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

Here 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.