PDA

View Full Version : Anyone challenged a TDS deposit decision successfully?



uklettings
20-10-2009, 14:55 PM
I had a dispute with a tenant (benefit claimant) who continually did not pay on time and left a ton of rubbish in the outbuildings. I made charges of approx £10 per instance of late rent,£25 serving section 21 etc that amounted to about £300. The TDS ruled that I should ony receive £30 and that the other charges were not valid and part of a landlords responsibility! They also ruled that the rubbish issue was classed as 'fly tipping' and was not ruled upon and that I should pursue this seperately! I was disgusted and of course the tenants were laughing! I promptly issued against the gurantor for the full amount and further complained against the TDS. The court date is in November and the defence of the gurantor is that the TDS ruled in the tenants favour. I have all documentary evidence invoices etc showing the charges made for the late payments and removing of the rubbish. The TDS were supposed to respond about my complaint but have failed to do so within their own timeframe. Wondered if anyone else had challenged a ICE descision and or gone to court to challenge it and how successful I am likely to be. Thanks all.

westminster
20-10-2009, 19:45 PM
When you agreed to use ICE you may have also agreed to be bound by its decision (read the TDS's T&C). So this might be a problem.

The consensus on this forum is that LLs should not use deposit scheme adjudication as it appears to unfairly favour the tenant. The adjudicators' knowledge of L&T law is also questionable.

Having said that, charges for late payment of rent, service of notices, etc are, I think, often considered "unfair" terms (esp. if the charges are excessive).

Please let us know how the claim goes, and whether the judge accepts the defence or not, as I for one would be very interested to know the outcome.

fthl
20-10-2009, 20:14 PM
I have seen a decision altered, if only a bit.


Having said that, charges for late payment of rent, service of notices, etc are, I think, often considered "unfair" terms (esp. if the charges are excessive).

Ditto. I must admit £300 of charges makes me start a little. I can see a potential problem justifying these.

What did the tenancy agreement say about the charges?

Were the outbuildings part of the property?

I take it that you also have decent inventories?


The adjudicators' knowledge of L&T law is also questionable.

To be fair, I doubt that most disputes are about the law, more about whether something needed cleaning or not, or whether setting fire to a carpet should be considered to be wear and tear or not. At least that has been my (limited) experience. Well, not the fire thing, but you get the idea.

ADR should not rule on contentious points of law though, as a general rule.

Esio Trot
20-10-2009, 20:20 PM
Wondered if anyone else had challenged a ICE descision and or gone to court to challenge it and how successful I am likely to be. Thanks all.

In order to understand TDS's approach to deposits, you need to work out their starting point.

They start by the assumption that the deposit, the whole deposit and nothing but the deposit belongs to the tenant. It is for the landlord to prove beyond reasonable doubt, correction, beyond a shadow of doubt that any deductions are both contractually liable and unavoidable.

The above might sound OTT, but unless you have concrete proof of tenant liability, you will be found against.

For example: An ICE found against the landlord where he claimed for a replacement when his tenant blew up the engine of the petrol lawnmower. Despite the tenant agreeing that the landlord provided the instruction booklet, and gave verbal instructions to the effect that the oil had to be checked before use, the tenant claimed that the mower should have also had a label. As the mower did not have a label saying "Check oil before use", the landlord lost his claim and the tenant got the deposit back.

uklettings
04-11-2009, 16:30 PM
I have seen a decision altered, if only a bit.



Ditto. I must admit £300 of charges makes me start a little. I can see a potential problem justifying these.

What did the tenancy agreement say about the charges?

Were the outbuildings part of the property?

I take it that you also have decent inventories?



To be fair, I doubt that most disputes are about the law, more about whether something needed cleaning or not, or whether setting fire to a carpet should be considered to be wear and tear or not. At least that has been my (limited) experience. Well, not the fire thing, but you get the idea.

ADR should not rule on contentious points of law though, as a general rule.

Hi I should have explained - the admin charges for the late rent and so on were only around £75 and the rest was for rubbish removal left by the tenant amounting in total to £300. Anyhow, the court hearing is later this month so ill present the case and see what happens. I genuinely think that for all the time I had to mess about sorting the arrears and benefit payments out the charges are reasonable. Irrespectively I certainly will not use TDS/ICE whatsoever in furture over any deposit dispute.

PaulF
04-11-2009, 17:04 PM
When you agreed to use ICE you may have also agreed to be bound by its decision (read the TDS's T&C). So this might be a problem. You are bound by it unfortuantely for some.

The consensus on this forum is that LLs should not use deposit scheme adjudication as it appears to unfairly favour the tenant. The adjudicators' knowledge of L&T law is also questionable. Adjudicators are instructed not to make any rulings on lawful matters, but to refer them to the solicitors panel for advice

Having said that, charges for late payment of rent, service of notices, etc are, I think, often considered "unfair" terms (esp. if the charges are excessive). Unfair terms are to be ignored and not commented upon, apparently.

Please let us know how the claim goes, and whether the judge accepts the defence or not, as I for one would be very interested to know the outcome Me too!Adjudication should if possible be avoided as I was not happy (as an ICE) with what I was instructed to do when I felt the landlord was given a grossly unfair advantage. It appears to now be much more 'tenant friendly' than before but I think that is mainly because agents have let down landlords with less than good documentation.

uklettings
26-11-2009, 16:19 PM
Case won, ICE descision over-ruled. Thanks for all advice.

Telometer
26-11-2009, 16:35 PM
Thanks for reporting back. Did you get your "unfair" penalties awarded to you as well?

westminster
26-11-2009, 23:50 PM
Case won, ICE descision over-ruled. Thanks for all advice.
That's very good news, to get confirmation that adjudication decisions can be overruled by a court. Thanks for letting us know. But like Telometer, I'm curious to know more details - did the judge say why the ICE ruling was overruled? Was it because you were claiming against the guarantor, not the tenant, or was it because the original judgment was unlawful/unfair etc??

uklettings
28-11-2009, 18:39 PM
That's very good news, to get confirmation that adjudication decisions can be overruled by a court. Thanks for letting us know. But like Telometer, I'm curious to know more details - did the judge say why the ICE ruling was overruled? Was it because you were claiming against the guarantor, not the tenant, or was it because the original judgment was unlawful/unfair etc??
The Judge state that he had read the ICE decision and that he simply would not be bound by its contents or decision. I presented my case from scratch and stuck to the evidenced facts and it paid off. I was awarded my total claime which was extremely sastifactory. The defendants case I always felt was very thin anyway and still dont understand the original ICE adjudication in the tenants favour. Lesson learnt - I will not use the deposit scheme dispute resolution ever again, it is heavily biased in the tenants favour, as advised by many forum members.

Agent3211
21-01-2010, 13:02 PM
Thank for posting your results on this. Very useful as we have found as an agent the TDS are now not even advising us of disputes raised and simply awarding the tenant the FULL deposit because they claim we haven't responded to their initial request for further information to prove we had prescribed information in our TA's!!

The first we hear about a dipsute is when we receive a random e-mail to demand the full deposit be sent to them because we haven't sent them the information!

Does anyone know who we can refer/complain to about the TDS as their own complaints procedure is absolutely laughable. I have been waiting for and chasing a reponse to a complaint I raised in September 2009. All I get is that they are still in process of dealing with it.:mad:

If you have similar experiences with the TDS would you consider joint action being brought against them?