Getting evidence ready for negotiation or resolution

This is the legal contract between the landlord and tenant and is very useful for negotiating. It should be fair, clear, concise and well worded. Remember that fair wear and tear is the landlord’s responsibility and tenants should remember exactly what their responsibilities are.

This is crucial for negotiating a cost or providing evidence for a resolution case. It should be a complete record of the property’s fixtures, fittings and décor, their condition and standard of cleanliness before a tenant moves in.

Reports should include photos and should be of good quality to make sure everything is clear and supporting the written detail. When it comes to video inventories, they must be clear and digitally dated. A tip to help an adjudicator is to highlight the time or section of the video which is relevant to the cost claimed.

An agent or landlord should always be able to provide proof that a tenant has seen and ideally signed the inventory at the time stated, and to confirm that the tenant has received a copy. Tenants should have taken the time to check it is correct and reply with any amendments within a short time of moving in. Inventories are there to protect all parties and their value should not be underestimated. You can read more about them in our guide, Inventories – the complete guide to the devil and the detail.

Top tip: This is the ideal document to list all the instruction manuals being provided to a tenant.

This should have been carried out, using the check-in inventory as the starting point, to create a quality comparative record of the condition of the fixtures, fittings and décor, and standard of cleanliness in the property after a tenant has moved out.

•If the differences at check-out were hand-written, the writing must be legible and written next to the item or area which is being discussed, as well as being dated. Photos can help paint an even clearer picture than words
•Both parties should have a copy of this report, all concerns should be highlighted, and tenants should be given a reasonable time to review it and consider any comments
•Where any concerns in the check-out report are raised and discussions take place at a mutually convenient time, it is our experience that this often leads to a resolution over costs without the issue progressing further. Remember to always follow up any verbal discussion in writing

Top tip: Remember, when considering negotiation or sending evidence for a more formal decision, landlords must make an allowance for fair wear and tear and consider all the criteria. Tenants should also consider and check their responsibilities as listed in the tenancy agreement and be reasonable when discussing any deterioration to the property.

See our guide, Fair wear and tear – what is it and how is it applied? to help calculate level of responsibility.

This will most commonly be emails and letters between the landlord, agent and tenant where, for example:

•the tenant has reported an issue and any discussions over what has happened, attempts to negotiate or agree costs are now requiring resolution
•a landlord or agent, and a contractor who is providing a report on the problem, offer expert advice or an estimate for repair or replacement

When done properly, these can offer valuable information on how the property was being maintained and if there are any issues which needed dealing with at the time or have been left until the tenancy ended. Where, for example, a tenant should have reported something, or a landlord was responsible for carrying out necessary repairs, showing how long it took to put right will all help build a picture for discussion.

Evidence relating to costs will only be considered when the evidence clearly shows that the tenant is responsible for causing the deterioration to the property. This evidence may be:

•invoices/receipts for anything the landlord/agent bought or did to the property before the tenant moved in
•invoices/receipts from all parties, showing the dates and timing for any work carried out during the tenancy
•invoices/receipts for work carried out after the tenancy ended
•estimates where the work has not yet been carried out. These will commonly be contractor emails, paper estimates, or website screenshots for replacement items

Top tip: Whichever documents are provided and whoever provides them, they should be detailed, explaining what has been done for the cost, as opposed to a one line invoice, such as, ‘end of tenancy clean’. This will help leave little margin for error, if the costs are reasonable, whether negotiating directly or if they are provided to us for an independent decision.

Where the detail is minimal and the cost is high, there is more chance of it being challenged, firstly by a tenant and secondly by an adjudicator where the evidence does not fully support the extent of the costs.

All of this evidence relating to costs will help to support any calculation of what proportion of the costs a tenant might be responsible for and what element of the cost a landlord may be responsible for, based on the fair wear and tear criteria.

All claims for bills, such as water, utilities and broadband should be supported by the calculation for the relevant tenancy dates and the service providers’ statements from the landlord or agent.

Top tip: It is worth mentioning that where these are in the tenant’s name, a resolution expert would be unable to make an award as the landlord is not a party to this contract. In these cases, the service provider will chase the tenant for any outstanding payment.

Accurate records of rent payments should be kept with any outstanding amounts clearly noted.

Landlords and agents should have a good rent arrears procedure in place, including written reminders sent to the tenant for non-payment. This is all good evidence and, in such situations, a tenant will be expected to provide proof of payment or good reason why the money is not still owing.

A strong relationship, with clear lines of communication between landlords, agents and their tenants is often key to avoiding an issue requiring resolution at the end of the tenancy. But in the event that it has not been possible to negotiate and reach a settlement, making sure you have legally compliant, fair and transparent documented evidence, as outlined in this guide, will be vital to supporting your claim.