Only 3 scheme administrators have been approved to operate authorised tenancy deposit protection schemes in Northern Ireland. Each of these has a Dispute Resolution Mechanism in place to deal with any disagreements that arise relating to the deposit at the end of the tenancy.
The dispute service must be free to you and your tenants.
Most landlords and tenants will want to avoid disputes over the deposit as these may take quite a while to resolve. The best way to avoid a dispute happening is by having professional procedures in place and making sure your tenants are aware of their legal responsibilities.
At the start of any tenancy it's in the best interest of you and your tenant to take a full and detailed inventory of each room in the property. Make sure you and the tenant agree on the inventory and take photographs. The difference between this inventory and your end of tenancy inventory will be the basis of any deduction for damages you make from the deposit.
When you know that a tenancy is ending, either because you’ve given or received a Notice to Quit or because the term is due to expire, you should write to the tenant reminding him or her of the deposit and the circumstances under which you can keep this money. This will allow the tenant an opportunity to address any arrears or make good any damage in the property. It will also remind the tenant that he or she has obligations and failing to keep to these could lead to a financial penalty.
Remember that you cannot make deductions from the deposit for wear and tear and you cannot profit from a deposit. This means that you can’t replace an old sofa with a brand new sofa and expect the tenant to foot the bill. You must take into account how long the tenancy was and the standard and lifespan of any furniture or fittings provided. When making deductions for damaged items, remember you have to do this on a like for like basis. You can’t bill the tenant for a brand new washing machine if the one that was damaged was four years old. In this case, you could perhaps bill the tenant for what you would expect to pay for a second hand machine or a proportionate cost of a new machine.
Make sure your tenant is invited to the check out inspection and try to arrange this for a time that suits him or her. If you see something that you think merits a deduction explain your case to the tenant and make a note of his or her response. Only make a deduction if you genuinely believe it is fair to do so
If the deposit is protected in an insurance based scheme you should hand back whatever amount you feel the tenant is entitled to as quickly as possible. Your tenant may be relying on this money to help pay rent in their new property.
If there’s a dispute the adjudicator will want to see evidence from both sides to support their claims.
As the deposit money belongs to the tenant the burden of proof will be on you. You will have to convince the adjudicator that you have suffered financially because the tenant did not carry out his or her obligations. The adjudicator may dismiss anything you say which is not supported by documentary evidence.
The following items could be helpful to your claim
- proof of unpaid rent, e.g. bank records that show missing payments or letters sent to the tenant relating to arrears
- detailed photographic inventories at the start and end of the tenancy which show damage to property
- a tenancy agreement which contains clauses which the tenant did not adhere to
- invoices or receipts for items you have had to replace
There are certain costs which an adjudicator may not allow you to deduct from the tenant’s deposit. For example, any business fees associated with being a landlord, such as insurance or estate agent fees. The adjudicator may also want to be satisfied that the costs of services, such as cleaning, are realistic and not excessive.
The Tenancy Dispute Service publishes a helpful monthly digest which includes details of decisions made by its appointed adjudicator.
The adjudicator should make a decision within 20 days of receiving the referral. After looking at all the evidence the adjudicator will decide how the disputed amount should be divided between the parties.
Within 5 working days of making the decision the adjudicator must write to the landlord, tenant and scheme administrator setting out
- the facts of the case
- the reasons for the decision and
- the amounts to be repaid to the landlord and the tenant.
If you, or your tenant, feels the adjudicator has made an error relating to the facts or the law you can ask for the decision to be reviewed. You must request a review within 10 working days of receiving the original decision.
If your request for a review is rejected you may wish to take legal action to recover any money you feel you are owed by the tenant. Before deciding to do this you should think carefully – the court may agree with the adjudicator’s decision.
Tenant can’t be contacted
It may happen that the tenant leaves at the end of the tenancy and does not provide a forwarding address. If the tenant is genuinely not contactable what happens to the deposit depends on the type of scheme.
If you used a custodial scheme, the administrator will hold any amount that is due back to the tenant until it is able to contact the tenant or the tenant contacts the scheme.
If you used an insurance scheme you can hold on to the money until the tenant contacts you. If an agent is holding the deposit for you the agent may wish to hold on to the tenant’s money for an agreed period of time or ask you to enter into a binding agreement that you will pay the tenant back the deposit if he or she contacts the agent.
The scheme administrator will have a cut off date after which the tenant can no longer raise a dispute. As the deposit money is the tenant’s he or she will have up to 6 years to ask a court to award the money back. After this time it will be statute barred.