What evidence will an adjudicator be looking for when considering a dispute?
A common misconception is that the tenancy deposit protection schemes are biased toward either the landlord or the tenant. When a dispute reaches adjudication, an adjudicator’s starting position mirrors that of the Courts.
The adjudicator must make a binding decision on the basis of the information provided by both tenant and landlord. This process is entirely evidence based. The landlord must support their claim with evidence to show that the tenant has broken the tenancy agreement. Here are a few pointers on the information that should be provided when considering a dispute:
1 THE TENANCY AGREEMENT
- This is a necessity for all disputes.
- The adjudicator needs to establish the contractual obligations that apply to the landlord and tenant.
- If this document is not provided it is likely that the landlord’s claim will fail because the adjudicator will be unable to establish the obligations agreed between the parties.
2 INVENTORY REPORTS AND CHECK-IN/CHECK-OUT INSPECTIONS
- The importance of a properly completed inventory cannot be underestimated – It must be robust and defensible if it is to be held up as a proper indicator of the facts.
- Tenancy deposit protection schemes do not disregard, out of hand, inventories that are not prepared by independent inventory companies – However, they are likely to place less weight on their contents.
- Many landlords use their agents to conduct their check-in and check-out inspections. Again these will not be disregarded but there is an added need to show that the process, and the person undertaking the inspection, was impartial. And that's not always easy to show when clearly the relationship between agent and landlord is tantamount to that of employee and employer. At Martin & Co in Norwich, we very much advocate the use of a qualified independent inventory clerk. We have found over the years that this is what works best for our cleints in protecting their access to the security deposit.
3 PHOTOGRAPHIC/VIDEO EVIDENCE
- Photographic evidence can be used to support, or defend a claim against a deposit.
- Photos should, ideally, be dated and signed by both parties, or alternatively digitally dated (preferably visible on the photograph).
- Video evidence can also be useful where photographic evidence is unclear or unavailable.
- Support the video with a written explanation to ensure that the adjudicator is drawn to the important points.
4 INVOICES, RECEIPTS, ESTIMATES AND QUOTATIONS
- These are necessary to illustrate any costs incurred in respect of repair/ replacement work being carried out.
- This evidence should be itemised fully, to enable an accurate breakdown of the costs being charged for each type of work undertaken.
- Only receipts or invoices corresponding to claims being made against the deposit are necessary.
- Estimates and quotations will not be afforded the same weight, however they are useful in providing an indication of the extent of charges necessary to rectify any damage or deterioration.
5 CLEANING CHARGES
- Deductions made by landlords in relation to cleaning charges are regularly disputed by tenants.
- Many claim that the cleanliness of the property at the start of the tenancy was not clear, or that the tenancy agreement did not make clear what was expected of them.
- Where landlords wish to make deductions for cleaning costs, they will need to be careful to record the cleanliness of the property in sufficient detail, at the start and end of the tenancy.
- The type and size of the property is an important factor when deciding whether cleaning costs are reasonable.
- A landlord can also support their claim by producing invoices or receipts for work carried out by a professional cleaning contractor
6 RENT ACCOUNT STATEMENTS
- Where the dispute concerns rent arrears, account statements and/or bank statements, which show arrears outstanding, are important; without this sort of evidence the adjudicator will struggle to confirm whether there were any arrears.
- These should clearly show the property and person to whom the account relates.
- Where arrears have arisen, it is also useful for the adjudicator to see evidence that the tenant has been told about them, and has been given the chance to comment on them.
7 UTILITY BILLS/COUNCIL TAX
- Where these bills are unpaid at the end of the tenancy, the adjudicator is likely to take the view that the liability for the outstanding accounts is between the tenant and the local authority/utility provider, rather than with the landlord.
- Therefore, unless the landlord can show that the bills were not transferred into the tenant’s name, or that the landlord has been required to pay any outstanding accounts, the adjudicator is unlikely to make an award to the landlord.
- It is acknowledged that some utility companies do attempt to pursue landlords for outstanding bills and those clauses are written into many ASTs to protect the landlord.
- However there is no liability on the landlord, especially if they can ensure that they have informed the utility provider that the tenant has vacated the property, they have provided the company with the final meter reading and a forwarding address for the tenant has been supplied.
8 WITNESS STATEMENTS/OTHER EVIDENCE
- Witness statements, or letters in support, can be obtained from those
- Individuals and provided for the adjudicator’s consideration.
- The adjudicator will not contact such potential witnesses to obtain further evidence.
- The adjudicator will not cross-examine witnesses, or take evidence under oath. Similarly, submissions such as “I have other evidence which I can provide if it is needed” are not helpful to the adjudicator.
- The parties must themselves submit all evidence, which they wish to be considered by the adjudicator.
For more information, visit the Deposit Protection website http://www.depositprotection.com
It is worth just stressing here that the deposit is not to be used for betterment, i.e. ending up with a better property than was first let to your outgoing tenants. The adjudicator will spot this from a mile off. Bear in mind too that they have a set of guidelines they work to in respect of what is and isn't "Fair Wear & Tear".
Where we manage our clients' properties for them, provided they have agreed to the use of an independent inventory clerk, we will deal with any dispute arising and make all of the necessary submissions to the adjudicator. We have to say though that if a trip to the adjudicator can be avoided through a sensible negotiated settlement with the tenant, this is by far the best outcome for all concerned and that would always be our first step. We see this and taking the matter to the adjudicator, if necessary, as part of our management role and there is no additional charge for protecting our clients' interests in this way. Indeed, nor do we charge for protecting the deposit in the first instance, as some agents do.
Mike White - Martin & Co Norwich