counterclaim requirement
📖 What is counterclaim requirement? Meaning and definition
When a tenant applies to Tenancy Services for the refund of their bond, and the landlord believes they are owed money from that bond (for example, for damages), the landlord cannot simply state their claim at the hearing. They are legally required to file a formal application detailing their claim, which is known as a counterclaim.
This requirement is set out in Section 22B(2) of the Residential Tenancies Act 1986. If a landlord fails to file this counterclaim, even if they have a valid reason to claim against the bond, the Tenancy Tribunal will order the full bond amount to be refunded to the tenant.
In practice, this means that the Tenancy Tribunal will not consider a landlord's claim against the bond if it has not been properly submitted as a counterclaim. The cases show that even if the landlord attends the hearing and has a claim, the bond will be fully refunded to the tenant if the counterclaim was not filed. This highlights the importance of following the correct legal procedure for landlords seeking payment from a bond.
📋 Requirements
- A tenant has applied for a refund of their bond.
- The landlord seeks payment from the bond.
- The landlord must file an application setting out the details of their counterclaim.
📝 Procedure
- Tenant applies for a refund of the bond.
- Landlord, if seeking payment from the bond, must file an application detailing their counterclaim with Tenancy Services.
- If the landlord does not file a counterclaim, the bond is refunded in full to the tenant by order of the Tenancy Tribunal.
💡 Examples
- A tenant applied for their $1,580 bond back, and even though the landlord had a claim against it, the full amount was returned to the tenant because the landlord did not file a counterclaim.
- The Tenancy Tribunal ordered a $500 bond to be paid immediately to the tenant after the landlord failed to file a counterclaim for damages to a wall.
- A landlord had a claim against a $3,580 bond, but because they did not file a counterclaim with Tenancy Services, the entire bond was paid to the tenant.
- Even when both parties attended the hearing, the bond was fully refunded to the tenant because the landlord had not submitted the necessary counterclaim application.
📚 Legal basis
- Residential Tenancies Act 1986
❓ Frequently asked questions
What happens if a landlord doesn't file a counterclaim?
If a landlord does not file a counterclaim, the Tenancy Tribunal will order the full bond amount to be refunded to the tenant, even if the landlord believes they have a valid claim against it.
Is the counterclaim requirement only for landlords?
Yes, based on the provided cases, the counterclaim requirement specifically applies to landlords who seek payment from a bond when a tenant has applied for its refund.
Where does it say landlords must file a counterclaim?
This requirement is stated in Section 22B(2) of the Residential Tenancies Act 1986, as cited in the Tenancy Tribunal decisions.
Can a landlord make a claim against the bond at the hearing if they haven't filed a counterclaim?
No, the Tenancy Tribunal will not consider a landlord's claim against the bond if they have not formally filed an application setting out the details of their counterclaim with Tenancy Services.
Does it matter if the landlord attends the hearing?
Even if the landlord attends the hearing, as shown in some cases, if they have not filed a counterclaim, the bond will still be refunded in full to the tenant.
What if the bond was not lodged with Tenancy Services?
One case mentioned a tenant advising the bond was not lodged with the Tenancy Services and they never received a receipt. In that specific instance, the landlord was ordered to reimburse the bond amount directly to the tenant, in addition to the lack of counterclaim leading to the full refund.