This is the seventh instalment in our ‘adjudicator’s glossary’ blog series. The last six instalments have been to clarify some key legal terms commonly used by an adjudicator when they make a deposit dispute decision and this next blog carries on to that effect. You can read the previous blogs right here.
We advise starting at the beginning of this series but if you just want to know about being reasonable then beginning here won’t do you any harm.
To quickly refresh, here are the commonly used terms that we’re attempting to unravel…
1)Balance of probabilities(we’ve already covered this)
2)Burden of proof(we’ve already covered this)
3)Weighting(we’ve already covered this)
4)Fair wear and tear and betterment(we’ve already covered this)
5)Mitigating losses(we’ve already covered this)
6)Proportionate(we’ve already covered this)
Unfair contract terms…but what do they actually mean and how are they used in terms of a dispute?
After all, if this helps you to prepare dispute evidence or even avoid an adjudication in the first place, then it’s worth familiarising yourself with the jargon.
So, what is reasonableness and how does it relate to a deposit dispute?
Being reasonable as a landlord is simply not charging or trying to claim for any monies that is not rightly yours at the end of the tenancy.
An adjudicator will take this into account when looking at a dispute, and any exaggerated claims will be corrected during the independent Alternative Dispute Resolution process.
The adjudication process
Just like in a normal court of law the adjudication process in the event of a dispute is independent and evidence-based. An adjudicator will not ‘assume’ and can only make a decision based on the evidence provided. It goes without saying, the more evidence you provide along with being more transparent with your tenant means a higher chance of success at the dispute stage.
Note: We provide guidance on our website about the adjudication process and how adjudicators view dispute evidence. We cannot advise parties on evidence provided for specific cases or review any decision made by the adjudicator.
Here is an example of where being reasonable might occur during a dispute over garden maintenance.
Tenants vacated a property that had several garden beds and a lawn.
The Tenancy Agreementcontained a clause stating the tenant was obliged to keep the garden, driveway and paths around the premises clean and tidy, to mow the lawns as necessary, to ensure garden beds were kept weed-free, and shrubs and hedges maintained.
When the tenant moved out, the garden was in a poor state, with untidy gardens and the lawn not mown.
So what happened?
The landlord submitted check-in and check-out reports compiled by an independent inventory company. The reports were accompanied by detailed and digitally dated photographs of the garden, clearly showing its condition before and after the tenancy. The landlord though failed to produce an invoice or any evidence for the work needed to return the garden to its original state, and was claiming £400 to be deducted from the tenant’s deposit.
The tenant asserted that much of the growth was not weeds, but untidy self-seeding plants and also argued that the garden maintenance would not have cost the landlord £400.
The adjudicator found that the tenant had breached the Tenancy Agreement clause obliging them to keep the garden, driveway and lawns clean and tidy. The detailed inventory from a professional inventory company, along with photos, clearly demonstrated the deterioration in the state of the garden.
However, failure to produce an invoice or any evidence about the cost of remedial work meant that the adjudicator had no indication of whether the amount claimed by the landlord was reasonable for the work that needed doing. After contacting several maintenance companies the adjudicator awarded the landlord £150 for the garden maintenance carried out, which was deemed a reasonable amount to claim for such remedial work.
Our next blog will be about unfair contract terms, but before then you might want to check the full glossary and start familiarising yourselves with the terms.
Disclaimer – all advice and examples contained in this blog are for guidance only. Each dispute is decided on the individual circumstances and evidence provided.