While no one wants a tenancy to end in a dispute over the deposit, if it does, it's best to be prepared. SafeDeposits is committed to helping landlords and letting agents know what to expect if the deposit repayment is disputed, and what evidence they should provide to support their case. We are currently in the middle of hosting a series of ADR workshops across Scotland, and we have a full range of disputes guidance documents on our website.
For those who haven't been able to attend a workshop, or who simply want a quick refresher, check out our top tips designed to help stop landlords and letting agents from making common ADR mistakes.
- The starting point for any issue regarding a deposit is that the deposit remains the property of the tenant
When a dispute reaches adjudication, an adjudicator's starting position mirrors that of the courts. The deposit is first and foremost the tenant's money: this remains the case until the landlord can justify their claim to it. The onus is on the landlord to show why they are entitled to claim money from the deposit.
- The adjudicator's decision will be based on the evidence presented
The adjudicator will not contact the parties for information and will not visit the property. In addition, they cannot make any assumptions, or construct a claim on behalf of the landlord or tenant. The evidence provided should be robust and reliable in order to support a claim. If a landlord makes submissions which are not supported by evidence the adjudicator may have no option but to disregard them. As a result, when the deposit is returned to the tenant following a dispute this is primarily because the landlord has not provided a strong enough case to keep it.
- The tenancy agreement is fundamental to all disputes
The importance of the tenancy agreement cannot be overstated. The adjudicator needs to establish the contractual obligations that apply to the landlord and tenant. If this document is not provided it is likely that the landlord's claim will fail because the adjudicator will be unable to establish the obligations agreed between the parties.
- The best evidence of condition at the start of a tenancy is a comprehensive inventory and schedule of condition/check-in report
The check-in report should provide both an inventory of contents and a schedule of condition of the property and its contents at the start of the tenancy. Some check-in reports rely on a clause to the effect that all items are in good condition unless otherwise stated. Whilst SafeDeposits will accept such 'over-arching' clauses, a well completed check-in report is considered to be the type that describes the condition, cleanliness and contents of each room in turn. Remember that a tenant who signs an inventory or check-in report is only agreeing with what is stated in the document. It does not imply acceptance of things which are not covered in the inventory.
- The best evidence of condition at the end of a tenancy, for the benefit of both parties, is a comprehensive check-out report
The check-out report is most persuasive if it has been completed clearly with reference to the check-in report, with the same measurements of the property's conditions used in both reports. A properly completed check-out report provides an accurate description that by comparison with the check-in report will clearly identify any matters that are the tenant's responsibility.
- Photographs are best used as an addition to, not a substitute for, the written word
A well written check-in and check-out report provides a level of detail and understanding that is hard to match by reliance on other methods such as photographs or video alone. To be considered useful as evidence, photographs should be of good quality and are best embedded into the check-in/check-out report, but if presented separately they should be clearly dated and signed. Remember, SafeDeposits will not visit the property - where photographs are not clear, or if it becomes a case of one word against another, we will rely on the written check-in/check-out report submitted.