Claiming from a tenant's deposit - Part 2

Written by Gill Waller | Mar 13, 2023 5:48:11 PM

Claiming from a tenant's deposit - Part 2

How much can a landlord claim in the case of a deposit deduction dispute?

Last month’s article ‘Claiming from a deposit - Part 1’ sets out when a landlord might be able to make a claim against the tenant’s deposit, but it doesn’t deal with how much a landlord can actually claim. The following will explore how much of the tenant’s deposit the landlord can claim in the more common scenarios where a landlord wishes to make a claim against a tenant’s deposit.

With rent arrears, how much a landlord can claim from the tenant is mostly straightforward, as the tenancy agreement should clearly set out the amount of rent payable by the tenant, and so it is easy to calculate what the tenant might owe. With cleaning, decoration, damage, missing contents and other breaches of the tenancy agreement though, how much a landlord can actually claim is less obvious because there are so many different factors which will vary in each case, to consider.

In the event that a landlord and tenant cannot agree on what deductions, if any, should be made from the tenant’s deposit, either can refer the matter to the free dispute resolution service provided by the tenancy deposit scheme that protects that deposit. Then, the scheme’s adjudicator will take the following factors into account (this list is not exhaustive), when determining how much (if anything) a landlord should be awarded from the tenant’s deposit:

Wear and tear

Landlords cannot claim from a tenant’s deposit for wear and tear (wear and tear is covered in more detail in Part 1) and so the adjudicator will consider whether what the landlord is complaining of is simply reasonable wear and tear, or, if there is actual, justifiable damage present for which the landlord should be compensated.

Examples of wear and tear include scuffs on walls, worn carpets or discolouration of paint, whereas comparatively, damage might be a hole in a wall or a burnt carpet.

One factor to consider in determining what a reasonable amount of wear and tear is, is the duration of the tenancy. If the tenant has lived at the property for just 6 months, then not much wear and tear would be expected, whereas if a tenant has lived at a property for their entire adult life, then obviously more wear and tear would be reasonable.

Another factor in determining how much wear and tear is reasonable is the number and age of the occupiers. If the property is occupied by a family of five with three children under 10 years old, then obviously more wear and tear would be reasonable than if it was occupied by a single adult who lived alone.

If what the landlord is complaining of is more than just wear and tear, and the landlord is justified in making a claim against the tenant’s deposit, then the quality and condition of the property or whatever item was damaged, before the damage occurred, will then need to be considered.

Quality and condition

The quality and condition of the property or item at the start of the tenancy will need to be determined, in order to establish how much a landlord is able to claim. Age, expected lifespan and value will all be considered by the adjudicator when determining quality and condition – the original price of the item alone will not determine how much the landlord is able to claim. This is to ensure that tenants do not have to pay to replace an item for instance that is very old and tired with a new one, especially if they have only had use of that item themselves for a short time. For instance, if a tenant who had possession of a property for 2 years damaged a 10-year-old carpet beyond repair, the landlord should not be able to claim the cost of a brand-new carpet from the tenant – the landlord would only be entitled to a share of the cost of a new replacement. Or, in the case of an appliance which was halfway through its expected life when it was removed from the property by the tenant, the landlord would not be able to charge the tenant for a brand-new replacement – only a share of the cost of a new replacement, or, the cost of a second-hand replacement which is like for like - similar in age, model and condition. Additionally, and as noted above, the landlord will need to be reasonable – they would not, for example, be able to charge the tenant for the cost of a replacement sofa, if it could have been satisfactorily cleaned or repaired for less. In respect of the condition of the property at the outset of the tenancy – specifically in relation to cleaning, a landlord can expect their tenant to return the property to them at the end of the tenancy in a condition as clean as it was when the tenancy began, save for general wear and tear, and for rubbish to have been removed. The landlord will not be able to claim from the deposit for cleaning to a professional standard unless this was the standard when the tenant moved in, and the landlord cannot require the tenant to pay for professional cleaning at all.

The severity of the issue complained of by the landlord, and what a reasonable award would be to make good any loss suffered

Each case will be considered by the impartial adjudicator on a case-by-case basis, once they have assessed the evidence provided by the parties. The adjudicators decision is final although the matter could be referred to the court to consider, if one of the parties were not happy with the adjudicator’s decision.

How a landlord can best prepare throughout a tenancy in case of a future deposit deduction related dispute, and how to claim from a tenant’s deposit if need be, will be covered in Part 3 of this series.

In England, the three government-backed tenancy deposit schemes are the Deposit Protection Service, MyDeposits and the Tenancy Deposit Scheme. Each of these provide guidance on what a landlord can make deductions from a tenant’s deposit for, as well as guidance on product lifespans. Landlords should review the available guidance so they can be best prepared when claiming from a tenant’s deposit, as the scheme’s adjudicators will be the ones deciding how much to award, in the event of a claim against the tenant’s deposit, with reference to that same guidance.

Landlords may find the following links useful:

Overall though, the landlord must act reasonably and cannot claim more than is required to make good any loss they have suffered. The next blog post in this three-part series will focus on how landlords can best prepare throughout a residential tenancy in case of a future deposit deduction related dispute, and how to claim from a tenant’s deposit if need be.
When giving comment and advice on a non-specific basis, Boyes Turner cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems it is recommended that professional advice be sought.

About Boyes Turner

Boyes Turner are a regional UK law firm with an impressive international reach. The expertise of their teams is considerable, spanning the corporate world, technology and private clients. Jazmin Perry is a solicitor working in the firm’s Property Disputes team. She advises on property disputes including landlord and tenant matters, boundary issues, adverse possession and contested leasehold enfranchisement claims. (jperry@boyesturner.com​)

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