Welcome to this month’s edition of The Deposit Diaries where the director of dispute resolution at TDS, Michael Morgan, discusses a recent decision by one of the adjudicators and sets out the reasoning behind the decision

In this case, the letting agent claimed a total of £957.63 for painting they claimed was required at the end of the tenancy. They relied on a clause in the tenancy agreement, which stated that the tenants were to deliver the property at the end of the tenancy in a “recently, professionally, homogenously painted condition”.

The evidence presented included a check-out report with the following comments: “Painting conditions are not reported because of verbal agreement between landlord and tenants. The decoration requirements were waived by the landlord at the start of the tenancy.”

The agent confirmed that there was a verbal agreement between the landlord and the tenant at the start of the tenancy, waiving the decoration requirements.

The agent explained that this agreement was made in good faith; however there was then a significant deterioration in the relationship between the landlord and the tenant. The agent claimed it was not fair that the landlord should not be able to claim for redecoration needed, as the tenants had not behaved in a tenant-like manner.

Although the agreement with the tenant was not documented in writing, it was evidenced in both the check-out report and the agent’s confirmation.

No evidence had been presented to show that this agreement was conditional on other factors.

Although the agent argued that the tenants had not behaved in a tenant-like manner, the claim and the evidence presented did not explain what this behaviour amounted to, nor that it had resulted in a financial loss to the landlord. No award was made.

Conclusion

This case highlights the importance of recording, in writing, any agreements made between the parties or changes that have been negotiated during the term of the tenancy. A well-written record of the agreement reached in this case may have led to a different conclusion.

The case also highlights the importance of thinking through claims made against the deposit and the logic and reasoning behind them. Using tools like the TDS Deposit Deductions Template will help to do this.

Lastly, it’s important to take a step back and think about the wording of clauses in tenancy agreements.

Arguably the clause in this case did not require the tenant to redecorate at tenancy end; solely that it was painted “recently”. It’s not clear how recent this must be – and much less clear what a “homogenously painted condition” means!

* The Tenancy Deposit Scheme (TDS) is the only not-for-profit government approved scheme for the protection of tenancy deposits; we offer both insured and custodial protection. We also provide fair adjudication for disputes that arise over the tenancy deposits that we protect. TDS can only comment on the process for our scheme, other deposit protection schemes may have a different process/require different steps.