Here is a question to the blog clinic from Ivan who is a landlord:
The DPS adjudicator ruled that as I sold the house some months after a tenant left I had made no loss. They returned all the deposit to the tenant who had damaged the house to the tune of £1850.
Surely their ruling should have been made to reflect the house state at the point of the tenant leaving and not what happened after this date?
My agent had failed to tell them that I had to make a substantial reduction in the asking price to allow for the damage as they did not think it relevant.
The DPS will not talk to me only my agent and they will not talk to me (probably because they know they were negligent).
The ombudsman has closed the case without answering my question as he believes the agent was not negligent. Where do I go now?
Tenancy deposit adjudications were set up to be a quick and easy solution to disputes over deductions from the tenancy deposit – but they still work in the same way as a court claim.
Basically you need to prove two things, by evidence. The two things are
- Liability and
In a tenancy deposit claim situation liability generally proved by the check in and check out inventories showing a deterioration in the property between the time the tenant moved in and the time he moved out.
It has to be clear that this deterioration is down to the tenant and that it is not down to fair wear and tear. Presumably you are able to do this, so your issue is with the second item.
This is the (reasonable) loss you have suffered as a result of the damage which you have shown was caused by the tenant.
In most cases this is things like the cost of replacing damaged items or repair work. This will be proved by the landlord providing receipts and estimates for the work or cost of replacement items.
However in your case your loss is the reduction in the selling price that you were able to achieve for the property.
Others may disagree here, but I don’t see why you should not be entitled to claim for this. It is after all a financial loss you have suffered as a result of the tenants breach of contract – which is what the deposit is for.
Provided you are able to show that your losses did actually flow from the tenants damage to the property and that the reduction in price was not down to some other reason – such as market fluctuation.
The only problem is – your agents did not tell the adjudicator about the drop in sale price.
Adjudicators are not mind readers. They can only make their decision on what they are told. So if your adjudicator was not told that you were forced to reduce the sale price, he will not have been able to take account of this when making his decision.
Hence the return of the deposit to the tenant.
The agents liability
If your agents were aware of the drop in the sale price, I think this is something that they should have told the adjudicator. I can see why they didn’t do this, as it is a bit out of the ordinary and it is not what they are used to.
However I suspect that if the adjudicator had been told that you had to drop the sale price and was given some evidence to show that this was directly due to the damage done by the tenant, there is a chance that he would have allowed at least part of your claim.
So I think it is something your agents should have done.
You mention an Ombudsman – I am not sure who you mean here. If you are referring to a claim by you to one of the statutory Ombudsman services such as the Property Ombudsman or the Property Redress Scheme, then it is hard to comment on whether their decision was right without seeing what you told them.
However my view is that if your agents were aware of the drop in the sale price at the time, this is a material fact which they should have included with their submissions to the adjudicator, and that their failure to do so will be a legitimate cause for complaint on your part.
As to where you can go now, there is always the option of bringing a claim in the Small Claims Court. You would then also be able to claim for more than the deposit sum (if your losses were greater than this).
Whether you will actually want to do this however will depend on whether you want to go through the stressful business of bringing a court claim, and also (very importantly) whether you think your former tenant has the resources to pay such a claim. You will also need to have his current address.
Your claim will also be less straightforward as your losses are the drop in sale price rather than the actual cost of repair or replacement, so will not be an easy one to bring.
You should therefore take legal advice before you do anything.