Helpful Tips Suzy Hershman 02/03/2021

Using photographs and videos as dispute evidence

Recently, NRLA deposit protection provider, mydeposits, wrote about property inventories and the importance of having one that is honest, comprehensive and above all, clear. We touched on the benefits of including supporting photographs and videos in your document. This guide covers the subject in much more detail, so that when you come to put together your next inventory, you’ll understand why including visual media is so important and, how good – and relevant – images, can make all the difference if you need to rely on them to resolve end of tenancy negotiations and disputes.

This guide will cover:

  • Why you should use photographs or video to support the written inventory
  • What you should photograph or record at the beginning and end, of the tenancy
  • Safeguarding the reliability of the images or video
  • A case study showing the importance of photographic evidence

Why use photographs and video to support the written inventory

Even in this digital age, there are still landlords, managing agents and inventory clerks who choose not to use photographs in their inventories. This may well be because they’ve never had an inventory issue arise. But, as the old saying goes, ‘It’s better to have it and not need it than not have it when you need it.’ In fact, visual content is more important than ever.

As a landlord, you will be aware that good quality photographic and video evidence is vital to help you demonstrate the extent of any damage or deterioration to your rental property during, and particularly at the end of a rental period. If you feel that it is reasonable to make a claim at the end of the tenancy, for things like cleaning, damage, or redecoration, then photographic or video evidence will assist in your negotiations with the tenant. In the unlikely event that you and your tenant cannot agree on the proposed costs and you need to use an alternative dispute resolution service, you will need to provide supporting evidence to an impartial adjudicator to support your claim.

What should you record at the beginning and end of the tenancy?

At the beginning of the tenancy, you should take time and date stamped photographs or a video of each room within the property and relevant outside areas. The video should clearly show the current condition and any existing damage or wear and tear. Video evidence can be beneficial in covering a wide area within the property in a short space of time and helps give an overall impartial view of the property. Photographs can, in some cases, be used to show greater detail and it is just a matter of preference which method you use. Please see the section below on quality. On check out, video and photographs should clearly show changes to the property including any deterioration and damage and should be taken from the same angle as those in the check-in inventory.

From carpets to gardens, if a landlord is proposing a cost to make good, it will usually be because they are stating that the condition of the property at the end of the tenancy, is worse than it was at the beginning. Remember to concentrate on any areas in the property you know cause issues which may lead to negotiation or a dispute at the end of the tenancy.

Quality

As you’d expect, good quality photographs or video are vital when negotiating with your tenants or painting a clear picture for an adjudicator. Make sure your photos or video are taken in good lighting with a high picture resolution. This is particularly important if you are taking video footage on a digital camcorder or mobile phone, as lighting and clarity can vary considerably. If you intend on printing the images, then make sure you use a good quality printer and date stamp the image.

Scale and referencing

It is good practice to give an indication of scale of any images you take, using household items such as a ruler or a pen, or even a foot or a hand! It is also helpful to have a referencing system within your inventory report where photos can be numbered and paired with the written description and level of cleanliness in the property.

Safeguarding the reliability of images and video

Photographs or video, especially in a case sent to an adjudicator, will need to be authenticated to show the date they were taken if they are provided separately to a dated written inventory. Photographic or video evidence should be date and time stamped so that an adjudicator can verify when it was taken. Best practice is to embed photographs into the inventory report and to get a signature from the tenant at the start and end of the tenancy to confirm their agreement. If photographs taken at the start are not embedded or date and time stamped, you should ask your tenant to sign and date each photograph to verify the detail. At the very least, you should make sure you can provide evidence that the tenant has seen the photographs or video, such as an email with the attachments. Video footage can also have the date shown digitally on the screen. For photos and video, familiarise yourself with how to use the devices before you start to record your evidence. Check they are set to the correct date and automatically date the images before you start.

If you are relying on your computer’s properties page to show the date the photograph was taken, you should provide a print screen image of the properties page as the date may be lost during the file upload.

Note: While we accept date stamping can be manipulated, it is not for mydeposits to police this as it is rare and a tenant always has the option of taking the landlord to court for such practices. Having the tenant present at the check-in and subsequently signing to their attendance and agreement is best practice, but not always possible and certainly not in the current COVID-19 climate. A better solution is for you, or your inventory provider to send the prepared inventory to the tenant on the day of check-in, giving them up to seven days to confirm and agree or amend the detail, in writing.

Relevant and referenced

Although it is helpful to take photographs of the whole property at the beginning of the tenancy, an adjudicator only requires evidence which is relevant to the issue in dispute, so only submit those that support your claim. If you are submitting video evidence, make sure that you reference the time in the footage that is relevant to your case. This is important to make sure your case is dealt with quickly and helps to clearly highlight the issue to an adjudicator.

Dispute example – Garden maintenance

Garden maintenance is an issue often disputed because the tenant’s responsibilities are not always clearly defined. Plants and weather conditions are an added complication.

The example below is taken from a mydeposits dispute case; it highlights the importance of having digitally dated photographs to fall back on if needed as evidence, even if you don’t have a comprehensive inventory.

Disputed amount: £155 for garden maintenance at the end of the tenancy.

Landlord claim: The tenant hadn’t carried out the garden maintenance as agreed in the tenancy agreement before vacating the property. They were therefore in breach of the tenancy agreement and the landlord proposed a deduction from the deposit to carry out the necessary maintenance.

Tenant response: The tenant said that the weather was rainy for two weeks before the end of the tenancy and so they were unable to do any work in the garden during that time.

Evidence provided:

  • The adjudicator was not given an inventory or any photographic evidence of the condition of the property and garden at the start of the term. However, the landlord did provide an invoice from a garden maintenance company for £169.00 dated three days before the start of the tenancy. The adjudicator was also provided with an invoice for £155.00 for garden maintenance at the end of the tenancy
  • The landlord provided digitally dated photographs which were taken within two days after the tenancy ended, showing overgrown grass, rubbish on the lawn and weeds in the flower beds

Adjudicator’s decision-making process:

  • The adjudicator took into consideration the time of year the tenancy started and ended and the maturity of plants
  • Because of the pre-tenancy invoice the adjudicator was satisfied on a ‘balance of probabilities’ that the garden was in a good condition at the start of the term
  • While no inventory or check-out report was provided, the adjudicator was able to decide from the evidence that the garden was in a good condition at the start of the term and maintenance was required at the end. Therefore, the adjudicator held that the tenant breached the tenancy agreement by returning the garden in a worse condition than at the start of the term

Award:

Landlord: £155. The adjudicator found that this amount was reasonable, considering the amount spent on garden maintenance at the start of the term.

Learning points:

  • Keeping receipts for anything you’ve purchased or work you’ve had done is vital
  • An adjudicator will accept that an invoice dated within a week of the start of the tenancy provides evidence of the condition of an area at the start of the term Similarly, at the end of the tenancy a detailed invoice or estimate is good supporting evidence of the work needed to rectify a problem
  • Digitally dated and comparable photographs carry a great deal of weight
  • Adjudicators prefer detailed and comprehensive inventories and reports to accurately compare the condition of the property at the start and end of the tenancy
  • It’s important to remember that photographs can only tell part of the story and should not be relied upon exclusively if you end up in a formal dispute. On this occasion the adjudicator ruled in the landlord’s favour due to the dated photos
  • The written inventory and photo or video evidence should be complementary; one should not replace the other

More tips for photos and video as evidence

  • Visual proof strengthens any negotiation  and gives a clearer idea of what kind of damage or deterioration has occurred
  • Photos and video shouldn’t be used as a replacement to a written report but rather to substantiate the written detail. Photos must be time and date stamped, particularly where not embedded into a report, otherwise they cannot be verified and should, where relevant, represent scale and indicate location
  • The devil really is in the detail and without it, landlords expose themselves to the risks of losing a dispute
  • When providing video as evidence, make sure you reference the exact start and end times you would like the adjudicator to see. Adjudicators will not be able to watch large amounts of video content that is unrelated to your dispute
  • Where possible both landlord or agent, and tenant should sign and date the inventory report to confirm they have seen the whole report, including photos
  • As well as recording any existing damage and wear to the property, it is a good idea to pay extra attention to the condition of key areas or items that regularly come up in disputes such as counter tops, appliances, carpets, and any soft furnishings provided

Things can go wrong no matter what precautions you take. The existence of a quality signed inventory that contains relevant photographic or video evidence will assist you in a dispute but, should things escalate, our tenancy deposit partner mydeposits operates a tried and tested dispute resolution process. Read more about them here.

NRLA members get a 30% discount on the deposit protection fee when they protect a deposit with the mydeposits insurance-based scheme in England and Wales.

Suzy Hershman

Suzy Hershman Head of Dispute Resolution, mydeposits

Suzy Hershman has worked at mydeposits for over 12 years, embracing every opportunity to share her extensive experience and knowledge by building relationships, listening and asking questions to find out what people want and need from us, whilst educating best practice.

As a government-authorised scheme, mydeposits has protected deposits in England and Wales since 2007 and we are the only scheme which runs licensed schemes in Scotland, Northern Ireland and Jersey. With over 150,000 members, mydeposits is the preferred deposit protection scheme for landlords in England and Wales. We have combined our years of experience with invaluable member feedback, to create an insurance based scheme that legally allows you to keep control of the deposit and a custodial scheme, where you hand the deposit to us to safeguard for the length of the tenancy.

See all articles by Suzy Hershman