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Monday, June 14, 2010

Tips on Tenancy Deposit Disputes

52 weekly tips on how to win with tenancy deposit disputes.

When I worked as an adjudicator, deciding deposit dispute cases for one of the deposit protection schemes, I was constantly surprised at the basic errors made by landlords in the presentation of their claims. The statistics show that landlords lose a disproportionate number of deposit disputes and in my experience they often lose because of simple procedural and evidential errors, which leave the adjudicators no choice but to award the deposit to the tenant.

I have made it my mission to reverse the fortunes of landlords participating in deposit protection disputes and to that end I am offering 52 short tips for landlords on winning disputes, which will be posted here, one per week for a year. Inevitably, some of the tips are pretty basic and may seem obvious to you, but bear in mind that all of them relate to actual mistakes commonly made by real landlords or letting agents. The posts are not intended to amount to a comprehensive guide on how to make a successful claim, but should hopefully give an indication of some of the pitfalls to avoid.

Tip 1: Submit a copy of the Tenancy Agreement

If you are participating in a dispute, your scheme will have asked you to provide a copy of the tenancy agreement at some stage, if not on several occasions. Failure to submit a copy with your evidence will probably result in your claim being dismissed for lack of evidence. Without a valid agreement, the adjudicator cannot be certain that the tenant intended to enter into a legally binding agreement with you and, consequently, your claim is likely to be rejected. In most cases, without a tenancy agreement your case won’t even make it to the adjudicator, it will be filtered out automatically. All you will receive is a standard letter informing you that you have lost the dispute and that the money has already been transferred to the tenant.
When you do send in your tenancy agreement, make sure that it relates to the correct property and is signed by both parties. The adjudicator will, as a matter of course, check technicalities like dates, addresses and signatures. A serious discrepancy is likely to result in failure, so make sure you send in the right paperwork the first time.

If you didn’t enter into a written agreement with your tenant and you have a serious dispute, you may wish to consider using the court system to resolve the matter. There is provision in law for the court to enforce a verbal contract or for a contract to be inferred from the actions of the parties. It is not advisable to expect an adjudicator to do the same.

Tom Derrett is the Principal of ADR Solution & an adjudication expert on the Tenancy Deposit Scheme.

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Anonymous said...

I will watch this keenly. Just lost a case with TDS where they only let us keep £200 for repainting the interior of a 4 bedroom 3 storey house (twice)after the tenant's children had drawn, scribbled and painted over every wall in the house.!! I would love to know a painter that would work for that price. I bet they couldn't find one.
Disgruntled, Derby.

Anonymous said...

Anonymous:- Did you have a professional inventory drafted with photos. This would have been signed by the Tenants at the start of the tenancy. Without an inventory you dont have a leg to stand on. If you let via an Agent they should have advised you of this however if you let privately then this is a rsik you took by not using an agent.

Donna said...

Re: comment made at 10.13am about letting privately, I took over the management of my properties after I quickly learned the level of service I could expect from letting agents. I use my own inventories, photographs and inspection reports. Do you have to use an agent to avoid being at risk?

The Editor said...

Hi Donna, absolutely not. As long as you carry out your inventory correctly and can establish that any damage was caused by the tenant during their tenancy. Remember that there is always the issue of 'fair ware & tear' in coming to a view on the damage. Have a look at the recent article we did on an arbitrators view on assessing tenancy deposit disputes. This gives quite an interesting perspective on how the tenancy deposit arbitrator approaches any claim. Remember their starting point is that the deposit is the tenants unless you as the landlord can prove that any amount of it should be witheld.

Tom Derrett said...

It’s very difficult to comment on specific cases without knowing the details, but it is safe to say that letting through an agent will not guarantee success in deposit disputes. If you are thinking of letting through an agent, it is worthwhile checking what procedures they have in place to protect you in the event of a dispute, for example, do they commission inventories of an appropriate standard and have they got access to someone who can properly advise you on a dispute?

How much an adjudicator will award for specific items of damage is governed by industry guidelines on fair wear and tear, along with how you present your case. I would always advise that you get expert advice before submitting your claim, to understand how your award will be calculated and how draft your claim to maximise your award.

You are welcome to contact me directly if you wish to discuss the case in more detail.

Anonymous said...

Hi, I didn't have a professional inventory drawn up at the beginning of the tenancy (very stupid I know). I have 4 boys living in the property over 2 years and they totally damaged you know what I can do? For example, the dishwasher was in good working order when they moved in but they used washing up liquid and short-circuited the electrics, there was mold growing in the bathroom because it wasn’t cleaned at all. There are also some damages which they have accepted responsibility for (verbally) like a broken door. It was a managed property but the estate agents are rubbish and do not offer any help or advice! Your advice would be much appreciated.

Tom Derrett said...

Hi Anon,

That sounds very distressing. I am very happy to give you advice on your specific situation, both on how to proceed and how to avoid this happening again.

If you click on my name, it should take you to my website, where you will find my telephone number and my email address, or a form to have me call you back.

Anonymous said...

Hi, I would consider taking your letting agent to task. Did you sign up with them and have them make you aware of what they are responsible for doing whilst managing your property. For example, did they do Inspections and report back to you? Did they at any time remind and pursue tenants responsibilities with them? Did they ever report any damage to you in keeping with informing you of what inspections they may have done as part of their job to manage your property? Find out if they are liable for mis-management practices. Ask them for proof of inspections during the management plus any comments or recommendations they would have made to the tenants or yourself. Seek legal advice if necessary. Deposit Protection Schemes unfortunately will favour the tenant if the landlord hasn't done their job properly as I found out to my deteriment. We too were using an agent who were useless. Good luck.

Anonymous said...

The law clearly states the deposit money belongs to the tenant and at their end of their stay they are entitled to get it back, provided they have honoured the terms of their tenancy agreement. Of course two sides need to have o copy of this agreement that shoul be notorized! If the deposit is protected by the Tenancy Deposit Scheme, the dispute can be resolved by a professional, impartial adjudicator.