#ExpertView: The importance of checking your tenancy agreement

• Regularly check tenancy agreements to ensure consistency
• Ambiguous evidence could affect the outcome of the claim

John King, Head of TDS' Member Services, re- visits a recent report of adjudication to explain the reasoning behind the decision. In this case, the agent proposed a deduction from the tenancy deposit to cover the payment of the check-out fee, referencing a clause in the tenancy agreement which outlined the tenant’s responsibility for this payment.

The tenant disputed the deduction because an alternative clause in their tenancy agreement required the check -out fee to be paid by the landlord. They also argued that the clause did not specify an amount and they could not be required to pay a charge for an undisclosed amount. [The tenancy contains clauses about related fees that the tenant may be due to pay and was entered into before the 1 June 2019 and the tenancy ended before the 31 May 2020; the deduction request was considered considering the requirements of the Tenant Fess Act 2019.]

The agent countered the letting agent’s argument about the proposed deduction by stating that the two clauses taken together meant that the landlord and tenant should pay half each. The evidence provided by the agent included an invoice from the inventory clerk which matched the sum that was being claimed from the deposit.

As the tenancy agreement required both parties to pay, it was deemed to be ambiguous and the adjudicator could not conclude with any certainty that the obligation to pay the check-out fee in full was the tenants.

As a result, no award was made to the letting agent.

This case highlights the importance of all parties checking the tenancy agreement to ensure consistency and clarity. The natural path of a tenancy deposit is to be returned to the tenant, the responsibility is therefore on the landlord or agent to provide enough evidence to prove that a loss has been suffered and any relevant deductions should be awarded. If the tenancy agreement is ambiguous, this may well stop a landlord or agent from successfully claiming from a deposit.

About TDS:
Tenancy Deposit Scheme (TDS) is a government approved scheme for the protection of tenancy deposits; TDS offers both Insured and Custodial protection and also provides fair adjudication for disputes that arise over the tenancy deposits that we protect.

We provide invaluable training in tenancy deposit protection and disputes for agents and landlords through the TDS Academy as well as joining with MOL to provide the Technical Award in Residential Tenancy Deposits.

TDS Insured Scheme: where a TDS member can hold the tenancy deposits as stakeholder during the term of the tenancy.

TDS Custodial Scheme: where TDS hold the deposit for the duration of the tenancy.

TDS Academy: TDS provides property professionals with invaluable training in tenancy deposit protection and tenancy deposit disputes.

TDS can only comment on the process for our scheme, other deposit protection schemes may have a different process/require different steps. Content is correct at the time of writing.
These views are those of the author alone and do not necessarily reflect the view of TDS, its officers and employees.