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  • Deposit Protection

    How to think like an Adjudicator in disputes



    We've reached the conclusion of "Lifecycle of a Deposit" Week, powered by TDS, with content supplied by the TDS team.  Over the past week, we have been charting the lifecycle of a tenant's deposit - from pre-tenancy to end of tenancy.

    In the final instalment, Michael Morgan, Tenancy Deposit Scheme’s (TDS) Director of Dispute Resolution, outlines what an adjudicator looks for in deposit disputes and how evidence should be presented. 

    If a tenant and landlord/agent can’t reach an agreement on deductions from the deposit at the end of the tenancy, either party can ask TDS to step in to provide a fair and impartial adjudication decision.

    We have a highly trained team of expert adjudicators who make awards on deposits based purely on the evidence presented to them. For that reason, it’s important to be able to set out your case logically and thoroughly. The deposit is ultimately the tenant’s money, so the burden of proof is on landlords and agents to justify their claimed deductions.

    When an adjudicator considers a case, they need to know what the claim is about and how much is being claimed. They find this information in the Dispute Application and the Dispute Response that the landlord and the tenant complete online.

    Disputes should be broken down into categories including cleaning, damage, redecoration, gardening, rent arrears or other.

    When reviewing any case, TDS’ adjudicators will usually ask themselves these questions, in the following order, for each category of the claim:

    • what is this part of the claim for? (e.g. cleaning, redecoration, etc.);
    • what are the tenant’s obligations? (i.e. in the tenancy agreement and under the general law);
    • did the tenant fail to meet those obligations? (evidence from check-ins/inventories and check-out reports, rent statements, etc.)
    • if so, what loss did this cause to the landlord or agent, allowing for fair wear and tear where applicable?
    • what evidence has the landlord or agent produced to quantify their loss? (invoices, quotes, etc.).

    Landlords and agents should keep criteria in their minds when making claims, but should also ask themselves the following questions

    1. Can TDS deal with this claim?

    A landlord or agent can only claim against a deposit for an incurred loss, provided this is set out in the deposit-use clause of the tenancy agreement (covered in Monday’s edition of this series). It isn’t a cost that has to have been spent, as many will wait to recover money before investing in having work done.

    Adjudicators cannot consider counterclaims or claims over and above the deposit amount.  A counterclaim is where a tenant faced with a claim against their deposit, may feel that that the landlord’s claim should be reduced because of what they regard as a failure on the landlord’s part. For example,  they may want to claim compensation for disrepair in the property, or for something they have had to pay for which they feel should have been dealt with by the landlord.

    1. Can I explain what I’m claiming for? 

    Claims should be clearly articulated and broken down by item if necessary. The more detail you can include, the better the chance your claim has of being understood and upheld.

    As well as explaining what the claim is for, you should aim to explain why you are making the claim – i.e. did the tenant break the tenancy agreement?

    1. Do I have evidence to prove the claim? 

    In most disputes, landlords and tenants disagree on the facts around proposed deposit deductions, so having robust evidence is essential to demonstrating the true circumstances of the claim.

    Adjudicators will not actively look for evidence and can only use what is presented to them. Avoid saying evidence is available on request as it will not be requested. It is the responsibility of the person who asks for the deposit to be paid to them to make sure that they provide all relevant evidence when they submit their Dispute Application or Response.

    Helpfully, all of this is covered in TDS’ deposit deduction template which provides a structure for landlords and agents, and helps tenants to understand why claims are being made.

    A full guide on how to use the template is also available.

    For further information on disputes, please read our Guide to Disputes.

    ________________________________

    Catch up:

    Monday - Launch of "Lifecycle of a Deposit" Week!

    Tuesday -  Pre-tenancy deposit responsibility - tips

    Wednesday - 3 steps to protect a deposit correctly

    Thursday - How changes to a tenancy affect the deposit

    Friday -  Managing the deposit at the end of the tenancy

    Thank you to TDS for supporting landlord education and Property Tribes.

    If you would like to take advantage of the off-line training offered by TDS, you can find a list of workshops >>> here.

    SEE ALSO  -       End of tenancy cleaning - how clean is clean?

    UP NEXT -           How NOT to solve a landlord/tenant dispute!

    DON'T MISS -      Dispute with x landlord

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