In this month’s case study, we look at a landlord’s claim for damage, said to have been caused during the tenancy. The evidence showed that the parties attempted to settle the dispute prior to adjudication, but no agreement was reached.
It is important to note that any offers or concessions made by the parties as part of negotiations to settle and that are rejected, will not be binding and will be disregarded for the purposes of adjudication. The landlord’s claim was therefore considered on the merits of the evidence presented
The Tenants Response
The tenants in response to the claim disputed the claims saying that the deterioration to the kitchen cabinets was down to fair wear and tear, the key was not broken, and that there had been many issues during the tenancy due to various leaks.
The Evidence
For an adjudicator to consider making an award to a landlord from a tenant’s deposit, it is necessary for the landlord, with whom the burden of proof rests, to establish with documentary evidence that there has been a breach by a tenant of a term within the tenancy agreement, that they can evidence that breach and that as a result of that breach the landlord has suffered a financial loss. It is essential also that any deposit use clause within the tenancy agreement, allows the deposit to be used for the claims at hand.
To support the landlord’s claim, a tenancy agreement and a rent statement were provided as evidence. A review of the deposit use clause contained within the tenancy agreement showed that the deposit could be used for damage, and it also contained an obligation on the part of the tenant to pay return the property in the same condition, less fair wear and tear, as at the start of the tenancy.
Kitchen Units
Two kitchen drawer fronts were detached at the end of the tenancy. The check-out report stated that further investigation needed to be carried out before liability could be determined.
As part of the evidence submission, the agent provided an email to the landlord which confirmed that a contractor had visited the property and spoken to the manufacturer about the drawers. The manufacturer advised that they were original doors and were probably 20/25 years old, and that the clips had been glued in place and had worn away which would be wear and tear, and that the other drawers looked as though it may happen to them soon. In these circumstances, the evidence supported the tenants’ position that the deterioration was due to wear and tear rather than damage or misuse. No award was made to the landlord.
Door Lock
The tenants submitted that the key was not broken when they left the property. However, the check-out report confirmed that the key was broken in the door lock.
There was no evidence that the tenants had provided any evidence to confirm that they reported any concerns about the functionality of the door lock during the tenancy which would be consistent with failure of the mechanism. In the circumstances, it was reasonable for the tenants to contribute towards the cost of remedial works, however, the tenants were not found to be responsible for the full cost of repair, as allowance must be made for fair wear and tear. No evidence had been submitted to confirm the age of the lock, and as such, a contributory award was made to the replacement of the lock.
Sealant
The tenants were not found to be responsible for the mould to the sealant. The check-out report indicated that there were leaks in the property during the tenancy and this was consistent with the agent’s email to the landlord which confirmed many reported issues with leaks that would have affected the sealant.
So, what are the key points here?
+ Read your tenancy agreement carefully before making any proposed deductions. Check that obligations exist on the part of the tenant, they can be evidenced as having been breached; that the deposit use clause allows for the proposed deductions, and lastly that a financial loss has been suffered.
+ Make sure that claims are supported with documentary evidence. For example, in this case, it was not appropriate to claim either for the repair to the kitchen units or replacement sealant, when the landlord’s own evidence confirmed deterioration to the cabinets due to fair wear and tear and to the sealant, due to leaks in the bathroom.
+ Tenants should report any issues or concerns they have at the property in a timely manner and in line with their obligations set out in the tenancy agreement.
If you are interested in further guidance relating to deposit disputes, visit the Help Centre at TDS to browse further guides.
Sandy Bastin, is head of adjudication services at Tenancy Deposit Scheme (TDS), the only not-for-profit tenancy deposit protection scheme.
The best one for a woke society is a house that is returned stinking of cigarettes or curry after 6 months, despite the TA forbidding this-I’ve taken the ceiling rose down to show the different paint colour and the invoice to show it was painted a year prior, but as expected I lost.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
I find the conclusions bizarre. How do you determine that a broken key has to be subjected to fair wear and tear? Without abuse, a key and lock mechanism would last forever!
Secondly, mould in sealant is never going to be due to leaks, but due to lack of proper ventilation and cleaning. Sealant is only ever where there is likely to be movement, or water (or both), so there being a leak is simply a red herring.
If I have a dispute again, I will choose the court route. In the single time I had one, my 1 year old sofa was damaged. I bought a new one and discounted it by 20% for fair wear and tear because the repair people I spoke to were looking to charge me more than the cost of a new sofa. I didn’t get written confirmation though as it seemed obvious/that if I was doubted, the adjudicator, if trying to be fair and impartial, could have made enquiries to confirm the same.
The adjudicator (MyDeposits) said I could have repaired it for £38 (but wasn’t helpful enough to tell me who had told her they’d do such a job for that sum)! Does anyone know of anyone in London who can attend to repair faux leather sofas for £38 (including materials) . I therefore concluded that there was no impartiality in the process, and reading this simply re-enforces this view.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
My thoughts exactly on the lock and the sealant!
I am always fascinated too as to what cleaners they believe will attend and use their own materials at less than minimum wage per hour. Then they want a full expansive breakdown on the invoice, so who do they think is paying for the contractor time to fully itemise a bill down to the last sheet of blue roll used? And they seems oblivious to how long it takes to clean things, especially ground in dirt, heavy limescale or a heavily carbonised oven!
I had one recently where they awarded the cleaning (shocked was an understatement) but not the parking charges to complete the clean as the only parking available was in a local car park due to the property having no direct parking itself and on road being double yellows. That really made me roll my eyes!
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
The deposit scheme seems good in theory but in practice it is not fit for purpose. If a landlord does manage to get any deposit back at all, they will have spent hours gaining evidence and quotes to do so. While a landlord is doing all this, all the tenant has to do just sit there and deny everything. A landlord may protect themselves somewhat by having proper inventory taken at the start and end of the tenancy but this is an extra cost.
Even fairly minor damage can cost more than a month’s rent especially if your property is one of the 50% that rent out for below average rent. Personally, those times I have rented out directly I don’t bother with a deposit as it’s not worth the extra hassle in my opinion.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
Is the landlord right to claim for damage said to be caused during the tenancy? – Yes, if it can be evidence to have happened during the tenancy.
That was easy.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
The TDS is a broken system in my experience:
1. Adjudicator opinion is final, no appeal.
2. Risk of Betterment is applied as an institutional bias against maintaining condition, which is literally wrong and evidences bias against property owners.
Tenants and Landlords should get a fair and impartial service. Doesn’t happen.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
As per usual in these examples, there is information missing. Information that any GOOD adjudicator would want to know:
The details of the actual claim!!!
When did the tenancy start?
Was there an independent inventory?
Were before and after photos taken, time and date stamped?
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
I think they had all of that info, but nevertheless found as they did. E.g. “ The tenants submitted that the key was not broken when they left the property. However, the check-out report confirmed that the key was broken in the door lock.”
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
I agree they probably did have that information and more, but if they want to present this as a “case study” then give us ALL the relevant facts.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
Ahh, I get you now. You are absolutely right!
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
The whole reason we have this system is because landlords couldn’t be trusted with large sums of money, so it seems a bit much to cry about it now. We only have to make laws for people who don’t know how to behave properly.
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
No one’s decrying the deposit system. The whole tenor of the comments here are about the patent unfairness of some adjudicators, and the two shouldn’t be conflated imho
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register
Round spherical objects, Jimbo. We used Independent Inventory Clerks (AIIC) for check out and in, complete with time and date stamped photos. We rarely had problems. When we did it was cleaning costs and the usual moan was, “We could have done that in half an hour”, to which the standard reply was, “Yes, but you didn’t, did you?”
You must be logged in to like or dislike this comments.
Click to login
Don't have an account? Click here to register