How ADR works in tenancy deposit disputes

I'm not a legal expert, however as I pointed out in the other thread (Buy to Let anguish) I don't think that it is as simple as saying that "the other party win by default".

For example, the landlord owes the deposit money to the tenant at the end of the tenancy unless the tenant agrees otherwise, a court decides otherwise, or the ADR's adjudicator decides otherwise.
But the scheme and the adjudicator have no authority to decide unless the tenant specifically agrees to it.

Therefore, IMHO if the tenant refuses ADR or does not reply to communication he still has a claim to the deposit in court against the landlord for the next 6 years even if the scheme decides that they will not hold on to the deposit for ever.
Ie. the landlord has better keeps all records handy to prove his case during that period and/or make sure to include relevant clauses in the tenancy agreement (if possible. that's one for a lawyer).

Reply to the comment left by "Romain " at "15/08/2013 - 15:13":

You are right of course no one can take away a tenant legal rights. The fact that the landlord would have the ADR in his favour & that the tenant chose not to take part in a scheme, that was put in place for his protection and to prevent the need for him to pay for legal action, would not help his case.

In my experience the tenants who disappear are those who know that they have no money to come back from the deposit - why would a tenant walk away from several hundred pounds?

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Reply to the comment left by "Mary Latham" at "15/08/2013 - 15:30":

I don't think that we can say that the landlord would "have the ADR in his favour": The ADR would just have sent the money back to him as it would have nothing to decide on.
So I think that this would have very little impact on a court should the tenant decide to sue.

Of course I agree that tenants disappearing in such way likely know that liable for something. My point is that landlords should keep records of everything because if the tenant suddenly gets back at the landlord 5 year down the line and the landlord no longer has evidence, he'll likely end up in a tight place.

Reply to the comment left by "Romain " at "15/08/2013 - 15:47":

I could not agree more the shell that protects the exposed backs of landlords is made up of the many layers of paper that prove us innocent.

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Read your links Mary, well 2 of them, but they do not seem to validate you assertion that if a landlord does not take court action within X months the deposit will be returned to the tenant by default. If the landlord fails to respond to the scheme - then yes that is possible, but not if he does respond with "no I don't agree to ADR". If my understanding is wrong - tell me - but as I see the situation right now this is the scenario:

I can not check DPS because the site is down, but I know that if a dispute is lodged the deposit will be frozen until ADR or court action results in a decision. A continuing theme through this post though is that the landlord is not obliged to be the one initiating the legal action and unless the landlord has a watertight claim, the tenant has more impetus to commence a claim than the landlord.

I accept My|Deposits state that the landlord must notify the scheme whether they want to use ADR or the Courts, but it does not say that the landlord must be the one initiating court action.

TDS state that the landlord must make a decision whether to use ADR or the courts, They will take a landlords silence as an acceptance of ADR but again, he can say to the tenant “sue me”, the scheme places no obligation on the landlord to commence proceedings.

Likewise Capita will take a landlords silence as acceptance of ADR.

I accept in all 4 schemes that if ‘court’ is chosen then the landlord will not see any deposit money until a court makes a decision, so it is in the landlords interest for court proceedings to take place, but that does not mean he is obliged to commence those proceedings. However, with the insurance based schemes what is there to stop a rogue landlord just not submitting the deposit to the scheme once a dispute is lodged? Not a lot. What can the tenant do other than sue? Ok, the scheme would probably refuse to protect any future deposits but there are always other schemes.

Why would a landlord be willing to leave a disputed deposit with a scheme? Let’s assume relations between landlord and tenant have not been good. Then let us assume we have the time to take a psychology degree.
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The burden of proof is on the landlord fine if that burden of proof is reasonable but that depends on the terms of reference that the adjudicators are required to abide by
Simply put if you allow me to fix the terms of reference i will rig the outcome" any outcome you want"
case in point
A landlord brought this case to me one female tenant 1 bed flat brand new bed at start of tenancy at end of tenancy badly soiled bed so bad it had to be replaced landlord told tenant they would be charged tenant admitted soiling bed agreed to pay
After talking to her pals changed her mind wanted to go adjudication landlord agreed thought he had nothing to fear
Landlord did all the right things full check in check out inventory lots of photos invoice for bed at start of tenancy proof bed was delivered invoice for new bed landlord even kept old bed as evidence open and shut case you may think i tenant 1 bed 1 flat oh no
Tenant not required to say where she slept or even if she had not slept for the full year of the tenancy tenant not required to prove anything tenant simply wrote let landlord prove i slept in that bed tenant won
As we all know the only way the landlord could prove that female tenant had slept on that bed would have convicted him of harassment and had him placed on the sex offenders register
Any fair reasonable and just procedure would have looked at the balance of probability and asked the tenant where?they were sleeping or how they managed to go without sleep for a year they may even have asked how a brand new bed that had not been slept on for a year got so badly soiled
Not the ADR
As I said those who fix the terms of reference and burden of proof fix the outcome

I think we have to accept that courts and ADR sometimes don't make decisions we like.

Earlier this year I was in court against an ex tenant who had left mid-fixed term seeking just short of £5k in rent and damages.

I think I am reasonable and I think I know the law. I walked out of that court room with a victory of £164. Roughly the cost of my petrol.

I know the judge was wrong, I had case law he ignored, he dismissed a claim against a guarantor for no reason and he didn't question me on a single piece of my comprehensive evidence. He just didn't like me - Mr Nasty Landlord. This was an LHA property and his main comment was along the lines of "it wasn't perfect when they moved in" - no but it had had a new kitchen, new carpets and £2k of exterior work done since then.

I couldn't be bothered appealing as T was on LHA and principle had already cost me enough.

I don't write this as a 'woe is me' but just an illustration that no matter how watertight your evidence is in any scenario - things don't always go as you expect.

..am I getting the impression that the overwhelming opinion of landlords that have experience of ADR is that it is not worthwhile, is likely to go against them and a landlord should instead refuse and opt for court action?

Unfortunately most cases go exactly as I expect
But I dont expect justice

Yes the advantage of court action is you can look them straight in the eye whilst you are being shafted