Here is a question to the blog clinic from Jane who is a tenant facing a tenancy deposit claim
I am trying to find out if what my agent has done is legal. I left my rented property a week ago and they did a check out inventory about 3 days after I left. They then said it needed cleaning (it was pretty much immaculate when I left it) and so I disputed this.
They told me I had no right to dispute it and that it needed a professional clean, which it does not state in my contract. I requested to go to the property with the manager so that I could see what they were talking about. They refused saying I could not re-enter the property.
The manager refused to discuss it further with me, and said if I continued to dispute it they would add further charges. I opened a dispute with the deposit holding company as I felt I had no choice.
I have today received a new check out inventory, changed dramatically from the first one, with a new list of charges to more than double what they wanted originally. This is to include apparent damage to the property not listed on the first check out inventory.
So my question is, is it legal for them to redo the checkout inventory and add loads to it after already doing one and sending it to me?
These additional things were not noted on the first checkout inventory and were not there when I left the property. These things could only have been done (if they exist) after I left and the first check was done, as I had no access to the property after my checkout date.
This is a big company by the way, not a little tiny one, so its pretty shocking.
Answer
To bring a tenancy deposit claim against you, the agents must prove that the damage has been done and has been done by you.
The normal way this is done is by having a checkout and check in report – you are responsible for any damage apparent from the difference between these two reports.
It sounds as if you will have a good case to dispute this claim as your initial check out report does not show any damage.
You should challenge their claim to the tenancy deposit scheme and make sure you send a copy of the first report to the support your claim.
In your submission, make it clear that the other report was prepared after you vacated, and that if it is correct, the damage it shows must have been done by someone else.
Unless the agency have a very good reason for producing such a different report and have other evidence to tie the additional damage to you – and I don’t see how they can blame you for the damage. Particularly as you can show you were not allowed into the property. Make sure you send the emails about this to the adjudicator with your submission.
I also think that this is something you could bring a complaint about to the agents Property Redress Scheme. Tell the agents that you will be doing this if they do not withdraw the second report.
It’s not unusual for tenants and agents to have a different definition or undersating of ‘cleanliness’.
However, the agent certainly cannot produce an entirely different check-out report just to support their claim.
From what you have said and assuming you have the contradictory reports to back it up, I cannot see how the adjudicator would find in their favour.
There is nothing to worry about here and Jane has little to worry about compared to the agents who quite clearly are involved in the inventory equivalent of fraud.
Anyway all three schemes are on record, especially TDS, as saying any claim for deductions without a check-out report signed by the tenant as present will be viewed with great suspicion (as the agent can say what they like).
Any agent that does not check a tenant out of the property with the tenant physically there is asking for trouble. If the tenant signs away their rights to be present or has abandoned the property that is a different matter.
But any claim where the tenant was not present, could have been and didn’t realise the importance of attending the Adjudicator will side with the tenant.
This is why you must always use an independent and therefore impartial inventory clerk.
Agreed. Our tenants rarely bother to attend and sign check-outs. We use independent clerks so it’s not a problem.
What if the agent did a quick report of their own, and then when the tenant disputed it, got a detailed independent report done?
Assuming it’s being disputed, any damage would have to have been been noted in the orignal report, whether it was a ‘quick’ one or not. The second, independent report wshouldn’t be significantly differenet. Either way, it points to inconsistencies and bad practice by the agent.
If there was also a significant time gap, the tenant could claim the damage was done after they moved out.
What’s also important here is the actual condition of the property at the start of the tenancy and how long a tenant has been living there.
Was there a full detailed inventory completed and agreed at the start of the tenancy?
Was the checkout report based on the initial inventory, taking into account normal wear and tear? Why was the checkout left for 3 days before completing?
There’s also the fact that tenants should be informed within 10 days of the amount to be deducted from their deposits and what it is for. Producing a 2nd report is unprofessional but its more than likely outside of this timescale.
With such a long gap between tenancy end and checkout being completed, workmen, agency staff, landlord and potential tenants could have been into the property.
Make sure you send in copies of all correspondence to the adjudicators. Include the initial inventory, tenancy agreement (if applicable) and copies of all e-mails and reports.
I’m sure the adjudicators will find in your favour
“There’s also the fact that tenants should be informed within 10 days of the amount to be deducted from their deposits.”
I agree it’s good practice, but this specific requirement was removed from the TDS rules in 2013 and the 10 day limit for inital notification of deductions is no longer a mandatory clause for inclusion in tenancy agreements.
Also, 3 days isn’t so long for a checkout. Could have been a weekend or bank holiday, or external clerk cancelled/busy/unable to attend.