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Is the landlord right to claim for damage said to be caused during the tenancy?
In this month’s case study, we look at a landlord’s claim for damage, said to have been caused during the tenancy. The evidence showed that the parties attempted to settle the dispute prior to adjudication, but no agreement was reached.
It is important to note that any offers or concessions made by the parties as part of negotiations to settle and that are rejected, will not be binding and will be disregarded for the purposes of adjudication. The landlord’s claim was therefore considered on the merits of the evidence presented
The Tenants Response
The tenants in response to the claim disputed the claims saying that the deterioration to the kitchen cabinets was down to fair wear and tear, the key was not broken, and that there had been many issues during the tenancy due to various leaks.
The Evidence
For an adjudicator to consider making an award to a landlord from a tenant’s deposit, it is necessary for the landlord, with whom the burden of proof rests, to establish with documentary evidence that there has been a breach by a tenant of a term within the tenancy agreement, that they can evidence that breach and that as a result of that breach the landlord has suffered a financial loss. It is essential also that any deposit use clause within the tenancy agreement, allows the deposit to be used for the claims at hand.
To support the landlord’s claim, a tenancy agreement and a rent statement were provided as evidence. A review of the deposit use clause contained within the tenancy agreement showed that the deposit could be used for damage, and it also contained an obligation on the part of the tenant to pay return the property in the same condition, less fair wear and tear, as at the start of the tenancy.
Kitchen Units
Two kitchen drawer fronts were detached at the end of the tenancy. The check-out report stated that further investigation needed to be carried out before liability could be determined.
As part of the evidence submission, the agent provided an email to the landlord which confirmed that a contractor had visited the property and spoken to the manufacturer about the drawers. The manufacturer advised that they were original doors and were probably 20/25 years old, and that the clips had been glued in place and had worn away which would be wear and tear, and that the other drawers looked as though it may happen to them soon. In these circumstances, the evidence supported the tenants’ position that the deterioration was due to wear and tear rather than damage or misuse. No award was made to the landlord.
Door Lock
The tenants submitted that the key was not broken when they left the property. However, the check-out report confirmed that the key was broken in the door lock.
There was no evidence that the tenants had provided any evidence to confirm that they reported any concerns about the functionality of the door lock during the tenancy which would be consistent with failure of the mechanism. In the circumstances, it was reasonable for the tenants to contribute towards the cost of remedial works, however, the tenants were not found to be responsible for the full cost of repair, as allowance must be made for fair wear and tear. No evidence had been submitted to confirm the age of the lock, and as such, a contributory award was made to the replacement of the lock.
Sealant
The tenants were not found to be responsible for the mould to the sealant. The check-out report indicated that there were leaks in the property during the tenancy and this was consistent with the agent’s email to the landlord which confirmed many reported issues with leaks that would have affected the sealant.
So, what are the key points here?
+ Read your tenancy agreement carefully before making any proposed deductions. Check that obligations exist on the part of the tenant, they can be evidenced as having been breached; that the deposit use clause allows for the proposed deductions, and lastly that a financial loss has been suffered.
+ Make sure that claims are supported with documentary evidence. For example, in this case, it was not appropriate to claim either for the repair to the kitchen units or replacement sealant, when the landlord’s own evidence confirmed deterioration to the cabinets due to fair wear and tear and to the sealant, due to leaks in the bathroom.
+ Tenants should report any issues or concerns they have at the property in a timely manner and in line with their obligations set out in the tenancy agreement.
If you are interested in further guidance relating to deposit disputes, visit the Help Centre at TDS to browse further guides.
Sandy Bastin, is head of adjudication services at Tenancy Deposit Scheme (TDS), the only not-for-profit tenancy deposit protection scheme.
