This month’s case looks at a claim made by the landlord against the tenants’ deposit for re-filling of an oil tank at the end of the tenancy.
The landlord stated the oil level was full at check-in, but half full at check-out. The evidence presented to the adjudicator by the landlord included a tenancy agreement, a check-in report, an undated photograph taken of an oil gauge and an invoice for replacement oil.
The tenant’s response
Contrary to the landlord’s position, the tenants said the oil was returned to a similar level at check-out as at check-in. They stated they had ordered a top-up of oil that was delivered two weeks before the tenancy ended. The tenants presented an invoice to support their comments showing the date on which the oil had been delivered to the property, the number of litres and the cost.
The tenants also said that they were disappointed that certain repairs were not carried out by the landlord during the tenancy, including the washing machine, and that they wished to claim against the landlord for a sum of money for the inconvenience caused.
For the landlord’s claim to be successful, the landlord needed to be able to show the tenants had an obligation within the tenancy agreement to return the property at the end of the tenancy, with the same level or amount of oil that was present for the start of the tenancy and that the tenants’ failed to do so, resulting in a breach of their contractual obligations causing the landlord to suffer a financial loss.
The outcome
The adjudicator was satisfied that the tenancy agreement terms required the tenants to return the oil to the same level at the end of the tenancy as at the start. The adjudicator accepted the check-in report, which confirmed the oil level was full at the start of the tenancy, however, as the landlord had provided an undated photograph showing the oil level when the tenants left, which the tenants disputed, it was unreliable evidence. The date on which the photograph was taken was unknown.
In addition, the tenants also evidenced that the oil tank had been refilled shortly before the end of the tenancy. Without reliable evidence of the oil level at the end of the tenancy, it was impossible to determine how much, if any – given that it was the summer months – of the oil refill had been used. An award could not be made.
So, what are the key points here?
+ A deposit is taken as security for a breach of a tenant obligation. An adjudicator is unable to consider a counterclaim. Here, the tenants claim for a breach of a landlord obligation in relation to failing to repair the washing machine.
+ If a tenant wishes to pursue a counterclaim, then they should do so by other means and may wish to seek independent legal advice.
+ Whilst the tenant may have a contractual obligation at the end of the tenancy to return oil to the same level it was at the start of the tenancy, it remains the responsibility of the landlord to demonstrate, with robust documentary evidence, that a term of the tenancy agreement has been broken and that a financial loss has been incurred.
+ A comprehensive check-in and check-out report to include embedded photographs of the oil gauge as part of the inventory would have shown a comparison of the level of the oil for the start and end of the tenancy.
+ To be useful as evidence, photographs must be date stamped and clearly labelled. If this evidence had been provided by the landlord to support the claim for this case, the outcome may have differed.
If you are interested in further guidance relating to deposit disputes, visit the Information Lounge at TDS to browse further guides.
Sandy Bastin, is head of adjudication services at Tenancy Deposit Scheme (TDS), the only not-for-profit tenancy deposit protection scheme.
