How TDS deals with disputes relating to non-assured Shorthold Tenancies

Transcription

1 How TDS deals with disputes relating to non-assured Shorthold Tenancies You have reached the end of the tenancy but can t agree what should happen to the deposit. What should you do now? This document explains: how you bring your dispute to us; how we deal with it; what information you need to give us; how long it might take to resolve the dispute. tel: fax: deposits@tds.gb.com Tenancy Deposit Scheme, PO Box 1255, Hemel Hempstead, Herts, HP1 9GN

2 First things first Who is The Dispute Service? We are an independent, not-for-profit company set up to resolve complaints and disputes about tenants deposits in the private rented sector and to do this speedily, cost-effectively and fairly. We operate the Tenancy Deposit Scheme (TDS), which is a government-approved tenancy deposit protection scheme. What is tenancy deposit protection? Tenancy deposit protection applies to all deposits for assured shorthold tenancies that started in England or Wales on or after 6 April By law, a landlord or agent who receives a deposit for such a tenancy must protect the deposit in a tenancy deposit protection scheme. Most residential tenancies in the private rented sector are assured shorthold tenancies. What if my tenancy is not an assured shorthold tenancy? There are a number of exclusions from the Housing Act 1988 which prevent tenancies from being assured shorthold tenancies. The most common ones that we see in relation to deposit disputes are: properties where the rent exceeds 100,000 per annum in England and Wales; tenancies where the tenant is a company; a letting of a flat that has been created by conversion from a larger building where the landlord lives in another flat also converted from the same property (i.e. a resident landlord); assured shorthold tenancies which began before 6 th April There is no requirement for deposits on tenancies that are not assured shorthold tenancies to be protected under the Housing Act legislation. This means that these deposits are not protected by TDS insurance-backed tenancy deposit protection scheme. These tenancies must not be registered on the TDS deposits database. So can TDS help with a dispute about a non-assured shorthold tenancy (non-ast) deposit? Yes, TDS can resolve disputes about deposits taken on non-asts. We are the only tenancy deposit protection scheme which does this. But because the deposit is not covered by our tenancy deposit protection scheme, there are some special arrangements that apply before we can help: your letting agent is a TDS member. This scheme is not available to landlord members of TDS. the landlord, the tenant and the agent must consent in writing to TDS resolving the dispute; a dispute resolution charge must be paid for TDS to resolve the dispute. The charge is currently 500+VAT or 10% of the deposit +VAT, whichever is the greater; the amount of the disputed deposit must be sent to TDS; we cannot start the dispute resolution process until we have received all of the dispute documents, the parties consent, the amount of the disputed deposit, and the dispute resolution charge. TDS will not normally deal with a dispute where the disputed amount for a non-ast is 5,000 or more, although we may do so at our discretion. Where this is the case, we will discuss the appropriate method of resolution with the parties and seek their written consent to proceed. How TDS deals with disputes relating to Non-Assured Shorthold Tenancies 2

3 What happens to the deposit after the landlord or agent receives it? The agent will hold the deposit during the tenancy. The tenancy agreement should state who receives any interest it makes. If there is no dispute about the return of the deposit at the end of the tenancy, the landlord or agent must pay the deposit to the tenant without delay, less any deductions that the tenant has agreed. If there is a dispute about the return of the deposit or about proposed deductions, the parties should try to reach agreement without delay. Most disputes are resolved informally in this way. But if agreement cannot be reached, the parties can ask TDS to resolve the dispute. Is your dispute about the deposit? We can only resolve disputes about deductions that a landlord or agent wants to take from a deposit when a tenancy ends. We cannot resolve disputes between tenants, complaints about the conduct of letting agents, managing agents or landlords, or other disputes that are not about deductions from the deposit. So if your dispute is about any of these things, you could use one of the following routes: Professional body: If your dispute is with an agent that is a member of a professional body, you may wish to contact them. The professional bodies include the Association of Residential Letting Agents (ARLA), the Royal Institution of Chartered Surveyors (RICS), the National Association of Estate Agents (NAEA), the National Approved Lettings Scheme (NALS), and the Property Ombudsman. Adviser: If your dispute is about an agent who is not a member of a professional body or if it is about a landlord, please ask for help from your local Citizens Advice Bureau, housing advice centre, law centre or other advice organisation. County Court: You could use the court to make a counterclaim against your landlord or if you think the landlord s claim should be lower because of a failure by the landlord. You may want to speak to one of the above advisers first, or contact a solicitor. What can TDS deal with? Using the TDS dispute resolution service is not compulsory. If either the landlord or tenant does not agree to use the service, one of them could choose to go to court. TDS can only deal with disputes about the deposit itself, and cannot make awards that are for more than the disputed deposit. If a larger amount is disputed, you may need to go to court. TDS cannot deal with counterclaims by tenants such as a claim for disrepair. If you are a tenant and you wish to bring a counterclaim against your landlord, you will need to go to court. TDS cannot deal with disputes between individual tenants, or between landlords and their agents. TDS does not act as a regulator and cannot order changes in trading practices, close down businesses, or prosecute landlords or agents. However, it does try to raise standards in the private rented sector by educating tenants, landlords and agents about the cause of disputes and how to avoid them. How do I send a dispute to TDS? Please complete a Dispute Application Form. You can download it from our website and send it to us by post within three months of the end of the tenancy. This will How TDS deals with disputes relating to Non-Assured Shorthold Tenancies 3

4 tell us what the dispute is about and who is involved. We need you to complete this form because we have to copy it to the other party for their response. If you have difficulty with the form, perhaps because English is not your first language, please ask someone to help you. Send the form to us with the evidence you want us to consider when dealing with the dispute. You will find a checklist on the form to help you. It is important that you send us the information that you feel will support your case. We will adjudicate on the basis of what the parties send us. Normally we won t ask the parties for more information. You will not be able to send us extra material after we have sent your case to an adjudicator. Nor will we be able to accept new evidence after the adjudication is finished. So it is important that you send all your evidence with your Dispute Application Form or with your Dispute Response Form. If there is something you do not wish the other party to see, you must make sure you remove or cover it up so it will not be visible. We will not be able to do that for you. We cannot accept physical evidence such as damaged items. This type of evidence does not compare an item s condition between the start and end of a tenancy, in the same way that checkin and check-out inventories can do. However, you may wish to send us a professional report from a suitably qualified person who can give an opinion to support your claim. If you send photographs, videos or digital recordings you must sign them, give the date they were taken and say which part of the dispute they relate to. In sending us the Dispute Application Form or Dispute Response Form, you agree that our adjudication is final and binding. There is no appeal against it within the rules of the Tenancy Deposit Scheme, but you are entitled to complain about the way your case was handled if you want to. Please see our guidance document What to do if you re unhappy with our service. Once we have received the Dispute Application Form we will contact all the other parties to the dispute to confirm that they consent to TDS resolving it. Before we can resolve the dispute we need to have: the agreement of all parties; the amount of the disputed deposit; the dispute resolution charge; any relevant supporting documents (these can include, but are not limited to, check in and check out reports, photographs, invoices/estimates); What happens then? TDS will copy the dispute details to the other parties and give them 10 working days to respond to the claim, and send in their evidence. Again, this can include, but is not limited to, check in and check out reports, photographs, invoices/estimates. TDS will normally appoint an impartial adjudicator to make an initial decision (but we may suggest negotiation, mediation or other methods if these are appropriate). We normally complete our adjudication decision within 28 calendar days of receiving the necessary information from the parties. We will pay out the disputed deposit within 5 working days of publishing the adjudication decision. We can pay by bank transfer or cheque. Only in rare circumstances will we pay by cash. The most usual method for resolving a dispute through TDS is to use adjudication How will the adjudicator make their decision? The adjudicator s decision will be based only on the evidence sent to TDS there will be no hearing or visit to the property. The decisions are based on what the adjudicator believes to be a fair and reasonable outcome based on the documentary evidence presented that can include How TDS deals with disputes relating to Non-Assured Shorthold Tenancies 4

5 comparing documents such as check in and check out reports and in some cases photographs. Invoices and estimates can also be useful. To get an idea of how disputes are approached please visit and follow the drop down boxes under either the tenants, agents or landlords areas of the site to find some example case studies and guidance on the way evidence is considered. If an important document is missing, say a relevant page of the tenancy agreement, the adjudicator may ask for it. But usually we will adjudicate on the basis of what the parties send us and do not ask them for more. The adjudicator s final decision is binding on the parties. There is no right of appeal to TDS once the final decision has been published. Further details about the how the dispute resolution process works are also set out in The Tenancy Deposit Scheme Rules for the Independent Resolution of Tenancy Deposit Disputes at For more on how our adjudicators approach disputes, please refer to our Guide to Deposits, Disputes and Damages. Is adjudication better than going to court? Deposit disputes need to be resolved quickly and cheaply. Tenants usually need the money as a deposit on their next property, and landlords need to know how much will be available to spend on things like redecoration, damage or repairs. Going to court takes time and can be expensive and stressful. Sometimes landlords or tenants prefer to go to court. It might be better for a landlord to go to court if they have a big claim that is well above the deposit. It might be better for a tenant to go to court if they have a counterclaim say if they had to pay for boiler repairs because the heating did not work for several weeks. TDS cannot deal with counterclaims. Our guarantee of impartiality TDS is overseen by a Board, which is responsible for operating and financing the business. The Board, and the TDS management, have no role in resolving disputes and cannot intervene in decisions about disputes. The scheme s Head of Adjudication is responsible for resolving disputes. The most usual method for resolving a dispute through TDS is to use adjudication but the scheme may suggest negotiation, mediation or other methods. Adjudicators work fairly and impartially. All TDS adjudicators belong to the Chartered Institute of Arbitrators and comply with our Adjudicator Code of Conduct, which is available on the TDS website. The adjudicators make decisions without favour, based on the issues in dispute and the evidence provided. TDS publishes breakdowns of awards in its Annual Reports. These give an overview of how awards are split between tenants, landlords and agents. You can see the adjudicators decisionmaking guidelines and some example case studies at How TDS deals with disputes relating to Non-Assured Shorthold Tenancies 5

6 Summary For the tenant Do you want to pay TDS fee for resolving the dispute? Is your dispute one that we can decide? Do you want to take the time and trouble to pursue it? Do you want us to adjudicate, or would you prefer to go to court? If you want to use us, are you willing to accept our adjudication as final and binding? Have you completed the Dispute Application Form or Dispute Response Form, and sent us all the evidence you want us to consider? Are you within the time limits? For the landlord/agent Do you want to pay TDS fee for resolving the dispute? Do you have a check-in inventory and a check-out inventory or report? Do you want to take the time and trouble to pursue this dispute? Do you want us to adjudicate or would you prefer to go to court? If you want to use us, are you willing to accept our adjudication as final and binding? Have you completed a Dispute Application Form or Dispute Response Form, and sent us the disputed deposit and all the evidence you want us to consider? Are you within the time limits? How TDS deals with disputes relating to Non-Assured Shorthold Tenancies 6