I am pleased to introduce this informative article from Tom Derrett of adrsolution.co.uk which I featured in this blog post here. The article looks at the most common mistakes people make with ADR (alternative dispute resolution/arbitration) in the context of the free tenancy deposit scheme arbitration’s.
ADR problem 1 – Not Complying With Deadlines
The deposit protection schemes’ ADR departments process a large volume of claims. In order to do so efficiently they set deadlines for the parties to respond at various intervals, for example to dispute the other party’s version of events or to submit evidence. Although there is sometimes a degree of leeway, which may be exploited, some deadlines are set by the government and must be strictly enforced by the schemes. If landlords miss one of these deadlines, their claim will fail, often before it has begun.
Landlords often give perfectly reasonable explanations for their non-compliance. Perhaps they were abroad, in hospital, moved house or changed mobile phone number. It is up to landlords to keep their contact details up to date so that the schemes can get hold of them in time. Some deadlines can be varied, but not retrospectively.
ADR problem 2 – Lack Of A Tenancy Agreement
It sounds obvious but it is surprising how many claims make it to the adjudicator without the landlord sending in a signed tenancy agreement. In some cases it hasn’t been sent, in others the agreement is between the landlord and friends of friends, or relatives, and the parties didn’t think that anything in writing was necessary. The county court may be prepared to infer a contract in such circumstances, but the ADR department will not and any disputed claim on the deposit will fail.
ADR problem 3 – Not Keeping Records
You cannot tell in advance what a deposit dispute will be about. It could be any aspect of the tenancy, not just repainting and carpet cleaning. As with any business, landlords should be keeping detailed, accurate records of every aspect of their properties.
It is accepted best practice within the industry to commission independent inventory clerks to produce objective reports on the condition and contents of properties. These are invaluable evidence at adjudication, and it is surprising how many landlords continue to rely on their own hand written or home printed reports as evidence. Trying to save money like this may prove a false economy if your home made inventory loses a deposit dispute for you.
If they are not already doing so, landlords should consider using a software accounting package as a quick and easy way to record rent payments and to associate outgoings with individual properties. Needless to say, keep receipts for everything and back up your business files regularly.
ADR problem 4 – Not sending in any evidence
I have seen countless complaints from landlords who have lost indicating that they have cast iron evidence on a given point and offering to send it in. After the decision it is too late to send any more evidence. If you have it, send it before the deadline.
Many landlords also write in their statement “I have more evidence on this point. If you would like me to send it, please get in touch.” Adjudicators will only ask for more evidence in very specific circumstances. The volume of cases handled by the ADR departments is far too high for them to chase parties for evidence. If you read the small print on the schemes’ websites, you will see that the onus is on the landlord to submit all the evidence that he or she would like to be considered. If you don’t submit it, it won’t be considered.
Not discharging the burden of proof
This is the difficult one, and where most cases are won and lost. The landlord makes their claim and sends in some evidence, then the tenant responds. They send back some evidence and give one or more of the standard tenant defences, such as:
- “It was like that when I moved in”
- “I’m not in arrears”
- “We agreed that verbally” or
- “I gave proper notice”
Remember that the burden of proof is on the landlord. The schemes take the view that the money belongs to the tenant, and it is for the landlord to positively show that the deductions they propose to make from the deposit are justified. It is not for the tenant to disprove the landlord’s case. Can you be sure that your evidence, in a legal sense, proves that you are right and that the tenant is wrong?
In an alarmingly high number of cases, landlords lose their ADR claim because their evidence, although persuasive, doesn’t meet the legal standard. Often, with a little effort and forethought, the evidence could be brought up to an appropriate level. The trouble is that many landlords are too busy to research legal standards of proof or don’t feel confident preparing their claims. Solicitors are not cost effective in low value disputes, and free legal services, such as the citizens advice bureau, either won’t see you quickly enough, or don’t provide services to businesses.
The ADR Solution
That is where ADR Solution can help out. We understand that you are working to very tight deadlines and that is why we offer a standard 5 business-day, or a premium 48-hour service. Simply send copies of your evidence, and any other relevant information to ADR Solution and we will give you targeted, expert advice on:
- Specific problems with you claim
- How to remedy them
- How the award is likely to be calculated, and
- What else to include to maximise the amount you can recover from the deposit.
ADR Solution also offer a full money back guarantee. If you are not satisfied with the service, you can have your money back, so there is no risk involved.
About Tom Derrett: Tom has a wealth of experience in housing, having spent many years working with disadvantaged tenants on social housing projects and, after training in law, working as an adjudicator for a deposit protection scheme. Tom now runs ADR Solution, providing much needed assistance to landlords who are using the deposit protection schemes’ ADR services.