This is fourth installment in our ‘adjudicator’s glossary’ blog series. The last three instalments have been to clarify some key legal terms commonly used by an adjudicator when they make a deposit dispute decision and this next installment 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 what is and what is not ‘fair wear and tear’ then beginning here won’t do you any harm.
To quickly refresh, here are the commonly used terms that we’re attempting to unravel…
Balance of probabilities (we’ve covered this already)
Burden of proof (we’ve covered this already)
Weighting (we’ve already covered this)
Fair wear and tear and betterment
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.
What is fair wear and tear and betterment?
The interpretation of wear and tear is certainly a topic that can be discussed at length.
There are a number of aspects landlords can take into account when trying to judge the general wear and tear to a property. To read more in detail you can view our in-depth guide right here.
But above all, deposit deductions must be fair and reasonable and they can’t leave you in a better position than you were in before, nor should they greatly enhance the value of the items the deductions will replace, repair or improve.
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 can’t ‘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: MyDeposits cannot interfere or review any decision made by the adjudicator and cannot advise you what evidence will be accepted by the adjudication process.
Ultimately, as a landlord your aim is understand that wear and tear will occur in your property. You cannot tell your tenant how to live in the property but you can ensure that you have covered all the bases in the event of a dispute being raised over the return of their deposit.
Let’s take an example of wear and tear and betterment from a dispute over damaged laminate flooring. Here are the facts:
The landlord had brand new laminate flooring installed in the living room of one of their properties before new tenants moved in.
They kept a receipt for the cost of the flooring installation and fully detailed the condition of the property in the inventory, including photographic evidence, which was signed and dated by the tenant.
When the tenant moved out a year later the laminate flooring had been heavily dented and badly scratched, needing repair.
The landlord proposed deductions to cover the cost of repairing the laminate flooring but the tenants disputed that the damage was down to fair wear and tear and a dispute was raised.
So what happened?
The adjudicator’s decision came after the landlord produced conclusive evidence of what was deemed in the end to be tenant damage of the laminate flooring. Everything was signed and dated which added to the robust defence in favour of the landlord.
The inventory, photographic evidence and receipts allowed the adjudicator to clearly see the extent of the damage and be satisfied that it was more than just wear and tear. This is a great example of a landlord being prepared and having the necessary detail in the event of a dispute.
Communication and common sense can play the most important part in solving a dispute or even to make sure it doesn’t get that far. It is your house, but it is the tenant’s home so some understanding on both parts can go a long way.
The next blog will be about mitigating losses, but before then you might want to check the full glossaryand start familiarising yourselves with the terms.