Here is a question to the blog clinic from Patty (not her real name) who is a landlord:
After a deposit was lodged with the TDS, and the correct paperwork served, the exiting tenants put in a claim.
The deposit was £620.
The case went to adjudication, and it was ruled that all of deposit should be returned to tenants.
This happened even though the landlord had submitted evidence that all of the deposit had been used to clear up bills left by the tenant. There was also a cleaning bill, from a professional company who had to clean the property from top to bottom, after the tenants left it in a dreadful state.
All monies spent were supported by invoices.
There was an electricity bill of over £200, cleaning bill of £100, sceptic tank emptying of around £50, and the list goes on.Should a landlord now have to pay the daily living costs left unpaid by tenants. Surely this is what a deposit is for – to prevent the Landlord being left out of pocket ?
I understand from the TDS, that the decision of the adjudicator cannot be reversed – so where does this leave the Landlord ?
A complaint has gone in to the TDS, in line with their own prescribed procedure. I await their findings.
They continue to send requests for the £620 to be paid to them for return to the tenants and they now threaten legal action on the Landlord if the money is not sent.
As the landlord – I am now not only out of pocket, but face legal action by the TDS, – I would rather let this one get taken to court than have to unfairly pay the bills left tenants.
Are then any cases like this – where unfair adjudication has ben addressed by the courts ? Or indeed cases where evidence supplied has been totally ignored ?
You don’t say why TDS found for the tenants.
Adjudication is a legal process and has to follow certain rules. The underlying rule is that the deposit is the tenant’s money and so the landlord has to prove ‘on the balance of probability’ that he is legally entitled to make a deduction before the adjudicator will rule in his favour.
There are always two elements to a claim:
- Liability and
- Quantum
Liability
This is about whether the tenant is liable for the item claimed by the landlord.
A common reason why tenants are not found liable for claims is because the tenancy agreement does not include a clause authorising the landlord to make deductions from the deposits.
Or the clause in the tenancy agreement may not authorise the particular item the landlord is claiming for.
Quantum
This is about whether the actual sum charged by the landlord is reasonable.
So if a carpet was soiled, an adjudicator may consider that a claim for replacing the whole carpet is unreasonable if it could have been cleaned.
Or, if replacement is allowable, the cost may be considered too high (for example if a tatty old carpet is replaced by a high quality persian rug).
Or there may be an element of ‘betterment’ if an old carpet is replaced by a new one, and awards are often reduced to take account of the expected usable life of the old carpet.
Procedure
Finally there is the question of whether you followed the proper procedure in submitting your evidence.
For example if it was submitted too late it will not be taken into account.
Also – you say you have invoices. Presumably copies of these were actually submitted to the adjudicator?
Conclusion
Although the decisions made by adjudicators often seem unfair, there is almost always a legal reason why they came to the decision that they did.
This is why it is important that landlords take care when submitting their evidence.
If the adjudicator has found for the tenant and you fail to put them in funds to refund the money to the tenant, they are legally entitled to recoup this money from you. So you are unlikely to be able to defend their claim successfully.
What experience have other readers had of this sort of situation?
Landlords may find >> this book helpful when preparing their case for adjudication.
Chris@TDS says
Tessa has summed up well the many different issues which could be at stake here.
It could be that your evidence was not sufficient – as already pointed out it is the tenant’s money and it is in the first instance up to the landlord to provide evidence to justify withholding money. You may have provided invoices but was there evidence to show that the tenant left the property in a worse condition than they found it? Did the invoice state what you were being charged for? And did the tenancy agreement actually say what the deposit can be used for? Issues specific to the property such as a septic tank won’t be are commonly missed,and some tenancy agreements don’t even include any uses of a deposit. An adjudicator only has the power to make awards based on what you agreed to use the deposit for in the tenancy agreement; beyond this you need to go to court.
Disputes will only be revisited by the scheme if a piece of the evidence has been overlooked in the original adjudication, and again your only other option is to go to court, and the court does not usually have any reason to overrule the adjudication.
Jamie says
“Surely this is what a deposit is for – to prevent the Landlord being left out of pocket?”
Not necessarily. It totally depends what it says in your tenancy agreement, more specifically, under what circumstances you can make deductions from the deposit.
There is no mention of an inventory or check in so I suspect you may not have one. Without it you cannot prove to the adjudicator the inital condition of the property and that the cleaning was necessary.
Before your next tenancy I think you need to catch up with recent changes in the industry, or use a good agent.
Ant says
Is the tenant responsible for the emptying of a septic tank? I would have thought that would be a landlord responsibility but then again I work in the city not the sticks.
Letting Agent Edinburgh says
If you feel the decision is unfair you should be able to appeal the decision with the adjudicator. Have you tried to appeal?
Industry Observer says
A few points if I may
First why would any utility bill left unpaid be Landlord liability if the utility account was in tenant name?
Second I agree with the comments if that bad your dispute preparartion and submission must have been defective and not strong enough
Finally why are Mydeposits asking you to pay the £620 in now well after the event when the first thing that happens when a dispute is raised is the disputed amount has to be paid into the Scheme?
Adam Hosker says
You should have included sewage costs in rent if you are responsible for sorting that out; as its not a tenancy related bill otherwise.
Electricity Bill; again is not yours to decide to pay. This is a contract between the tenant and a 3rd party company!
If tenant does not pay electricity, nothing to do with you. Cleaning costs are subjective and “wear and tear” is not a deductible expense.