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November 24

2014
by mydeposits
The adjudicator’s glossary #6: Proportionate

This is the sixth installment in our ‘adjudicator’s glossary’ blog series. The last five installments 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 beingproportionate 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 already covered this) 

Burden of proof (we’ve already covered this)

Weighting (we’ve already covered this)

Fair wear and tear and betterment (we’ve already covered this)

Mitigating losses (we’ve already covered this)

Proportionate

Reasonableness

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 does being proportionate mean and how does it relate to a deposit dispute?

Proportionate

Being proportionate as a landlord is to claim for something that is legitimate and within the eyes of the law or written within an agreed tenancy agreement.

Any award made by an adjudicator must be relative to the extent of the breach of contract and must not exceed the actual value of the severity of the breach.

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.

As a landlord it’s important to mitigate any potential losses.  Communication is vital in a landlord/tenant relationship and can help reduce any potential problems that could occur towards the end of a tenancy. My|deposits new infographic highlights the major causes of deposit disputes and offer top tips on how to avoid potential disputes with tenants.

Note: We provide guidance on our website about the adjudication process and how adjudicators view evidence. As guidance is produced we cannot advise parties on evidence provided for specific cases or review any decision made by the adjudicator.

Case study

Here’s an example of where proportionality may occur during a dispute.

-Tenants are ready to vacate a property as their tenancy has come to an end.

-Tenants have paid for a full carpet clean after admitting to a coffee spill which was removed by the full clean. The carpets have fair, wear and tear but still in relatively the same condition as check-in.

-Tenants have photo evidence of the invoice for the clean.

-The landlord decides that the carpet clean isn’t enough and holds back the tenants deposit to charge them to replace the carpets in the whole house.

-Tenants dispute the claim and insist that a carpet clean is enough to warrant their deposit to be paid back in full.

So what happened?

The adjudicator was satisfied that the tenants had enough evidence to match their check-out report to their check-in all be it with fair, wear and tear taken into account. The stain had been removed and the carpet had been left in the same condition as per the tenancy agreement. The landlord was not being proportionate in trying to claim for more than what was possible. If the carpets did need replacing it was the landlord’s choice and not at the cost of the tenants. This case highlights the importance of having detailed evidence to back-up or defend a dispute. The adjudicator was satisfied that the tenants did not breach the terms of the tenancy agreement and were awarded their full deposit back.

Our next blog will be about reasonableness, 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.

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