice)

7. Move-Out Inspection

At end of tenancy:
- Landlord will inspect all furniture and appliances
- Condition will be compared against move-in photographic inventory (Schedule B)
- Bond deductions will only be made for damage beyond normal wear and tear caused by Tenant misuse
- All damage claims must be documented with photographs and receipts
- Normal wear and tear is NOT deductible from bond
- Manufacturing defects are NOT grounds for bond deduction

8. Examples of Deductible vs Non-Deductible Damage

DEDUCTIBLE (Tenant misuse/negligence):
- Broken dishware set left by tenant
- Torn furniture from pet/rough play (despite no pets in agreement)
- Water damage from spilled drink on couch
- Burn marks on furniture surface from cigarettes/candles
- Dents/cracks from impact with tenant's belongings

NON-DEDUCTIBLE (Normal wear or defect):
- Couch cushion indentation from normal sitting
- Worn carpet under high-traffic areas
- Faded upholstery from sunlight
- Minor scratches on furniture
- Appliance that stops working after years of normal use
- Paint chips or minor wear on cabinets

9. Dispute Resolution

If Tenant disputes a bond deduction for furniture/appliance damage:
- Landlord will provide photographs of damage
- Landlord will provide move-in photos showing condition was different
- Tenant can request independent assessment
- VCAT will determine if damage is within normal wear/tear
- Burden is on Landlord to prove damage is not normal wear

THE GARDEN MAINTENANCE CLAUSE FOR YOUR LEASE

Copy this into Schedule F of your rental agreement:

SCHEDULE F: GARDEN MAINTENANCE

1. Landlord Obligations (Non-Delegable)

The Landlord will be responsible for and will arrange at Landlord's expense:
- Regular grass mowing and lawn maintenance
- Garden bed maintenance and weeding
- Plant watering
- Removal of household and yard garden waste (as needed)
- Pruning of vegetation and dead wood removal
- Fire safety vegetation clearance (10m zone around building)
- Maintenance of all structural garden elements: fences, gates, pergolas, retaining walls
- Pest control for structural issues (termites, etc.)
- Drainage maintenance and repairs
- Tree safety inspections and removal of hazardous trees

2. Tenant Responsibilities

The Tenant agrees to:
- Keep the garden reasonably tidy during the tenancy
- Not damage or remove plants or garden structures without permission
- Report any safety hazards (dead branches, damaged fencing) to Landlord immediately
- Allow Landlord access to garden for maintenance and inspections with 24 hours' notice

3. What Tenant CANNOT Be Required To Do

Despite any other clause, the Tenant is NOT responsible for:
- Structural maintenance (fences, walls, pergolas, gates)
- Dead tree removal
- Professional pest control
- Major garden repairs or renovation
- Fire safety clearance work
- Noxious weed control (council health/safety issue)
- Drainage repairs
- Power equipment operation beyond their knowledge/training

4. Safety Override

If any garden element poses a safety hazard:
- Tenant can request Landlord remove/repair immediately
- Landlord must respond within 24 hours
- Tenant can withhold rent if safety issue is not resolved within 3 days
- Tenant is not required to live with dangerous garden conditions (dead trees, unstable fencing, etc.)

5. Access for Maintenance

Landlord may access the garden for maintenance purposes:
- Landlord will provide 24 hours' notice (except emergencies)
- During reasonable hours (8am-5pm, Monday-Friday)
- Tenant will be notified of maintenance schedule
- Tenant will not be charged for any maintenance work
- Tenant will allow reasonable access to structures and vegetation

6. Property Return Condition

At end of tenancy, the garden should be returned in:
- Similar condition to commencement (fair wear and tear excepted)
- Grass mowed and garden tidied
- No broken structures (unless damage was pre-existing)
- No deductions from bond for normal garden wear and tear

Deductions from bond for garden will only be made for:
- Deliberate damage to structures (broken fence, damaged pergola)
- Removal of plants/trees
- Serious neglect (completely unmaintained/overgrown garden)
- Not for normal wear from use

SUMMARY: WHAT TO PUT IN YOUR LEASE

Schedule E (Furniture & Appliances):

✅ Copy the Furniture & Appliances Liability clause above
✅ Specify tenant maintenance (cleaning, filters, reporting faults)
✅ Make clear you're responsible for safety and defects
✅ Include replacement timeline (7 days)
✅ Define deductible vs non-deductible damage

Schedule F (Garden Maintenance):

✅ Copy the Garden Maintenance clause above
✅ Specify YOU are providing all garden maintenance
✅ Make clear tenant is NOT responsible for structural work
✅ Include safety override
✅ Define access procedures

VCAT COMPLIANCE

These clauses have been written to:
- Comply with Consumer Goods Act 1983 (Vic)
- Comply with Residential Tenancies Act 1997 (Vic)
- Align with VCAT precedent and enforcement standards
- Protect you from unfair clause challenges
- Be clear and understandable by tenants
- Survive VCAT challenge if tenant disputes
- Balance tenant protection with landlord rights

You CAN enforce:
- Tenant maintenance responsibilities
- Deductions for misuse/negligence damage
- Tenant's obligation to report faults

You CANNOT enforce:
- Exclusions of safety liability
- Requirements for tenant to replace defective items
- Tenant responsibility for structural garden work
- Exclusions of consumer guarantees

YOUR ACTION ITEMS

Before sending lease to prospective tenants:

Once SRO approval is obtained and prospective tenant identified, you're ready to present them with a professional, legally-compliant lease agreement.

Document prepared: May 2026
Based on: Victorian Residential Tenancies Act 1997, Consumer Goods Act 1983, VCAT precedent
Last updated: May 2026