According to the head of adjudication at the Deposit Protection Service (DPS) both landlords and tenants are failing to submit the necessary evidence to ensure they are successful when there is a deposit dispute at the end of the tenancy.
There are strict time deadlines on submitting evidence and in practice both parties are either missing the deadlines or failing to proved any evidence at all to the adjudicators.
Alexandra Coghlan-Forbes, head of adjudication at the DPS, has said:
“Our Alternative Dispute Resolution service ensures an impartial adjudication for both landlord and tenant, but is reliant on both parties submitting proper evidence in good time to work effectively.
“We do everything we can to make sure both parties understand what’s needed and by when, and it’s important that both landlords and tenants meet the 14-calendar day deadline.”
The Deposit Protection Service has said that last year almost 18% of landlords and 23% of tenants who agreed to dispute resolution either missed their deadline or sent in nothing.
If landlords fail to send in evidence, the DPS adjudicators will automatically rule in favour of the tenant. Far more common is the parties failing to submit evidence at all rather than just missing deadlines, with 10% of landlords and 16% of tenants not sending any.
The deposit protection adjudication process is evidence based, which means that both parties must submit sufficient and appropriate documentary evidence if they are to be successful.
Alexandra Coghlan-Forbes says that:
“The most common question I am asked is why landlords and agents have to do the hard work in proving their claim in a dispute, rather than the tenant.
“The reason behind this lies in the general principles of English law – all cases have to be decided on the legal basis that the deposit belongs to the tenant unless the landlord can prove otherwise.”
In any dispute, whether it’s a money claim or deposit dispute in the small claims court, or as in these cases before an independent adjudicator, having hard evidence, presented in a concise and clear way, is the key to winning a dispute.
Clearly, many landlords and agents do not appreciate the importance of this and have not developed their skills and processes sufficiently, when managing their tenancies, to make sure that they have sufficient organised evidence available when it is required.
Very often the evidence is readily available, it’s just that landlords don’t realise how important it is to collate it and present it effectively, or they just can’t be bothered, believing they are so obviously in the right.
In his book “How to Win Deposit Disputes”, ex deposit adjudicator Tom Derrett explains why landlords lose disputes and how to remedy this. He explains in detail the differences between the custodial and insurance based schemes and how to handle claims in both. He also explains the pros and cons of opting to use the small claims court system instead of independent adjudication, and when you should consider this.
The DPS statistics show that the likelihood of entering into a deposit dispute is extremely low at just 2.5% of all tenancies. Of these, in previous years only around 1.9% were actually referred to adjudicators. DPS urges landlords and tenants to try to settle without going into the dispute process.
“We encourage landlords, agents and tenants to continue to discuss the deposit even when a dispute has been started”, says Coghlan-Forbes.
The most common reason for disputes is damage in the property, followed closely with cleaning and redecoration issues.
Landlords should bear in mind that fair wear and tear is allowed to the tenant, and where damage can be mended or covered without replacements this will always be taken into account when awarding damages. Age and lifespans will be allowed for when assessing damage and landlords will be asked to pay for betterment when a replacement is the only solution.
Any work carried out by the landlord him or herself is unlikely to be allowed as work estimates and invoices are deemed necessary evidence in disputes.
How to Win Deposit Disputes by Tom Derritt
— LandlordZONE (@LandlordZONE) January 15, 2015