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What are a tenant’s options after losing at adjudication?

Horrified manHere is a question to the blog clinic from Ritchie who is a tenant

Following a tenancy deposit adjudication from MyDeposits.co.uk, our deposit was divided up thus….

  • Deposit: £1380.00
  • Amount To Landlord: £804
  • Amount to Tenant: £576

The amount to the landlord was divided as thus:-

  • Repair to Washing Machine: £96
  • Redecoration: £668
  • Carpet Cleaning: £40

The adjudication for the Redecoration is thus…

“I find the Tenant to be in breach of the Tenancy Agreement for drilling holes above the front door, adding shelves, pins and stickers to the kitchen walls; chipping the wall to the stairs; and redecorating the bedroom and lounge without obtaining prior consent.

The walls to the bathroom were not recorded as being returned in a worse condition; however, a further shelf has been added.

Whilst the Landlord has provided a quotation for repainting these areas, as the walls were not freshly painted at the start of the term and taking the length of the tenancy and the associated wear and tear into consideration, to award the full amount claimed would put him in a better position than he should expect to be in at the end of the term.

Therefore, I make a combined award of £668.00, being one third of the amount claimed and proportionate to the Tenant’s breach”

My issues are thus:

  • I had no opportunity to state my case, as I had to raise the dispute in order to prompt the agency into action, as they were withholding my deposit over one month after we left.
  • The house has been sold, so there is no financial loss to the landlord.
  • We had permission to re-decorate and I have email evidence of this.
  • Door to the washing machine was stiff and not broken
  • I have photographic evidence of the pubic hairs, cigarette papers and tobacco under one of the beds when we moved in. The carpet was not in a fine condition when we moved in.
  • The company listed on the quote is of dubious existence – certainly not a handyman company and I believe there was never any intention to carry out this quoted work.

Can you advise of any course of action to get some of our £804 and recommend someone to speak with?

Answer:

I should start by saying that it is quite unusual to receive a request like this from a tenant – normally it is the landlord who is complaining of injustice after a tenancy deposit adjudication.

There are less hurdles in the way of tenants winning at adjudication as the money is your money, not the landlords, so for the landlord to succeed he must provide evidence to support his claim for the deposit money withheld.

However this does not mean that you don’t have to do anything at all – you do.

The importance of evidence

A tenancy deposit adjudication is decided on the evidence provided to the adjudicator. They do not visit the property, they are entirely dependant on the paperwork and any other evidence sent to them by the parties.

The starting point is always that you own the tenancy deposit money and that it should be returned to you. However if the landlord then provides evidence to show damage or other loss, then this will then change things.

The sort of evidence that a landlord would normally submit would be:

  • A checkin and checkout report (preferably prepared by their inventory clerk) showing that the property was in a worse state when the tenants vacated than when they went in
  • Copies of quotations and receipts for work done or to be done
  • Photographs showing any damage to the property or perhaps a video
  • A written witness statement from the landlord or letting agent describing the reasons why they wish to make a claim

If the evidence provided by the landlord shows that he had an arguable claim then the adjudicator will look to see what evidence has been provided by the tenant to refute this.

If the tenant has provided no evidence, then the adjudicator is more likely to find for the landlord.

Although even then he will not always award the full amount – for example I see in your case he has made a deduction for ‘betterment’.

So the reason you lost is because you failed to provide your evidence. The adjudicator is not a mind reader – he has to have something to go on.

The importance of following the procedure

You say that you had no opportunity to state your case, but you must have done.

As part of the process tenants have 10 working days from the date the claim is submitted to My Deposits to send them the evidence in support of your claim.

It is I am afraid your responsibility to do this. If you fail to provide your evidence then the adjudicator will have no alternative but to find for the landlord – assuming he accepts the landlords evidence.

Even a letter explaining why the landlord is not entitled to make the deduction, is better than nothing.

It is essential that the parties follow the procedure set out for the scheme and get their evidence submitted in time.  If this is not done, then as in your case, you risk losing your case.

The standard of proof

The ‘standard of proof’ that adjudicators work to is that same as that in the civil courts i.e. they will decide things ‘on the balance of probability’. This means that they will find for the party whose evidences makes it more likely that they are in the right.

The standard of proof is not that used in the criminal courts – ‘beyond reasonable doubt’ which is a much higher standard.

So this means that if the landlord is the only one who has submitted any evidence, and there is nothing on the face of it to show the adjudicator that there is anything wrong with this evidence, he will have no alternative but to find for the landlord.

What you can do now

You do have the option of going to the small claims court now. However the courts really have more work than they can handle, and one of the main reasons for the adjudication scheme being set up in the first place was to relieve the burden on the courts.

So a Judge will not be impressed if you are going to court because you lost because you did not get your evidence to the adjudicator in time.  Unless you had some genuine reason for this, such as being ill.

However this is an option available to you.

You may also want to ring My Deposits and have a word with them – they do have a free advice line number which is 0333 321 9401.  But the general rule is that adjudicators are binding and that there is no appeal.

For the benefit of other tenants reading this, there are some excellent guides on the procedure which you will find on the My Deposits site here.



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4 Responses to What are a tenant’s options after losing at adjudication?

  1. Some tenancy agreements state that both parties agree to be bound by the decision of the adjudicator.
    In that (hypothetical) case, would the tenant (or landlord) even be able to go to small claim court?

  2. Yes they would.
    The terms and conditions of the deposits schemes already say the same thing – that their decision is legally binding on both parties.

    However, you can still go to court afterwards under certain circumstances. This would usually be on technical grounds, e.g. where the adjudicator failed to follow the correct procedures. You couldn’t go to court just because you disagreed with the result.

  3. Comment 1

    I think it worth pointing out for general purposes the limitation on damages contained in s18 Landlord & Tenant Act 1927.

    “damages for breach of a covenant or agreement (whether express or implied) to keep or put premises in repair during the currency of a lease, or to leave or put premises in repair at the termination of a lease, are in no case to exceed the amount (if any) by which the value of the reversion (whether immediate or not) in the premises is diminished owing to the breach of such covenant or agreement.

    Also no damages are recoverable
    for a breach of any covenant or agreement to leave or put premises in repair at the termination of a lease if it is shown that the premises in whatever state of repair they may be would at or shortly after the termination of the tenancy have been or be pulled down or such structural alterations made therein as would make the repairs covered by the covenant or agreement valueless.

    Where only part of the repairs will be rendered useless by subsequent alterations the landlord can probably recover damages in respect of those repairs which will not be rendered useless.

  4. correction
    Comment 2

    the ADR procedure does not in fact appear fit for purpose for the tenant

    http://www.mydeposits.co.uk/sites/default/files/mydeposits%20Alternative%20Dispute%20Resolution%20Guide%20for%20Tenants.pdf

    step 1 request return — fine
    step 2 initiate process
    step 3 Once the dispute is submitted you have 10 working
    days to submit all evidence in support of your claim.
    It is your responsibility to ensure that we receive
    the evidence you submit in support of your claim
    to the deposit.
    step 4 LL gets told and has 10 wkg days to repay the undisputed portion & to pay in the disputed amount stating whether court or ADR

    IF ADR chosen by both

    step 5 LL has 20 working days to file their evidence

    “You are unable to respond to this evidence.”

    step 6 papers sent to arbitrator and decision made on the papers

    This inability to comment on the Landlords submissions are what renders the process not fit for purpose where there is an issue to be resolved, very especially if the landlord has heretofore failed to give any reason for not refunding

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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



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