We have produced this guide to assist you with the dispute process. It is designed to ensure you clearly set out the proposed charges to be raised against a tenant.
What is Alternative Dispute Resolution (ADR)?
What is Alternative Dispute Resolution (ADR)?
ADR is a way of resolving disputes, rather than using the traditional route of the court system.
The ADR process is completely independent, conducted by trained professionals. Reposit cannot influence the outcome of any decisions made by the adjudicator.
ADR is an evidence-based process, where the outcome is decided by an impartial and qualified adjudicator. It is not a process of mediation, arbitration, or counselling and the individuals will never be required to meet with the adjudicator. Nor will the adjudicator visit the property subject to the tenancy agreement or dispute.
Once your evidence is submitted as described above, within the correct timeframes required by Reposit, the adjudicator will assess all of the evidence and make a binding decision as to how the disputed amount should be awarded.
The result of the adjudication cannot be challenged except through a Court of Law. Reposit are NOT permitted to re-open cases unless it can be shown that there was a manifest error.
Why is it important to get it right?
Why is it important to get it right?
Any claim made against a cash deposit or deposit alternative is ultimately considered a claim on the tenant’s money, and therefore the burden of proof lies with the Reposit partners to justify the claim. The Reposit partners will need to prove that they are entitled to make a claim against the tenant to restore the property to its original condition in a fair manner.
This guide will assist Reposit partners in setting out their case for any charges in a transparent way. If clear evidence cannot be provided to justify the charges, the independent adjudicator may award a lower amount, or nothing at all. Therefore, there are generally accepted best practices to follow to ensure you have sufficient evidence for all tenancies. Details of these have been set out below.
Evidence from the beginning of the tenancy
Signed tenancy agreement (AST or PRT)
This document is very important as it should set out the details of what charges can be raised. It will need to state any individually negotiated clauses you may have agreed with the tenant. When you are raising charges you should specify which clause in the tenancy agreement allows you to do this.
Signed check-in inventory *This should be signed by the tenant(s)
When evidencing cleaning, damages or item removal you will need to prove the original condition of the property. A dated and detailed inventory/check-in report which accurately describes the condition and cleanliness of the property at the start of the tenancy with corresponding photos is required for this. If you are carrying out the inventory yourself, you will need to pay close attention to the written detail, particularly regarding the condition of items and the standard of cleanliness.
This document should have been supplied to the tenant at the commencement of the tenancy and should be signed by them (if your inventory is not signed by the tenant you will be required to prove you sent it to them at the start of the tenancy). The tenant should have been given an opportunity to make any amendments.
Top tip: Use an independent inventory agency by a reputable company ideally accredited by ARLA Propertymark Inventories or the AIIC (the Association of Independent Inventory Clerks). This will remove any bias in the report allowing the adjudicator to rely more surely upon it.
Third-party tenant referencing results
It is part of Reposits eligibility criteria that you will need to prove the tenant(s) passed our referencing criteria at a minimum. If they did not pass referencing, we will need to see the reference result of the guarantor or proof that the tenant(s) paid 6 months' rent upfront.
Evidence from during the tenancy
Annual inspection report (Where the tenancy has surpassed 12 months)
This check is important to determine any issues during the tenancy and ensure that opportunity was given to remedy these prior to the end of the tenancy. It is best practice to conduct these checks at least annually, but often they are done more regularly. Make sure to keep the results of these checks as evidence.
Rent chaser emails from the point the rent became overdue (Where rent arrears charges have been submitted)
These are critical in showing your diligence in ensuring rent was paid on time by the tenant. In the case that arrears accrued and a guarantor was required, evidence that they too were notified for payment is also relevant.
Record of communication relating to the charges
Again, any supporting documents such as communication with the tenant that can prove the tenant's liability will strengthen your case.
Evidence from the end of the tenancy
Check-out report
The check-out report must state the date the check-out was conducted. The Reposit partners will need to carry out a check-out report of the property which describes its condition and cleanliness at the end of tenancy with corresponding photos. Without this document, it will be difficult to demonstrate that there has been a deterioration in the cleanliness and/or condition of the property.
Wherever possible, ensure that the tenant attends the check-out. Ensure that their comments are noted if they disagree with anything during the process, and make reference to these comments when responding over deductions
Top tip: Use the same independent inventory agency as used for the check-in inventory. This will allow the adjudicator to rely more surely upon the report.
Full rent statement *Where rent arrears charges have been submitted or a Reposit Switch has been used
It is essential to present a rent statement for any rent arrears related charges.
Re-let fees *For Reposits/tenancies that commenced after 1st August 2021
Please note that such fees must be considered “reasonable”, properly evidenced with invoices or receipts, and compliant with the terms of the Tenant Fees Act 2019.
Invoices and/or quotes *For cleaning, damages and item removals
These will be important to evidence any charges (but Reposit partners must understand the concepts of betterment and fair wear and tear when raising charges) - see the section below ‘Wear and Tear - When is it Fair?’.
Invoices and receipts must be fully itemised and outline an accurate breakdown of the costs for each charge type for the work undertaken; if these cannot be provided a full explanation should be provided as to why. Estimates and quotes will not be given the same weight as invoices or receipts as they do not demonstrate a cost actually incurred; however, they are useful in providing an indication of the extent of charges necessary to rectify any damage or deterioration.
The submission of an invoice by the landlord does not necessarily mean that the adjudicator considers the amount to be reasonable and the adjudicator will award an amount which is considered as reasonable and proportionate taking into account all factors and evidence.
How can the presentation of your charges determine whether you have a successful payout?
How can the presentation of your charges determine whether you have a successful payout?
Cleaning, damages and item removal
When raising charges for cleaning the Reposit partners must be clear about what deductions are being proposed.
It is beneficial that the clause(s) in the tenancy agreement which outlines the eligibility to charge this amount are pointed out. As it is unlikely that the Reposit partners can make a claim if these are not clearly stated.
Lastly, the Reposit partners need to refer to the check-in and check-out reports along with providing evidence (quotes/ invoices /receipts) to substantiate the case.
In summary, you would be required to outline the following:
Set out the proposed deductions
Refer to the tenancy agreement clause(s) that are relevant
Identify the specific photos and sections of the check-in and check-out reports that demonstrate the damage
Provide any receipts, invoices or quotes to quantify the cost of the damages
Provide any additional evidence such as communication with the tenants to support the charges
Rent arrears
Cases need to be coupled with a full rent statement from the start to the end of the tenancy. It needs to show rent owed, rent paid and any arrears at the end of the tenancy.
It is also a requirement that we are provided with evidence that you have contacted the tenant and guarantor upon the charges becoming due.
Re-let fees
Please note that such fees must be considered “reasonable”, properly evidenced with invoices or receipts, and compliant with the terms of the Tenant Fees Act 2019.
Wear and Tear - When is it Fair?
Wear and Tear - When is it Fair?
When leaving a property, a tenant must restore the property to its original as outlined in their tenancy agreement. This is with the exception of reasonable wear and tear. Listed below are some pointers that adjudicators use to decide what is fair and what is not.
Length of tenancy
The longer the tenancy goes on, the more natural wear and tear should be expected. This will also depend on the original condition of the item, for example, if the item already has wear at the start of the tenancy, the condition is likely to deteriorate quicker than compared to if it was new.
Number and age of occupiers
The more bedrooms and occupants (especially children), the higher the wear and tear in all the common areas (sitting room, passages, stairs, bathrooms and kitchen).
Wear and tear vs actual damage
When an item has been broken or damaged due to negligent use and needs replacement or repair, this would be considered “tear”. Consider whether the item has been damaged or worn out through natural use vs negligence when raising charges.
Quality of the property
Many new builds tend not to be quite as robust as older properties. Walls, partitions and internal painted surfaces tend to be thinner and therefore more susceptible to damage, particularly in high footfall areas in the property. Usually, this means redecoration is more common in these areas at the end of the tenancy.
Prevention
To ensure wear and tear is kept to a minimum, ensure the tenants are satisfied with the property and you could also encourage them to extend their tenancy to keep tenant turnover to a minimum.
Throughout the tenancy, you may wish to carry out strategic upgrades, such as painting certain rooms or changing carpets. These enhancements will help maintain the standard of the property and reduce the need for refurbishment.
It is important that any such upgrades are noted in an Addendum to the check-in Inventory and sent to the tenant for their acknowledgement so that they can be taken into account when the tenant vacates.
Set out your expectations of upkeep with the tenant from the outset. You may wish to carry out periodic check-ups too, this will encourage the tenant to keep the property maintained.
Photographic evidence
A full check-in inventory and check-out report should detail all areas of the property with written descriptions and photos. Providing these are clear and accurate, they can be relied upon as a trusted source to determine the condition of the property from the start and end of the tenancy. Ultimately, the more evidence you have regarding specific issues, the stronger your case will be.
Best practice
It is important to correctly describe the condition of items when listing them in the check-in inventory, for example, if something is stated as ‘brand new’ it is best practice to have supporting bills/receipts to prove this.
The Adjudication Process
Remember that the adjudication process in the event of a dispute is independent and evidence-based. An adjudicator cannot ‘assume’ and can only make a decision based on the evidence provided. You cannot challenge an adjudication decision unless it is via a Court of Law. The more evidence you produce and the more transparent you are with the tenant the higher your chance of success if a dispute is brought against you.
Taking into account the depreciation matrix
Taking into account the depreciation matrix
In most cases, the replacement cost of an item should then be subject to a depreciation deduction (DD). The Reposit partners cannot claim new for old, therefore, they cannot charge the full cost of replacing damaged/missing items unless they were stated as brand new at the start of the tenancy. This is not allowed in law and is termed as betterment.
Replacement costs should be subject to a DD, unless items were listed as brand new on the check-in inventory. And even where they are noted as brand new an allowance must be given for depreciation during the term of the tenancy. For instance, a carpet that was brand new at the start of a 5-year tenancy would be deemed to have reached the end of its lifespan at the end of the tenancy.
In order to calculate such a deduction, it is necessary to use a guideline as to the normally expected lifetime of contents and decorations. The list below provides average replacement lifetimes for different household goods and is generally followed by Insurance Companies, The Rent Officer Service and the Courts.
Carpets : 3-5 years
Furniture: 3-6 years
Kitchen Appliances: 2-5 years
Small electrical goods: 1-3 years
Decor: 3-5 years
What are the next steps and how will this result in a fair outcome?
What are the next steps and how will this result in a fair outcome?
Once the Reposit partners have finalised the charges in line with the above guidelines and have collected all of the supporting evidence, this should be uploaded in full on the Reposit platform.
The case will then be sent to independent adjudication by the team.
The adjudication process will take up to 14 days. Once the report is finalised, you will be informed of the outcome and will have access to the report. The tenant will also be informed of the charges they are required to settle following the ruling.
In summary
It is impossible to guarantee the outcome of a dispute due to each case being unique in nature. Disputes are contentious and therefore it is more than likely one party will feel aggrieved.
It’s important to note that adjudicators are looking for a fair and reasonable outcome.
Follow this simple step-by-step guide:
Letting Reposit partners need to consider carefully any charges they wish to raise against the tenant. Remember to consider, “are they fair?” and check the tenant’s liability as stated in the tenancy agreement.
Where possible, Reposit partners should discuss concerns with the tenant, which will, in turn, reduce the number of disputes.
Consider how your evidence would be viewed by a third-party adjudicator who is unfamiliar with the property, would they be satisfied with the evidence provided?
You cannot appeal against the final decision unless you challenge it through the courts.