Here is a question to the blog clinic from Patty (not her real name) who is a landlord:
After a deposit was lodged with the TDS, and the correct paperwork served, the exiting tenants put in a claim.
The deposit was £620.
The case went to adjudication, and it was ruled that all of deposit should be returned to tenants.
This happened even though the landlord had submitted evidence that all of the deposit had been used to clear up bills left by the tenant. There was also a cleaning bill, from a professional company who had to clean the property from top to bottom, after the tenants left it in a dreadful state.
All monies spent were supported by invoices.
There was an electricity bill of over £200, cleaning bill of £100, sceptic tank emptying of around £50, and the list goes on.Should a landlord now have to pay the daily living costs left unpaid by tenants. Surely this is what a deposit is for – to prevent the Landlord being left out of pocket ?
I understand from the TDS, that the decision of the adjudicator cannot be reversed – so where does this leave the Landlord ?
A complaint has gone in to the TDS, in line with their own prescribed procedure. I await their findings.
They continue to send requests for the £620 to be paid to them for return to the tenants and they now threaten legal action on the Landlord if the money is not sent.
As the landlord – I am now not only out of pocket, but face legal action by the TDS, – I would rather let this one get taken to court than have to unfairly pay the bills left tenants.
Are then any cases like this – where unfair adjudication has ben addressed by the courts ? Or indeed cases where evidence supplied has been totally ignored ?
You don’t say why TDS found for the tenants.
Adjudication is a legal process and has to follow certain rules. The underlying rule is that the deposit is the tenant’s money and so the landlord has to prove ‘on the balance of probability’ that he is legally entitled to make a deduction before the adjudicator will rule in his favour.
There are always two elements to a claim:
- Liability and
- Quantum
Liability
This is about whether the tenant is liable for the item claimed by the landlord.
A common reason why tenants are not found liable for claims is because the tenancy agreement does not include a clause authorising the landlord to make deductions from the deposits.
Or the clause in the tenancy agreement may not authorise the particular item the landlord is claiming for.
Quantum
This is about whether the actual sum charged by the landlord is reasonable.
So if a carpet was soiled, an adjudicator may consider that a claim for replacing the whole carpet is unreasonable if it could have been cleaned.
Or, if replacement is allowable, the cost may be considered too high (for example if a tatty old carpet is replaced by a high quality persian rug).
Or there may be an element of ‘betterment’ if an old carpet is replaced by a new one, and awards are often reduced to take account of the expected usable life of the old carpet.
Procedure
Finally there is the question of whether you followed the proper procedure in submitting your evidence.
For example if it was submitted too late it will not be taken into account.
Also – you say you have invoices. Presumably copies of these were actually submitted to the adjudicator?
Conclusion
Although the decisions made by adjudicators often seem unfair, there is almost always a legal reason why they came to the decision that they did.
This is why it is important that landlords take care when submitting their evidence.
If the adjudicator has found for the tenant and you fail to put them in funds to refund the money to the tenant, they are legally entitled to recoup this money from you. So you are unlikely to be able to defend their claim successfully.
Click here to read the original article: "When TDS unfairly find for the tenants at adjudication"
