ADR
The ADR system requires the Landlord or Agent to have collected evidence in order to satisfy the adjudicators that they have a justified case. The TDS is going to make it harder for the landlord to recover their disputed deposit without an independent and impartial report.
HOW WILL DISPUTES BE RESOLVED?
The TDS ADR system uses an electronic-based dispute scheme, meaning that there will be no hearing and the adjudicator will not visit the premises. Documentary evidence will be needed to be provided electronically i.e. over the net should a dispute arise. This will require precise and exact inventories, and possibly photographic or video evidence, statements, forms to fill in etc. Before this procedure was brought in, you just used to say, for example, that the tenant had broken the chest of drawers or not cleaned the property.
Similar evidence was required under the old way if a case ever got to court but in practice very few Landlords would bother to sue as the Tenant was always looked upon favourably. The ADR service is free but so bureaucratic that not many will opt to use it. Under the old system, if a tenant wishes to argue about what they consider was an unreasonably withheld deposit they would have to have used the county court scheme where they would usually receive a sympathetic hearing. The county court scheme has many faults but one is not being anti-tenant, the reverse is true, the court is as a whole anti-landlord as those of us who have had used it will testify. Even under the TDS landlord and tenant are still free to use the county court if they so wish.
NOTHING TO FEAR
Landlords have nothing to fear from using the ADR. Fortunately, the TDS has in one way proved an advantage for the landlord as it is not as anti-landlord as the county court. That there is no cost in using the ADR will encourage more tenants to use it compared to the county court is debatable.
With the TDS, the landlord will need to provide quality evidence should the tenant put up a valid claim and the matter goes to adjudication e.g. detailed inventories, photographic and / or video evidence. Also the adjudicator will expect the landlord to be more professional than the tenant in their handling of any case and in the quality of the evidence provided.
The scheme initially requires the tenant to prove that the landlord has unjustly withheld the deposit. With the county court, the judges are often inclined to believe everything the tenant says and landlords have to have evidence to disprove what the tenant says.
HOW DOES THE LANDLORD RECLAIM THE DEPOSIT?
With the custodial scheme, the tenant’s deposit is locked in until both the landlord and tenant agrees it is to be released. With the insured schemes, the rules state that any disputed deposit must be paid into the scheme. With both the custodial and the insured schemes, the expected path is that if both the landlord and the tenant cannot agree, then the matter will go to ADR and adjudicator will decide and the money is paid out. What both types of schemes are not clear about is what happens if the tenant abandons the property owing rent etc. or refuses to take part in the adjudication. With the insured scheme the only problem being the delay in getting the deposit back.
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