Tenancy Deposit Protection Adjudication Case Studies October 2011

Transcription

1 Case Study 1 Damage caused by fire A barbecue connected to mains gas in an outhouse caused a significant fire at the property. There was no gas safety certificate for the barbecue. The Landlord's insurers refused to pay, as the barbecue was not in the "interior of the premises". According to the engineer s report, the cause of the fire was from a combination of the isolation valve not functioning correctly and the appliance left lit while it was put away. The Landlord asserted that the Tenant was responsible for paying for the cost of repairing the damage caused by the fire. The Tenant stated that the barbecue was faulty and requested the return of the Deposit in full. The Tenancy Agreement contained a clause which contained the statement that the Tenant was responsible for damage "excepting fair wear and tear and damage by accidental fire". In the Adjudicator s determination, he indicated that whether or not the property was insured was not relevant. He stated that no evidence had been supplied that the Tenant deliberately left the barbecue on. The Adjudicator found that the Tenant may have left it on carelessly or maybe even incompetently but it had not been done deliberately, and that it was therefore an accident. The Adjudicator further found that damage caused by accidental fire was not the Tenant's responsibility according to the tenancy agreement. The Landlord s claim failed accordingly. The Adjudicator noted that the relevant clause of the Tenancy Agreement was unclear and unnecessarily complex. The Adjudicator suggested that the relevant clause of the Tenancy Agreement be redrafted in plain English. Case Study 2 Court fees The Landlord sought to retain part of the Deposit to cover the cost of court fees for proceedings for possession of the property, which were rejected by the Court on technical grounds. The Tenant did not admit liability for the Landlord s claim. The Tenant submitted that she was not responsible for compensating the Landlord for costs incurred by the Landlord in pursuing an unsuccessful claim for possession of the property through the Court, and requested the return of the remainder of the Deposit in full. The Adjudicator found that under the Tenancy Agreement, the Tenant was obliged to compensate the Landlord for any reasonable costs suffered by the Landlord as a consequence of any breach of Tenant s obligations under the Tenancy Agreement. Page 1

2 The Adjudicator gave little weight to the Landlord s assertions that the Tenant was in breach of the terms of the Tenancy Agreement, by failing to leave the property at the end of the notice period set out in the notice requiring possession. The Adjudicator found no term in the Tenancy Agreement which obliged the Tenant to give up possession of the property on the expiry of such a notice, and further found that the law governing the Landlord s right to possession of the property under the Assured Shorthold Tenancy Agreement, provides that only a court could order the Tenant to give up possession of the property. After a careful review of the evidence provided by the parties, the Adjudicator was not satisfied that the Landlord had shown that the Tenant should be responsible for compensating the Landlord for court fees, under the terms of the Tenancy Agreement, and the claim was unable to succeed. The Adjudicator therefore, directed that the sum held by my deposits should be returned to the Tenant. Case Study 3 Hotel accommodation In addition to claims for damage dilapidations and cleaning, the Landlord sought to retain part of the Deposit to cover the cost of paying for hotel accommodation for himself and his family (whilst the property was cleaned); internet access (relating to the use of the my deposits website) and telephone calls to the Tenant regarding the dispute. The Tenant did not admit liability for the Landlord s claims. The Tenant submitted that the property was not let in a clean condition and that the damage caused was attributable to fair wear and tear. The Tenant did not comment specifically upon the Landlords claim for alternative accommodation, internet costs and phone calls other than to confirm that the whole of the Landlords claim was in dispute. The Adjudicator found that a comparison of the check-in report and the other evidence submitted by the parties relating to the end of the tenancy showed that the property had been let to the Tenant in a good condition. The Tenant had not contradicted the content of the check-in report when the tenancy began. Further the damage dilapidation occurred during the tenancy and were not attributable to fair wear and tear. There was evidence that the property needed further cleaning at the end of the tenancy. The Landlord was only seeking to be reimbursed part of the actual losses sustained and the amounts claimed were not unreasonable in the circumstances and were therefore allowed in full. In regards to the remainder of the Landlord s claims, these were disallowed by the Adjudicator as neither were they in the contemplation of the parties when the Tenancy Agreement was signed nor were they provided for in the Tenancy Agreement and were incidental to the Landlord s claims against the Deposit. Page 2

3 The information supplied to the Adjudicator also indicated that the amount claimed by the parties as being in dispute was agreed subject to liability being established, however, the amount paid back to the Tenant by the Landlord at the end of the tenancy did not equal the total amount of the Deposit held by the Landlord less the amount in dispute, which the Landlord had paid over to my deposits pending the outcome of the adjudication. Nothing further had been provided by either party to indicate that the Landlord had claimed additional amounts from the Deposit which were not disputed by the Tenant. The parties were reminded in the Decision that the Landlord is obliged to return the undisputed amount of the deposit to the Tenant at the end of the tenancy to avoid any further disputes arising about the return of the Deposit. Case Study 4 Agent s administration fee Agents acting on behalf of the Landlord claimed a administration fee for the late payment of rent and for a check-out fee. Under the Tenancy Agreement there were clauses that entitled the landlord to charge any costs to the Landlord of recovering or attempting to recover any rent in arrears, to charge interest at the rate of 4% above base for late payment of rent and to charge the reasonable cost of the inventory. The Agents supplied in evidence an invoice for from an inventory company, a rent statement showing that the tenant paid the rent of 2, eight days late in January 2010 and a copy of the agent s terms and conditions under which a administration fee was imposed on the Tenant for each reminder letter sent. On the evidence presented the Landlord was entitled to charge the reasonable cost of the inventory under the terms of the contract. The sum charged was supported by an invoice and seemed reasonable. Therefore the Landlord was awarded as claimed. As to the agency fee, the difficulty with the Agents reliance on their standard terms and condition was that the Agents had no direct contractual relationship with the Tenant only with their principals, the Landlord. So the Agents cannot impose direct obligations onto the Tenant as this would go against the doctrine of privity of contract, that is a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it. The Tenant s contractual relationship is with the Landlord. Although the Tenant signed the Agent s terms and conditions in the absence of a contractual relationship these are unenforceable. Page 3

4 Furthermore, even if there was a direct contract between the Agents and the Tenant then they cannot seek to claim from the deposit which is held under the terms of a separate contract i.e. the tenancy agreement. The only way these types of fees might be recoverable in law would be if in the agency contract the Agents were entitled to charge to the Landlord for chasing up rent. That sum in turn could be recoverable under the Tenancy Agreement as a cost to the Landlord of recovering or attempting to recover any rent in arrears. Since the agency contract was not supplied and since this charge has been presented as a direct agency charge the claim for the agency fee failed. However, the Landlord was entitled to interest under the contract at 4.5%. On the arrears of 2, this equated to 2.00 which was awarded to the Landlord instead. Conclusion Many agents do not understand basic contract law and frequently try to impose direct charges on tenants. In all agency fee cases you must carefully consider the contractual position to ensure that the fees are recoverable in law. The landlord, agent, tenant relationship is tripartite and direct imposition of charges by agents will breach the doctrine of privity of contract. Case Study 5 Unpaid rent The Agents, on behalf of the Landlord, were seeking to retain the Deposit in order to cover the cost of rent arrears at the end of the tenancy. The Tenant submitted that following a dispute with her husband some months ago, she left the property, and had informed the Agent that she had vacated the property. The Tenant submitted that she was therefore no longer liable to pay the rent after she had vacated the property, and that her exhusband and Co-Tenant, who continued to reside in the property should be solely responsible for the costs claimed by the Agents. In support of her submissions, the Tenant submitted a document signed by her husband and Co-Tenant, in which her husband stated the he would be fully responsible for the payment of rent. The Tenant submitted that she paid the full amount of the Deposit at the start of the Tenancy and had always paid the rent in full before she vacated the property. The Tenant therefore requested the return of the Deposit in full. The Adjudicator found that both the Tenant and her husband were named on the Tenancy Agreement, and had signed the Tenancy Agreement as Joint Tenants, and by signing the Agreement the Tenants have agreed to be bound by its terms jointly and severally. Page 4

5 The Adjudicator therefore found that the Tenant was still legally responsible both as an individual and jointly with her Co-Tenant to meet the terms of the Tenancy Agreement including the payment of rent. The Adjudicator acknowledged the document submitted by the Tenant as evidence to show the agreement signed by her partner and Co-Tenant. However, the Adjudicator found that this was a matter between the Tenants and reminded the parties that her remit is to adjudicate tenancy deposit disputes between Landlords and Tenants, any disputes between joint tenants could not be resolved by the Scheme. The Adjudicator found that in the absence of any agreement between the Tenant and the Agents that she was no longer obliged to meet the terms of the Tenancy Agreement, the Agents claim for rent arrears succeeded. The Adjudicator therefore directed that the rent owed by the Tenants be deducted from the Deposit and paid to the Agents. Case Study 6 Over usage of utilities The Landlord sought to retain part of the deposit, to cover over-usage of utilities. The Tenant disputed liability for this, claiming that the utilities were included in the rent and that it had been an extremely cold winter. The Adjudicator found that under the Tenancy Agreement, the Tenant was obliged to abide by a fair usage policy in relation to the utilities. If the use of the utilities proved excessive for the property (calculated in accordance with the national average), this sum could be deducted from the deposit at the end of the tenancy. The Landlord provided details of the national average use for a similar property from energy watch. The Landlord also included comparative evidence from the energy provider for the previous year s tenancy. Correspondence was also sent to the tenant during the tenancy warning of the excessive use, this spanned a 7-month period. The Adjudicator was satisfied by the evidence submitted by the Landlord and believed that an award was both reasonable and justified under the terms of the Tenancy Agreement. Case Study 7 Pest fumigation The Landlord s claim is set out in the rebuttal where she states that some of the deposit should be retained for pest fumigation treatment. Page 5

6 The Landlord claimed that should be retained in case pests or fleas are present in the property. The Tenancy Agreement stipulated that the Tenant must keep the property free of infestation of animal fleas and other pests during the tenancy. The Agreement also stated that the Landlord may withhold the sum of for up to two months after the termination of the tenancy, to cover the cost of any further fumigation if required. The final inspection was carried out, and there was no indication that the property had a problem with pests or fleas at this point or during the tenancy. It was approximately one month later that the evidence was presented from the Landlord in relation to this case and there is no suggestion that there had been a pest problem in the property since the tenancy ended. Whilst the Adjudicator accepted the terms set out in the Tenancy Agreement, a clause of the Tenancy Agreement noted that the landlord could use the for further fumigation costs. The Tenant did not need to fumigate the property at all during the tenancy, therefore no further fumigation was necessary. The Landlord was entitled to hold the funds for up to two months only if fumigation had already been carried out prior to the end of the tenancy. There was no evidence to suggest that fumigation of the property had been necessary and no reason for the Landlord to retain these funds. Case Study 8 Professionally cleaning the carpets The Landlord sought to retain a part of the Deposit, in order to cover the cost of professionally cleaning the carpets in the property at the end of the tenancy. The Tenant did not admit liability for the Landlord s allegation. The Tenant submitted that the checkout inventory was inaccurate, and requested the return of the remainder of the Deposit in full. The Adjudicator found that under the Tenancy Agreement, the Tenant was obliged to return the property and its contents in the same clean state and condition as they were in at the beginning of the tenancy. The Adjudicator found another clause under the Tenancy Agreement that stated that the Tenant was obliged to pay for the professional cleaning the carpets in the property at the end of the tenancy. The Adjudicator found that the Landlord could not rely on this clause of the Tenancy Agreement as it was an unfair contract term, where enforcement of this clause could result in the Tenant being liable for returning the carpets in a condition that was of a higher standard than the condition in which they were delivered at the start of the tenancy. Page 6

7 The Adjudicator applied little weight to the check-out report submitted by the Landlord, as it had not been signed by both parties in agreement, or completed by an independent third party. The Adjudicator found that the inventory report submitted by the Tenant as evidence showed that the property had not been delivered in a professionally clean condition at the start of the tenancy. After careful review of the evidence provided by the parties, the Adjudicator was not satisfied that the Landlord had shown that the Tenant returned the carpets in the property in a standard of cleanliness below the standard in which they were delivered at the start of the tenancy. The claim was therefore unable to succeed, and the Adjudicator directed that the sum held by my deposits for the professional cleaning of the carpets be returned to the Tenant in full. Case Study 9 Replacement carpets and decorating the property The Landlord sought as deduction from the Deposit in the sum of , in order to cover the cost of replacing the carpets and decorating the walls in the property at the end of the tenancy. The relevant clause of the Tenancy Agreement stated It has been agreed by both parties that the first monthly rental will be waived on the understanding that the tenant will carpet the property and decorate throughout. The Landlord submitted that the Tenant failed to comply with his obligation set out in the clause above at the end of the tenancy. He submitted photographic evidence in support of his claim. The Tenant stated that he spent in excess of on flooring, painting and fittings during the tenancy and also provided photographs in support of this submission. The Adjudicator reminded the parties that adjudication under the scheme was an evidence based process, and that the burden of proof rested on the Landlord to show that the Tenant had been in breach of the Tenancy Agreement, and that the Landlord had suffered a loss as a result of the Tenant s breach. The photographs submitted by the Landlord showed that work was required, and the Tenant s photographs showed that the floor and walls were in good condition. However, as none of the photographs had a verifiable date, the Adjudicator found that the parties could not rely on these alone in support of their submissions. In the absence of a check-in or check-out report, that had been signed by both parties or completed by an independent third party, or any other substantive evidence showing the condition of the walls and the floors at the start and at the end of the tenancy, the Adjudicator was not satisfied that the Landlord had shown that the Tenant failed to comply with the clause of the Tenancy Agreement noted above. The claim was unable to succeed on this basis. Page 7

8 Case Study 10 Forwarding post The Landlord was seeking to retain , being costs incurred as a result of late payment of service charge, specifically to his legal costs in relation to a court claim issued against him for failing to respond to the higher Landlord s letters of demand, delivered to the Property. Directing that the be refunded to the Landlord, the Adjudicator held that the Tenant was in breach of two clauses of the Agreement which stated that the Tenant must a) promptly notify the Landlord in writing of any letters relating to the Landlord, and b) forward any correspondence addressed to the Landlord without delay. The Tenant had done neither. The direct result of these breaches was that the Landlord incurred legal fees of that he would not have incurred had the Tenant forwarded the post as he was contractually obliged to do. Case Study 11 Replacement hoover and footstool cover At the end of a 2 year shorthold tenancy the Tenants disputed the Landlord withhold from the deposit for a broken hoover and for a new footstool, the cover of which had a small stain. The tenants said they would, happily pay, the cost of dry cleaning the footstool. The Adjudicator considered the Tenancy Agreement under which it was the Landlord s obligation: To keep in good repair and working order all... electrical equipment belonging to the Landlord and forming part of the Fixtures and Fittings and to maintain the same in such condition at his own expense during the term of the Tenancy, unless they have been damaged or broken due to negligence or misuse of the Tenant, his family, or his visitors. The Adjudicator found that insufficient evidence had been provided by the Landlord to establish the hoover was broken as the result of negligence or misuse by the tenants. The Tenants submission that they had used the hoover appropriately was accepted. The cost of a replacement hoover was not the responsibility of the tenants. In respect of the for a footstool, the Adjudicator noted that the Landlord had submitted a photograph of the footstool taken at check out, maintained that cleaning had not removed the stain and referred to a furniture website displaying footstools. Page 8

9 However, no invoice had been submitted for cleaning or a paid invoice for a replacement footstool. The Adjudicator found that insufficient evidence had been provided to justify the landlord withholding On the basis of the Tenants acknowledgement, the Adjudicator considered an appropriate amount to be deducted from the deposit was Case Study 12 Damage caused by leak The Landlord sought to retain the full Deposit to cover the cost of refurbishing the property after the ceilings collapsed from a leak in the loft. The Tenant denied the Landlord s allegations and submitted that he was not responsible for the cost of refurbishing the property as he returned from a holiday and found the property flooded due to a burst pipe while he was away. The Tenant requested the return of the full Deposit. The Adjudicator found that under the Tenancy Agreement, the Tenant was obliged to take reasonable and prudent precautions expected of a Tenant, particularly during the winter months, to prevent damage by frost or freezing occurring to the property and its contents. The Adjudicator gave little weight to the Landlord s assertions that the Tenant was in breach of the Tenancy Agreement by failing to leave the heating on and the water supply turned off when he went on holiday. The Adjudicator found that in the absence of any specific instructions stated in the Tenancy Agreement or given by the Landlord to leave the heating on and turn off the water supply, the Tenant could not have known that he needed to take those exact precautionary measures. After considering the evidence submitted by the parties, the Adjudicator was not satisfied that the Landlord had provided any substantive evidence demonstrating that the Tenant was responsible for the cost of refurbishing the property. The Adjudicator therefore found the Landlord s claim unsuccessful and directed that the full Deposit held by my deposits be returned to the Tenant. Case Study 13 - Cleaning The dispute related to the Landlord s proposed retention of part of the Deposit to cover the cost of cleaning. The Tenant had already accepted liability for a charge for rubbish removal, but insisted that the property had been returned cleaner than at the start of the Tenancy. The Tenant was obliged by the Tenancy Agreement and common law to return the property in the same condition as it had been in at the start of the Tenancy, fair wear and tear excepted. Page 9

10 However the Adjudicator found that no check-in procedure had been conducted at the property at the start of the Tenancy. The issue was further complicated by multiple co-tenants continuing to live in the communal areas of the student accommodation as individual tenancy agreements started and finished. It was therefore not possible to determine the condition of the property as a whole at the start of the Tenancy. The check-out report showed that the property had been left, in parts, in an unclean condition, requiring further cleaning. However, as the condition of the property at the start of the Tenancy could not be identified, the evidence did not support the Landlord s submission that the cleaning requirement had necessarily originated during the Tenancy. Consequently, the Adjudicator was unable to interpret the findings of the check-out report as a breach of the Tenancy Agreement. The sum held by my deposits was therefore refunded to the Tenant. Case Study 14 Unpaid rent The tenancy agreed was for two years. After 11 months, water started leaking through the bathroom ceiling, sufficiently badly that the Tenants said that they could not use the bathroom without an umbrella. The position deteriorated for more than eight months before the leak was stopped. By then, plaster had fallen off the walls, one of the Tenants had fallen in the bathroom and injured herself and another was diagnosed as suffering from chronic bronchitis due to long exposure to humidity. The Tenants said that the damage the leak had caused had not been repaired when the tenancy came to an end four months later. The Tenancy Agreement provided for the Tenants liability for rent to be suspended for any period during which the property was uninhabitable. The Tenants contended that that was the case and stopped paying the rent three months after the problem arose. The Landlord submitted that the property could not be regarded as uninhabitable because the Tenants had continued to live in it. Therefore, he said, the rent was payable. The Adjudicator considered that the rent suspension provision was intended to apply when a tenant could derive no benefit from a property in which he could not live and had the expense of alternative accommodation. Since the Tenants did continue to live in the property, the rent could only be abated fully if that was considered to be the appropriate compensation for their suffering. That decision fell outside the Scheme and the Adjudicator could only deal with the Deposit. Page 10

11 He considered that any abatement of the rent would, on the balance of probabilities, still allow the Landlord to recover more than the rent the Tenants had paid for the first three months after the problem arose plus the amount of the Deposit and directed that the whole of the Deposit should be paid to him. Case Study 15 Unpaid rent The tenancy was of a lower ground floor flat. The day before they moved in, the Tenants were told that there had been a leak into the bathroom from the bathroom above (a property which the Landlords also owned) but it had been cured. It became apparent immediately they moved in that the problem continued and they reported that to the Landlords Agents. The problem was not addressed, despite the Tenants constant efforts. Six weeks into the tenancy, a separate damp problem became apparent. Again, the Tenants reported it to the Agents and repeated an earlier request for bars on the windows to be removed, to enable the windows to be opened to allow ventilation. That request was refused. Five weeks later, the Tenants sent to the Agents a copy of a Surveyor s Report they had commissioned, which diagnosed condensation and both rising and penetrating damp. Meanwhile, the damp affected the health of one of the Tenants, as well as their furniture and their enjoyment of the property. As a result, the Tenants stopped paying the rent after two months and, eleven weeks into the tenancy, they moved out to stay with friends. They gave notice to the Landlords that they regarded their failure to address the problems as a fundamental breach of contract which entitled them to rescind the contract. When the problems still continued, they did rescind it. The Landlords submitted that the Tenants were not entitled to act as they did and offered to write off the rent only for the period from when the bathroom ceiling collapsed to when it was repaired (though they did not say when that was). The Adjudicator said that paying rent was the most fundamental obligation of any tenant. The Tenants could only escape from it if they could show that they were entitled to an abatement of the rent for all or part of the duration of the tenancy and were entitled to rescind the contract and bring the tenancy to an end when they did. In order to succeed in their claim for the Deposit, it was for the Landlords to establish that they would be likely to succeed in a claim for the unpaid rent. On the history of the tenancy, the Adjudicator could not be satisfied of that, on the balance of probabilities, and directed that the Deposit should be paid to the Tenants. Page 11

12 Case Study 16 Damage to flooring caused by a leak The Landlord sought to retain part of the Deposit to cover the cost of damage to flooring. The Landlord submitted that this damage was caused by a washing machine leak, and that the Tenant should be responsible for the costs of replacing the whole of the damaged floor area, as the Tenant had not reported the washing machine leak to the Landlord or the Landlord's agent within a reasonable time, and therefore there had been additional damage. The Tenant did not admit liability for the Landlord's allegation. The Tenant submitted that a few months into the tenancy water began leaking from the washing machine whenever it was used, that this was reported to the Landlord's Agent immediately, but that there were delays on the part of the Landlord's agent in arranging for the leak to be repaired. The Tenant also submitted that the Landlord's Agent informed the Tenant that the Landlord was raising the issue of the damaged flooring with the Landlord's insurance company. The Tenant requested the return of the remainder of the Deposit in full. The Adjudicator found that under the Tenancy Agreement the Tenant was obliged to inform the Landlord or the Landlord's agent as soon as practicable of any repairs falling within the Landlord's obligation to repair, and that under the Tenancy Agreement the Landlord was obliged to keep all appliances in good repair and working order. The Adjudicator found that the check-in and check-out reports supported the Landlord's claim that various floors in the property had been damaged during the tenancy, and accepted the evidence of the parties that this damage was caused by a leak in the washing machine. However, the Adjudicator could not establish from the Landlord's submissions or any evidence submitted by the Landlord, when the Landlord was claiming that the leak had started, or when the Landlord was claiming that the Tenant had first reported the leak. The Adjudicator also found that the Tenant had continued to raise the issue of the repair of the flooring with the Landlord's agent over a period of several months. After careful review of the evidence provided by the parties, the Adjudicator was not satisfied that the Landlord had shown that the Tenant had not reported the leak in the washing machine within a reasonable time. The claim was therefore unable to succeed, and the Adjudicator directed that the sum held by myldeposits be returned to the Tenant in full. Page 12

13 Case Study 17 Claiming for rent in lieu of notice where inadequate notice is given The Landlord sought to claim one month s rent in lieu of notice on the grounds that the Tenant had terminated the contract without notice. The Tenant stated that he had given notice by a letter dated 15th April 2011 and moved out on last day of the tenancy being the 25th May No evidence was provided by Tenant. The Tenant s version of events was contradicted by the Agents who said that the Tenant vacated the property by putting the keys through their letter box on the 14th June Again, no hard supporting evidence was submitted. The Tenant also submitted that as he had moved out on the last day of tenancy notice was not required. This was denied by the Landlord who pointed to a clause of the contract requiring notice to be given even to terminate a fixed term contract. Finally the Tenant submitted that the Landlord had himself served a possession notice under Section 21 and therefore notice was also not required for this reason. The claim ultimately failed for three reasons. First of all the Adjudicator could not be certain whether notice was given or not or indeed on what date the Tenant actually moved out. As it is always for the Landlord to evidence his case then in the absence of any evidence the Landlord s claim will usually fail. In addition, the Adjudicator noted that even assuming no notice was given if the Tenant moved out on the last day of the fixed term the Tenant was correct in his submission that notice is not required. A fixed term contract expires through the effluxion or passage of time. So if the Tenant moved out on the last day of the fixed period then the contract will have come to an end in law and notice will not have been required. As to the clause requiring the Tenant to give one month s notice to terminate a fixed term period, the Adjudicator held this clause to be unfair and unenforceable under the Unfair Terms in Consumer Contracts Regulations The difficulty with these types of clauses is that it requires the Tenant to give notice to terminate a fixed term contract which will have terminated in law anyway. It is therefore unfair under Regulation 5(1) of the Regulations because contrary to the requirement of good faith, it causes a significant imbalance in the parties rights and obligations arising under the contract, to the detriment of the Tenant. This view is supported by the Office of Fair Trading in their publication Guidance on unfair terms in tenancy agreements at paragraph Page 13

14 Finally the Adjudicator noted that the Landlord had anyway served a Section 21 Notice at the beginning of the tenancy requiring repossession of the property on 25th May As the Landlord has served a Possession Notice then the Tenant cannot also be required to give notice. Case Study 18 Deposit Registration Fee The Landlord sought to retain part of the Deposit to cover the cost of the Deposit registration fee. The Tenant disputed liability for the payment of this fee. The Tenant submitted that the Landlord had failed to register the Deposit within 14 days of the commencement of the tenancy, pursuant to the Housing Act It was not until the Tenant had raised this issue, with the Landlord that he then in fact proceeded to register the Deposit. The Adjudicator found that there was no such provision contained within the terms of the Tenancy Agreement, allowing for the deduction of this fee. The Tenant had not been provided with sufficient notice of this term, before commencing the tenancy and therefore consideration had not been given. After careful consideration of all of the evidence supplied, the Adjudicator was not satisfied that the Tenant should be responsible for compensating the Landlord for the Deposit registration fee, under the terms of the Tenancy Agreement, and the claim was unable to succeed. The Adjudicator directed that the sum held by my deposits should be returned to the Tenant. Case study 19 Council Tax The Landlord sought to retain a part of the Deposit to cover the cost of unpaid council tax. The Tenant admitted that the council tax had not been paid during the tenancy, and contended that the cost of council tax was included in cost of monthly rent. The parties provided very little evidence in support of their submissions. No evidence was submitted showing that the cost of Council Tax was included in the monthly rental costs. The Tenancy Agreement did not make any reference to the Council Tax. However, having taking into account the fact that the Tenancy Agreement expressly stated that the cost of rent included the cost of the gas, electric, water and internet, and made no mention of the Council Tax, the Adjudicator found, on a balance of probabilities, that the Tenant was responsible for the cost of Council Tax at the property during the tenancy. However, the Landlord had not provided any invoices, letters from the Council, or any other substantive evidence showing the cost of Council Tax at the property for the duration of the tenancy. Page 14

15 Whilst the Adjudicator found, on a balance of probabilities, that the Tenant was responsible for paying the Council Tax at the property during the tenancy, in the absence of any evidence showing the amount of Council Tax paid at the property for the duration of the tenancy; the number of tenants living at the property who were responsible for paying this amount; or any substantive evidence showing the actual amount of Council Tax owed by the Tenant in question, the Adjudicator was unable to make an award. Case study 20 Garden work The Landlord, sought to retain, a part of the Deposit, in order to cover the cost of garden work required at the end of the tenancy. The Tenant admitted that the lawn had not been mown, but asserts that this was due to the fact that a lawn mower was not provided. Under the Tenancy Agreement, the Tenant was obliged to return the garden in a similar condition to the condition in which it was delivered at the start of the tenancy. The Adjudicator accepted an invoice as evidence to show that the cost of garden work claimed, was The Tenant admitted that the lawn was not mown, but stated that this was because he was not provided with a lawn mower. In the absence of any evidence showing the condition of the garden at the start or at the end of the tenancy, the Adjudicator was not satisfied that the Landlord had shown that the was responsible for the full cost of garden work. However, as the Tenant admitted that the lawn had not been mown, the Adjudicator was persuaded that, on a balance of probabilities, the garden was not returned in a similar condition as the condition in which it was delivered at the start of the tenancy. Bearing in mind the Tenant s submission that a lawn mower was not provided, in conjunction with the fact that the Landlord had not shown the extent of work required, the Adjudicator found that the Tenant was only responsible to pay fifty-percent of the cost shown on the invoice. As such, the Adjudicator directed that be paid to the Landlord towards the cost of garden work, and that the remaining was returned to the Tenant. Case study 21 Check-out fee The Landlord sought to retain the sum of for the cost of conducting the check-out report. The Tenant felt that it would be unfair for her to bear the full cost of the check-out report alone, when a formal check-in report had not been conducted, and the Landlord therefore never paid for this cost. The Tenancy Agreement indicated that the Tenant was responsible for paying the reasonable cost of checking the inventory at the end of the tenancy. Page 15

16 The Tenant was therefore bound to make this payment, unless the term requiring payment was an unreasonable contract term. However, the Landlord was responsible for the cost of checking the inventory at the start of the tenancy, under the terms of the Tenancy Agreement. The Adjudicator accepted the Tenant s submission that a check-in report was never conducted, as the Landlord also admitted that this was the case. The Adjudicator noted that conducting check-in and check-out reports benefit both the Tenant and the Landlord, and that it would be unfair for the Tenant to bear the full cost of the check-out report given the circumstances of this case. The Adjudicator found that the Tenant was only responsible for paying fifty-percent of the cost of the check-out fee, and awarded to the Landlord. Case study 22 Cleaning, damage and gardening The Agents, on behalf of the Landlord, were seeking to retain a part of the Deposit in order to cover the cost of cleaning, addressing damage and gardening at the end of the tenancy. The Tenant submitted that the property was cleaned to a high standard and the carpets professionally cleaned at the end of the tenancy. The Tenant also submitted that the Landlord entered the property and made several changes to the property prior to the check-out inspection. The Agents stated that the Landlord entered the property after the end of the tenancy and before the check-out report was prepared, as this was the only time that he could travel to the property to clean and undertake maintenance work. The Agents submitted a check-in report as evidence to show the condition of the property at the start of the tenancy. The Adjudicator accepted this document as it was completed by an independent third party. The Agents also submitted a check-out report as evidence to show the condition of the property at the end of the tenancy. Although the check-out report had been completed by an independent third party, the Adjudicator was unable to attach any weight to this document as both parties submitted that the Landlord had entered the property prior to the check-out inspection, and made several changes to the property. The Adjudicator was therefore not satisfied that the check-out report provided an accurate representation of the condition of the property at the end of the tenancy. Unable to ascertain the true condition of the property at the end of the tenancy and not satisfied that the Agents have shown that the Tenant failed to return the property and the garden in the same condition as the condition in which were delivered at the start of the tenancy, the Adjudicator found that the Agents claim for the cost of cleaning, addressing damage and gardening was unable to succeed. Case study 23 Rent arrears The Agents, on behalf of the Landlord, were seeking to retain a part of the Deposit in order to cover rent arrears at the end of the tenancy. Page 16

17 The Tenant submitted that she should not be held liable to pay a day s rent for the last day of the tenancy as she had vacated the property at 2:30pm. However, the Adjudicator found that as the Tenant was still in possession of the property on that day, the Tenant was liable to pay the rent. The Adjudicator therefore accepted the Agents claim for rent arrears. Case study 24 Re-upholstering banquette seating The Agents, on behalf of the Landlord, were seeking to retain a part of the Deposit in order to cover the cost of re-upholstering a dining area banquette at the end of the tenancy. The Agents submitted a check-in report which stated that the banquette was delivered at the start of the tenancy, with the leather slightly scratched and becoming lighter in colour where it had been scratched. The check-out report stated that the banquette was returned as per the check-in report with further scratches evident. The Tenant s stated that the material covering the banquette was faux leather and of low quality, and submitted in evidence correspondence from an upholstery company to support his statement. The Landlord stated in his submission that he had lived in the property for eighteen months prior to the Tenants. The tenancy was for a duration of eighteen months. Photographs showing the condition of the banquette at the end of the tenancy were submitted by the Agents. The Adjudicator stated that after careful consideration of the photographs, she was inclined to find that the nature of the damage shown was consistent with fair wear and tear. In addition, bearing in mind the condition of the banquette at the start of the tenancy and the parties submissions as to the age and quality of the banquette, in the absence of any evidence to show that the actions of the Tenant during the tenancy went beyond regular use of the property, the Adjudicator was not satisfied that the Agents have shown that the Tenant was liable to meet the cost of re-upholstering the dining area banquette seating. Accordingly, the Agents claim was unable to succeed. Page 17