DPS arbitration, will I win?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    #31
    No award for mold almost ruining new washing machine either,lack of clear before and after pics

    Ohh my post has disappeared,weird!
    I used open rent for refs,I think they use rent guard who seem highly qualified but they give little evidence,but they do guarantee rent,they just stated his salary and as it matched what he said I believed it,but they show u no documents

    As he lives in Germany I didn't contact hmrc but maybe I should..

    Did any one copy my thoughts on ADR post? It's gone after I tried to edit
    Not sure I can be arsed to retype whole thing

    I'll copy and paste ADR judgement when I get home if I'm allowed?

    Comment


      #32
      DPS arbitration, will I win?
      Originally posted by JK0 View Post
      Not if you're a landlord mate.
      I knew it.

      Comment


        #33
        heres the decision if it helps anyone, thoughts?

        Reasons for Decision
        9 All the parties are conversant with the facts of this case and the issues raised. I do not propose to recount all the facts of this case in the same manner and order as the parties have done in their respective documents, save where necessary for the purposes of this decision. I have also carefully considered all documents submitted by the parties in support of their submissions, and the parties should be reassured that the fact I do not refer to a particular document or point specifically, should not be construed to mean that I have not considered that document or point.
        10 I note the obligations placed on the Tenant under the terms of the Tenancy Agreement. I do not propose to recite the wording of the relevant obligations in this decision as both parties have a copy of the Tenancy Agreement.
        11 In accordance with the terms and conditions of The DPS, the deposit is held as security for the Landlord against the performance of “the Tenant’s obligations under the tenancy agreement, the discharge of any liabilities arising under or in connection with the tenancy, any damage to the property and/or non-payment of rent during the tenancy”. In accordance with established legal principles, the burden of proof in respect of the claim therefore rests on the Agent to establish on a balance of probabilities that the Tenant was in breach of the obligations under the Tenancy Agreement, and/or that a liability has arisen under or in connection with the tenancy and that the sums claimed are reasonable costs incurred or likely to be incurred as a result of the Tenant’s breach or liability. Adjudication decisions can only be reached on the basis of the evidence received by an adjudicator from the parties. It is the sole responsibility of each party to ensure that all relevant supporting evidence is presented to the adjudicator before the decision is made. My decision is based on the conclusions and findings I make from the evidence as presented.
        12 In considering any claim for damages and cleaning, I compare the condition of the property at the start and the end of the tenancy. I do this in order to establish if any damage has occurred during the course of the tenancy and if it is attributable to the Tenant, and if any repairs, redecorating, replacement of items and cleaning are required to return the property to the condition it was in at the start of the tenancy, fair wear and tear excepted. To do this, I compare the check in and check out reports as these documents are the primary source of evidence of the condition of the property at the start and the end of the tenancy. If the
        check out report shows that the property/an item is not in as good condition at the end of the tenancy as it was at the tenancy start, then the Agent may be entitled to claim.
        13 The Agent has submitted 2 documents which have been signed by the Tenant, each containing a written description as to the condition of the property. However, upon review of these documents I note that that one copy of this document contains an additional comment not present on the original version of document.
        14 I also note that the Tenant submits that they never received an inventory and they were in fact asked to take photographs showing the condition of the property at the start of the tenancy and then send these to the Agent. The Tenant has submitted the correspondence and these photographs which I am able to establish were taken 30th September 2016 and that these photographs were subsequently sent to the Agent.
        15 Whilst I note the Agent also submits dated photographs as check in evidence, on balance, having reviewed these photographs, I am persuaded that these are photographs of a computer or phone screen showing images which I am inclined to suggest may be marketing photographs.
        16 Therefore, having carefully considered the above, on balance, I am satisfied that the Tenants photographs sent to the Agent should be regarded as the primary source of check in evidence and that the Agents check in submissions can only be considered in so far as it is supported by a photograph submitted by the Tenant.
        17 I have not been provided with a check out report by the Agent.
        18 The absence of a check out report is often considered a glaring omission when dealing with claims involving damage and cleaning, as its absence severely limits the ability to ascertain if any deterioration to the property has taken place during the course of the tenancy.
        19 The Tenant does submit a limited hand written report dated 11th February 2017 which appears to have been signed by the Agent, as this is the same signature present on the Agents check in inventory submitted a evidence.
        20 I also note that the Agent also submits a selection of photographs, which I am able to establish were taken 11th February 2017. On balance, given this is the same day as the check out report, I am persuaded to suggest the photographs and the limited hand written
        summary may be of adequate evidential value in respect of the areas of the property they relate to.
        21 The parties are reminded that, as a matter of best practice, a check in inventory should be completed on the day the tenancy commences, be sent to and signed by the Tenant with any amendments the Tenant wishes to make agreed and accepted within a reasonable time frame at the start of the tenancy. The same is true at the end of a tenancy where a check out inspection should take place on the day the tenancy ends which identifies any differences in the condition of the property which is beyond the scope of fair wear and tear. Both these reports should also be supported by clearly labelled and directly comparable photographs.
        22 I note that this point that the check in and check out evidence are not in comparable formats. The parties are reminded that, as a matter of best practice check in and check out reports should be in clearly and directly comparable formats. Where this is not the case the ability to accurately compare the condition of the property at check in and check out becomes somewhat limited.
        Damage to floor
        23 I note from review of the check in photographs submitted by the Tenant that there appears to be various areas of damage present to the flooring at the start of the tenancy. Furthermore, I also note the Tenant reported an issue with the radiator which caused the floor to raise and the Tenant has submitted evidence to suggest that this was reported to the Agent and that the Tenant has then subsequently paid for a repair to this during the tenancy.
        24 Whilst I note the Agents check out photographs, on balance, given the comments above, I cannot be satisfied that the damage shows was not already present at the start of the tenancy or caused as a result of a leaking radiator, which I am satisfied that the Tenant reported and had repaired in a timely manner.
        25 Therefore, given I am unable to establish a breach of the Tenants obligations under the Tenancy Agreement, it follows I am unable to make an award in respect of this claim.
        Replacement fob
        26 The Agent seeks to retain the sum of £475.00 that the Agent submits was as a result of the Tenant losing a fob property.
        27 The Tenant disputes losing a fob for the property and is unsure as to why a claim has been made.
        28 I note that the check out report records at the Tenant returned one original fob and one replacement fob. I also note the invoice submitted by the Agent refers to the replacement of a “faulty” fob as opposed to a lost fob as the Agent submits in their final comments.
        29 On balance, given I am satisfied that the Tenant returned all keys, fobs and remotes they were given at the start of the tenancy and I have not been provided with sufficient evidence to suggest that the cause of the faulty fob as due to an act or omission of the Tenant, on balance, I find that I am unable to make an award in respect of this claim.
        30 I remind the parties that the provision of a quote, invoice or receipt does not prove that the works in question were actually required or that the costs listed therein were justified or reasonable. These documents can only reasonably be used as evidence of the Landlord’s actual or anticipated expenditure, and do not imply any liability on the Tenant’s part. Furthermore a landlord may choose to decorate/replace items in a property as part of the discretion as a homeowner. However, the parties should note that the exercising of this discretion does not automatically infer liability on the part of a tenant.

        Comment


          #34
          TV bracket
          31 I note that the Tenant accepts that they installed a TV bracket onto the wall of the property. The Tenant has not provided sufficient evidence to suggest that permission was granted for this installation. I am therefore persuaded that the Tenant has breached their obligations under the Tenancy Agreement.
          32 Whilst I note the Tenant submits they agreed to leave the TV bracket in place with the new Tenant, I find that this defence is unreasonable as the Tenants relationship and obligations are with the Agent and not the new tenant.
          33 On balance, having reviewed the size of the TV bracket, considering the amount of work required to remove, and repair the damage to the wall caused by the TV bracket and considering the location of the property in respect to the standard a new tenant can reasonable expect a property to be in, I am satisfied the sum claimed is fair and reasonable. I therefore award £495.00 to the Agent in respect of this claim.
          Management company fees relating to sub-letting
          34 The Agent has submitted various Air BnB reviews and booking confirmations which, on balance, I am satisfied shows that the Tenant has sub-let the property in breach of their obligations under the Tenancy Agreement.
          35 I also note the Agent submits various correspondence with the Management company for the block suggesting a breach of the master lease has occurred, as well as issues with refuse in the block which appear to be linked to the sub-letting.
          36 Finally I also note the letter dated 5th April 2017 where the Management company inform the Landlord that, given the Tenant’s sub-letting, the Management company were to levy a charge of £750.00 + VAT for their time in pursuing the matter.
          37 On balance, given I am satisfied that the Tenant had breached their obligations by sub-letting the property and I am satisfied that the sum of £750.00 +VAT is sum which arises directly from the Tenants breach of the Tenancy Agreement, I find it is fair and reasonable in the circumstances to award the Agent the sum claimed of £900.00 as I find this is a loss likely to be incurred by the Agent.
          Loss of rent/re-letting fees
          38 The Tenant disputes any liability for these fees on the basis that they were not served notice to vacate the property and that an agreement was made during a face to face meeting on 2nd December 2016 for the Tenant to leave the property once a new tenant was found.
          39 I note that the Tenant entered into an original fixed term for 36 months which contains a break clause which could be enacted at 24 months.
          40 I note that the Agent does not dispute that the tenant vacated the property on this date.
          41 Given the Agent has not followed the correct legal procedure for evicting a tenant from a property combined with the Tenant’s submissions on a meeting 2nd December 2016, on balance, I am persuaded that the tenancy was mutually surrendered 11th February 2017.
          42 Given that the Agent has not provided evidence of the terms of the surrender of the tenancy, such as correspondence making the Tenant aware that they will be liable for re-letting fees, I find that this claim is unreasonable in the circumstances.
          43 Furthermore, given the Agents objections to the Tenant sub-letting the property, I am also persuaded to suggest that the Tenant vacating the property early was in the Agent’s interests.
          44 Whilst I also note that the property was re-let for a sum of £400.00 a month lower than the rent agreed for this tenancy, given I am persuaded that this tenancy was mutually surrendered, and the Agent submits they look the lower rent for a “quick” solution, I find that any award to the Agent in this regard would be unreasonable. This is on the basis that, given the Agent chose to accept the lower rent in exchange for a lower rent combined with my comments above regarding the Agent not following the correct eviction procedure and what appears to be a surrender of the tenancy, I find that any loss incurred is too remote in law and would be unreasonable in the circumstances. I therefore make no award in respect of re-letting fees or loss of rent.
          Washing machine seal
          45 Given the above comments and in the absence of sufficient reliable and objective evidence, I am unable to make any meaningful comparison of the condition of the washing machine at the start and end of the tenancy. I therefore find that the Agent has failed to establish that the Tenant was in breach of the obligations under the Tenancy Agreement in respect of this claim.
          46 I would like to state here that I am only able to consider the claim as specified on the Agent’s statutory declaration and attached documents dated 2nd March 2017. I find it unreasonable that an agent or landlord should seek to amend a claim once the dispute process has commenced. This is on the premise that a landlord should be fully aware of any loss incurred at the point of submitting their claim.
          47 Ultimately it is for the party bringing the dispute to provide sufficient evidence to show their entitlement to a deduction from the Tenant’s deposit. Without further objective, reliable and comparable evidence to demonstrate that the condition of the property has deteriorated during the course of the tenancy and that this is attributable to the Tenant, I am unable to make any further awards to the Agent.
          Tenant counter claims
          48 I note that the Tenant seeks to offset any potential awards made against the overpayment of rent and the cost incurred by the Tenant in repairing a radiator. However, the parties must note that the deposit is held as security for an agent of landlord against losses incurred or likely to be incurred as a result of a breach of a tenancy agreement. Therefore, any counter claim by the Tenant falls outside the jurisdiction of The DPS and I advise the parties to seek further legal advice in this regard.
          49 The parties are reminded that the outcome of this decision is not a reflection on their perceived integrity or honesty; the decision has been reached primarily on the basis of the evidence provided.
          Decision
          I NOW having considered the submissions of the parties and the documents provided to me HEREBY DECIDE AND DIRECT that:
          i) The Agent’s claim succeeds in part.
          ii) The Deposit Protection Service shall pay the sum of £1395.00 to the Agent.
          iii) The Deposit Protection Service shall return the balance of the deposit, namely £2385.00, to the Tenant.

          Comment


            #35
            Sounds like it's mostly your agent's fault.

            Comment


              #36
              That certainly is a tale of woefully inadequate agent actions!

              Be prepared to be told to pay him for the repairs he undertook... and to have him chase up the overpayment issue too!!

              Comment


                #37
                To be fair, I don't think it's the agent's fault entirely - unless they are the party trying to make the claims.

                The floor appears to have been damaged when the tenant moved in and/or then further damaged by a leaking radiator (which the tenant repaired in a timely manner)
                So that claim fails regardless of what the agent supplies as evidence.
                And, given that the tenant has decent images taken when they moved in and out, even if the agent had their own versions, they'd only confirm what the tenant is claiming anyway.

                The fob was the agent's fault - they originally made the wrong claim and can't explain the loss.
                So that's down to the agent.

                The tenant fitted a tv bracket, caused a loss and compensated the landlord for it.

                The subletting fees are a loss and the landlord has been compensated for it.

                The claim for lost rent and re-lettting costs was never viable - the costs weren't the fault of the tenant, and just arose as they would have done anyway.

                The tenant has complensated the landlord for their loss beyond fair wear and tear (plus the radiator repair), which seems a sensible outcome.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #38
                  The outcome does sound reasonable from the information that was provided to them. LL and tenants often forget that adjudicators have nothing but what it's front of them to make a decision, so if all they have a unclear picture, showing what could be mould but could also be something else, they are not going to assume that it is, let alone that it was caused by the tenant. The key thing to remember is that the onus is on the LL to evidence why they should be entitled to some of the deposit amount.

                  The bit that surprised me though was the rationale used to not grant loss of rent. They state that they agreed on a monthly rental of £400 as evidence that they wanted to rent quickly and therefore a loss that they accepted, in essence. However, it seems that a similar argument would have been used with OP had taken the alternative route of not accepting any tenant not prepared to pay the same amount. They would then have been accused of holding the process of renting the property again and therefore it was their own doing for having loss income. I think the adjudicator made assumptions on intentions there that unfunded and if anything should have led to the opposite outcome, ie. OP agreed to rent again asap despite losing out financially long term and therefore it was right that they should have been compensated for a level of loss income.

                  Comment


                    #39
                    Loss of rent is almost impossible to claim in real life, so the choice of renting at a lower rate or holding out for the full rent is probably academic.
                    The landlord and tenant ended the tenancy, and the tenant isn't responsible for what the landlord does next with the property.

                    In theory, if a property was left in a completely unlettable state because of the tenant's actions or negligence, a landlord might have a claim.
                    Periods without a tenant are a normal part of letting property, and you'd have to show that there was a specific and greater than normal loss that the tenant could have reasonable foreseen and that the loss arose from something the tenant did or didn't do.
                    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                    Comment


                      #40
                      I wonder if o/p's rent was set crazily high, and that the only way tenant could afford it was to sublet rooms? In that case, I guess the adjudicator has a point.

                      I'm almost coming to the view that the agent was 'in on the scam'.

                      Comment


                        #41
                        £400 does seem like a big reduction.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #42
                          Obviously for me the jump out stuff was about the lack of information at inventory check in and out.

                          Then again, I just did a check out for a LL and the inventory he gave me was... wait for it... written on a single A5 piece of paper, one side written on, no signatures and a separate CD of pictures with no visible date. That is everything the various agencies say they do NOT want!

                          He will take his T to arbitration, despite my having told him his has absolutely no evidence of loss! And he begrudged my bill!!

                          Comment


                            #43
                            I see your point jpkeates, OP did state in one of his first post that he told the tenant that he needed to go when he found a new tenant and it is only when he found the family leaving there that he said to go right away, so really, he could have chosen to continue looking for a new tenant and only asked him to then. He was lucky he got away without giving notice.

                            Comment


                              #44
                              I'm the agent
                              My friend the owner
                              It's a two bed £2m gaff in centre of Soho
                              The naughty tenant asked for three years lease and offered £130 pcm over asking,he knew what he was doing and has probably done this before
                              Rents have come down
                              We didn't want it empty
                              Had ten viewing through right move,all {Mod - drop the offensive language} who couldn't pass referencing
                              We took the £400 pcm less to attract a great tenant

                              Comment


                                #45
                                Yes I'll never let a property without 3rd party check in and check out again!

                                Comment

                                Latest Activity

                                Collapse

                                Working...
                                X