Claiming from a residential tenant’s deposit – Part 2. How much can a landlord claim in the case of a deposit deduction dispute?

Rent arrears

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.

 

Deposit deductions for damage

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. 

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: 

• A guide to deposits, disputes, and damages (Tenancy Deposit Scheme)
• The end of a tenancy (Tenancy Deposit Scheme)
• #AskTDS – what can I use my tenant’s deposit for? (Tenancy Deposit Scheme)
• A guide to product lifespans (Tenancy Deposit Scheme)
• A guide on the life expectancy of rental property products (MyDeposits)
• In disputes – be fair (Deposit Protection Service)

 

Overall though, the landlord must act reasonably and cannot claim more than is required to make good any loss they have suffered. 

 

We are on hand to assist landlords or tenants with deposit, or landlord and tenant related disputes.  You can contact our dispute resolutions team.