Here is a question to the blog clinic from Susan (not her real name) who is a landlord:
My question is with regard to damage caused by tenants using insufficient heating/ventilation leading to black mould formation throughout the flat, particularly the bathroom. I lived in the property myself for about a year, so I know that it is possible to live there without such problems arising.
The tenants claim that the bathroom extractor fan did not work during their tenancy, but this was never reported to me or the letting agency. At check-out, the extractor was found to have been turned off but was fully functional, and no evidence of reporting was presented by the tenants.
I made a claim against their deposit for repairs to the mould damaged areas and cleaning work, but this was rejected by My Deposits, as they said the extractor was my responsibility.
I ended up with the bill for the redecorating and mould removal, as well as having the extractor replaced with one which cannot be turned off to prevent a recurrence with future tenants.
I am not sure how I can be held responsible for the tenants having kept the extractor off for several months, especially where they were unable to provide evidence of having reported it but, there does not seem to be any right of appeal against adjudicator decisions.
Can you advise on this please, and how to proceed in the situation where the Deposit Scheme has made an apparently incorrect decision. The letting agent was completely baffled by it, but said they could do nothing.
Adjudicators will always start from the position that the deposit is the tenant’s money and landlord have to prove by the evidence they submit, that they are entitled to a deduction from the deposit.
So the landlords claim will always stand or fall by the quality of evidence they submit.
If you are in the right but do not submit sufficient evidence to prove your claim to the adjudicator’s satisfaction (on the ‘balance of probabilities’) then they will always find for the tenant.
Suggestions on evidence required
For this case I would have thought you would need evidence to show that the property would not have mould if the extractor fan was used – which could be a written statement from you giving your evidence of your experience of living there and maybe a statement or report from a professional such as a surveyor on the circumstances under which this type of mould will grow.
You would also need evidence to show that the extractor fan was working at the end of the tenancy (I would recommend evidence from someone other than you – to corroborate your evidence – maybe an independent inventory clerk) and also your statement should state that the tenants failed to let you know of any repairing issues.
Evidence of letters from you to the tenants after inspection visits telling them that they must keep the extractor fan on would also have been very helpful.
It sound to me as if My Deposits got the impression from the evidence that the fan was not used because it was in disrepair – so it looks as if your evidence gave the wrong impression or you did not have sufficient corroboration of your evidence. You need to be very clear.
If your evidence is going to conflict with that of the tenants, you really must have some sort of independent corroboration, or you will fail to prove your case ‘on the balance of probabilities’ – which is the standard of proof used by adjudicators.
Tenants always have an inbuilt advantage as the deposit money belongs to them.
Further help
Landlords preparing evidence for adjudication can find guidance in Tom Derrett’s book How to Win Deposit Disputes.
There is also an excellent talk from Mike Morgan, the head of adjudication at TDS, on how adjudicators approach cases and the sort of things they are looking for, which you can get >> here (talk 5).
Picture provided by Sandra Savage-Fisher of QuaLETy Ltd
Documentation and evidence are key.
Often tenants have no idea about what causes condensation and blame the property rather than the way they use it.
To make it clear from the start we always provide tenants with a booklet about condensation and a ‘How to protect your deposit booklet’.
They are provided to give tenants information at the start of the tenancy on how to protect both the property and their deposit.
Then if any mould is spotted during the periodic visits it is easier to remind them of their responsibilities and how it is likely to affect the deposit.
In answer to their last question, there is no route for appeal once you have agreed to adjudication. However, it may be worth writing to complain if you genuinely think the adjudicator misunderstood the evidence. There are rumours of some complainants having received money back. However, it is more likely that you just failed to submit enough quality evidence for the examiner to make a decision in your favour.
Of course, you can still take the tenant to court, but you would be fighting an uphill battle with the judge right from the start if you are refuting the findings of an independant adjudication process. You will need very good evidence to back up your claim.
TDS didn’t adjudicate on this, but one of our monthly digests touches on mould and the importance of evidence:
https://www.tds.gb.com/resources/files/Adjudication%20Digest%20No%203%202012%20REVISED%2002%20APRIL%202012.pdf
Schemes offer separate guidance but our approach to adjudication is fundamentally the same.
As Tessa said, clarity, relevance, and reliability of evidence are very important to get your point across properly.
An independent damp and mould assessment may have been useful, as telling the adjudicator you used to live in the property and suffered no problem carries little weight. A professional report showing likely causes of mould and quality of ventilation/insulation (plus listing a functioning extractor in the check in and check out) will be more reliable to show if tenants’ inaction or issues with the property was the main cause of damage (or a combination of both).
Susan I would walk away and put it down to experience or lack of! Take what lessons you can from this and move on. Whether the fan was working or not or indeed whether there was a fan installed is of no relevance. What is relevant is:
1. What does the tenancy agreement say on mould growth – you should have sent copy signed by tenants to adjudicator
2. What was the state at check-in – you should have sent adjudicator dated photographs as part of an (ideally independent) inventory and schedule of condition report.
3. What was the state at check-out – you should have sent adjudicator dated photographs as part of an (ideally independent) check-out report.
4. How much will it cost to return the decoration to per-tenancy state – you should have sent adjudicator independent quotation for work. Additional evidence about the age of the decoration may have supported your case.
Tom