Most landlords, tenants and indeed agents want tenancy disputes to be resolved quickly in order to avoid the need for court.
In the TDS Insured Scheme, before submitting a ‘dispute’, it is important that the member firstly ensures that the ‘dispute’ is eligible for Alternative Dispute Resolution (ADR). In some cases, there may not be a dispute at all; notification of proposed deductions to a tenant does not automatically give rise to a dispute. There must be a clear proposal of deductions set out and a clear rejection from the tenant. It is worth noting here, that any deadline given to a tenant when setting out a deduction proposal, while persuasive, is not compulsory. Once a member is satisfied that there is a dispute they must then:
- Make reasonable efforts to help the parties, resolve the dispute within a reasonable time, acting fairly and professionally. If you are unable to promptly resolve the dispute, you must draw the attention of the parties to the ADR service available with TDS.
- You may continue with informal negotiations to resolve the dispute and/or submit a dispute to TDS within three months from the end date of the tenancy.
Before you submit a dispute to TDS, you must have made reasonable attempts to:
- Resolve the dispute.
- Ascertain (and try to agree with the other party) what is in dispute.
- Send a copy of any relevant documents to the other party, which they may not already have (e.g. check-out reports, quotations).
- Obtain confirmation from the tenant that they disagree with the proposed deductions.
It may be the case that you are not able to obtain a clear rejection of proposed claims from the tenant as you may not be able to contact a tenant at the end of a tenancy, or a tenant may not respond to you.
In such circumstances, there may not be any need to raise a dispute with TDS. A member may choose to use the absent tenant procedure to pay their landlord clients directly, without going through adjudication or the courts. The advantage of this for agent members is that it reduces the number of disputes that they lodge with TDS, which in turn affects membership fees. The advantage for landlords is that their claim against the deposit may be paid more quickly.
A copy of our guide ‘What if the tenant can’t be contacted at the end of the tenancy’, can be found here. This procedure is not compulsory and member agents use the absent tenant procedure at their own risk. Decisions taken under the procedure are not binding on the tenant, who could still apply for adjudication, within three months from the end date of the tenancy if the deposit is protected under TDS Insured. Tenants will usually have at least six years in which to claim their deposit back through the courts.
This article highlights the importance of ensuring you have an eligible dispute for submission to TDS. If you’re interested in further guidance relating to deposit disputes, visit the Information Lounge at TDS to browse further guides.
Sandy Bastin is head of dispute resolution at TDS.