We announced last month that we're launching a new series of blog posts to help landlords, letting agents and tenants better understand the type of evidence the adjudicator looks for if there's a dispute. In this month's edition we're taking a closer look at the tenancy agreement as evidence, particularly common mistakes which landlords, letting agents and tenants make.

Please note that the tenancy agreement is a key legal document and we are only able to provide advice from a deposit point-of-view. For complete advice on how to draw up and issue a tenancy agreement correctly, we recommend that you seek independent legal advice.

1. Missing obligations

The tenancy agreement is vital for every claim because it establishes the contractual basis for the deposit to be used and the tenant's obligations under the agreement. The tenant's obligations - from cleaning and redecoration through to gardening - should be included in the tenancy agreement and should cover all eventualities. If an obligation is not covered in the tenancy agreement then there is no breach to claim for - for example, if the tenancy agreement doesn't mention gardening then it can't be used to support a landlord's claim for gardening costs.

2. A tenancy agreement that doesn't allow deductions to be made from the deposit

It sounds simple but the deposit clause must allow for deductions from the deposit. It's common place for the clause to set out certain areas for deductions - such as cleaning, damage, missing items, rent arrears, etc. - however, many landlords also include an overarching clause that allows deductions to be made to remedy any breach of obligations. Even if a deposit has been taken from a tenant, if there is no deposit clause in the tenancy agreement then deductions from the deposit can't be supported.

3. Not reading the tenancy agreement before the end of the tenancy

We understand that people are unlikely to remember every point of the tenancy agreement months, or possibly years, after signing it - that's why we recommend reading the tenancy agreement again shortly before moving out. If you're a tenant then this will help remind you of exactly what's required under the tenancy agreement - for example, do you need to have the property professionally cleaned or return a repainted room to its original colour? If you're the landlord or agent then it's worth reminding your tenant of these obligations - this can help avoid a dispute later on.

4. Not considering the wording of a specially negotiated clause

A specially negotiated clause can be used where the landlord or agent wants to place a responsibility on a tenant which is normally in exchange for a request that they have made. For example, if the tenant asks to keep a dog in the property the landlord or agent may wish to include a specially negotiated clause in the tenancy agreement which specifies that this is permitted as long as the property and soft furnishings are professionally cleaned at the end of the tenancy.

It's important to consider how a specially negotiated clause is worded: some have limiting factors such as 'if the damage is caused by the dog' or 'up to the value of…' - if these limits are included then the landlord or agent would need to provide evidence the damage was caused by the dog, would only be able to claim up to a certain amount, etc.

5. Reliance solely on a clause in a tenancy agreement

The landlord or letting agent can't make a deduction simply because there has been a breach of obligation in a tenancy agreement: there must be a financial loss which is supported by evidence. For example, if there is a clause in the tenancy agreement to say the tenant is not allowed to keep pets in the property, the landlord may not necessarily be able to make deductions to the deposit simply because the tenant has kept a pet - there would need to be evidence, for example, that a cat has scratched furniture in the property and therefore the landlord may wish to make a deduction for damages, using an inventory and check-out report, dated photographs, invoices, etc., to support the amount claimed for.