This new case looks at a claim for utility charges related to the use of a shared heating and air conditioning system provided in an apartment.
The amount of deposit in dispute was £900.
Under a ‘specially negotiated’ clause in the tenancy agreement, the tenant was responsible for the payment of heating and cooling charges for the apartment.
The clause set out that the landlord was entitled to “…retain a portion of the deposit towards pro-rata charges incurred for the usage of heating and cooling”.
The agent explained that the ‘bill’ was yet to be provided by the apartment block managing agents, and this was attributed to “installation, metering and commissioning issues”. In the absence of a bill the agents proposed an estimated cost of £900.
The tenant disputed the amount claimed, stating they did not use the heating and cooling system throughout the whole tenancy and proposed that £200 was a fair “portion” of the deposit to be retained.
The adjudicator considered that given the agent’s estimate was made in the absence of any billing information or other evidence to justify it, they were unable to establish that it represented a fair sum in relation to the tenant’s likely usage of the heating and cooling systems.
The adjudicator accepted that a “portion” of the deposit should be awarded to the landlord in accordance with the terms of the tenancy agreement. However, in the absence of any evidence to justify what that sum should be, the adjudicator concluded that the tenant’s offer was a reasonable ‘portion’ in all the circumstances.
So what are the key points here?
TDS considers that a specially negotiated clause in a tenancy agreement generally places an absolute obligation on the tenant.
However, the precise wording of the clause needs to be carefully considered and the adjudicator is still able to judge the reasonableness of the amount claimed.
This case highlights the importance of justifying amounts sought from a deposit even when the tenant’s obligation is otherwise considered absolute.
Another recent case looks at a claim made by the landlord against the deposit for re-turfing a lawn following damage caused by a leatherjacket infestation.
The amount of deposit in dispute was £500.
During the tenancy the tenant reported (to the agents) there was an ongoing issue with the rear lawn which the tenant eventually addressed by arranging for a leatherjacket infestation to be treated and the lawn reseeded.
However, the seed failed to germinate and at the end of the tenancy the landlord claimed to have the lawn re-turfed.
The landlord looked to rely upon the tenancy agreement which in addition to obligations requiring the tenant to keep the garden in good condition also placed a responsibility on the tenant to take all reasonable precautions to prevent infestations on the property and to pay to eradicate any infestation caused by ‘negligence’.
A report from a lawn expert advised that the seed was failing to germinate due to a lack of sunlight (the garden was heavily shaded) but confirmed there was no presence of the larvae to be found.
The check-out comments did not identify any issue with the lawn, reporting only that it had been seeded.
The adjudicator was satisfied the tenant’s actions were likely to have eradicated the larvae but that the lawn was left bare as the grass seed did not respond due to a lack of light.
The adjudicator considered this was not within the tenant’s control and that there was no evidence to show that the infestation which ultimately led to a problem with the lawn had been caused by the tenant’s ‘negligence’.
As the deposit serves to compensate the landlord for breaches of the tenancy agreement by the tenant, the adjudicator made no award to the landlord for re-turfing the lawn.
The evidence showed the lawn deteriorated during the tenancy and the landlord looked to remedy their financial loss by reliance on the provisions of the tenancy agreement.
However, the tenant tried to deal with the lawn problem in that they took action to eradicate the leatherjacket larvae and attempted to reinstate the lawn by re-seeding it.
The evidence showed that the fact the seed did not grow could not be reasonably attributed to the tenant.
The adjudicator considered the tenant’s actions were reasonable and ‘tenant like’, with no evidence of any ‘negligence’ on the tenant’s part or clear breach of their obligations under the tenancy agreement.