The Adjudicator takes a recent decision by a TDS Adjudicator and sets out the reasoning behind the decision. The aim of these digest reports is to help tenants, landlords and agents better understand how we make our adjudication decisions.

The names of the landlords and tenants involved have been removed and this is only a brief summary of the dispute.

Sandy Bastin, Head of Adjudication Services at Tenancy Deposit Scheme (TDS), the only not-for-profit tenancy deposit protection scheme, discusses the outcome of a recent claim against a deposit.

The Landlords Claim

The landlords claimed for:

  • Rent,
  • A missing heater
  • An unpaid loan amount. 

The Tenant’s Response

The tenant disputed the rent claim saying that the landlord had agreed that the tenant need not pay rent for the -four day period claimed.  The tenant made no comment on the matter of the unpaid loan amount or the missing heater. 

What the Evidence Showed

In relation to the claimed rent, the evidence showed that the parties agreed that the tenancy ended at the end of the month; however, it was clear that the landlord had agreed to the tenant remaining in occupation for a further period of 4 days. 

While the tenant’s argument was noted, the tenant did not provide written evidence to support her statement that the landlord had agreed that the additional days of occupation would be rent free.  Without conclusive written evidence that the landlord had agreed to waive the rent for the additional period, the adjudicator based the decision to award for rent on the contractual obligation of the tenant to pay rent, under the terms of the tenancy agreement during occupation.

The adjudicator was unable to consider an award for the missing heater, as there was no record of a heater being present or recorded in the check-in report for the start of the tenancy.  Without evidence, such as email correspondence to show that a heater was added to the property during the tenancy, or an amended check-in report, it was not possible for the adjudicator to consider the claim for its replacement.

As for the claim for repayment of a small loan made by the landlord to the tenant, it was not possible for the adjudicator to make an award from the tenant’s deposit, as any arrangement made between the parties, evidenced or not, would have been an arrangement that fell outside the terms of the tenancy agreement, which did not allow the deposit to be used for such a claim.

The full deposit was submitted to TDS, despite a portion of it being clearly identified as ‘undisputed’.  Any undisputed deposit amount should be returned to the tenant, within 10 days of a request having been made. 

What are the key points here?

  • Keep an audit trail of any agreement reached between the parties.  This will be useful in the event of a dispute, as the Alternative Dispute Resolution process is documentary evidence-based.  It is not possible to rely upon a statement alone.
  • If an item is added to the property during a tenancy, ensure that the check-in report is amended/updated to reflect the addition of the item(s), to include detail of their condition and cleanliness. Alternatively, ensure that you have a clear audit trail of the items provided.
  • In this case, even had the heater been evidenced as having been provided during the tenancy, replacement on a ‘new for old’ basis, would not have been an appropriate remedy.  Consideration should be given to fair wear and tear and betterment
  • Agreements that fall outside the terms of the tenancy agreement are not able to be considered.  Such claims will need to be pursued via other means.
  • Undisputed deposit amounts should be authorised by a landlord to be released to a tenant and should not be submitted for dispute.
  • Book a place on our TDS Academy – Foundation Course and Adjudication Workshops. Limited places are available.. 
  • We also run on-demand courses with our Partner Inventory Hive, so book now and view at your leisure.

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