Deposits query

[Capt. Jon]

First off, great site. Some really useful information on here.

As the thread suggests i've having an issue reclaiming my deposit from my old landlady. There are a couple of things i'd like clarification on, but first let me explain the situation.

I moved into the flat in Oct 2004 with a friend. He moved out after 12 months and i took over the lease. When he moved out he took his share of the deposit (£245). I signed a new contract but landlady didn't want the deposit 'topped up'. At the end of the second 12 months we verbally agreed that i could stay on. I moved out at the beginning of Oct this year after mutually agree a shorter notice period (i wanted to move, she was happy as she said it was easier to get new tenant in Oct/Nov than in Dec/Jan). At no point during this three year period was an inventory taken.

Over the years i had created a small garden - two raised beds and some plant pots - that i couldn't take with me to my new place. So, i tidied it up and left it thinking the landlady would be pleased as on a number of occasions she said she liked it and enjoyed seeing it (she lives next door). At no point did she have an issue with the garden.

A couple of days after i moved out she left me a voicemail saying 'thanks for leaving the place clean and tidy'. However, yesterday (3 1/2 weeks later) i receive a letter and cheque. The cheque is for rent owed (i paid a full month but only stayed for half of that time) with no monies from the deposit. She claims that she is "within my rights to keep the desposit" because"

I have spent 2 days with David in the back yard cleaning out all the plants, dirty cloths, rusty barbeque and tons of soil – this made up 50 bags of rubbish…

and

...The cooker was filthy especially underneath and down the sides – all surfaces of the white goods were filthy and needed cleaning.

She has provided no evidence of the above and only a reciept for a skip (£75).

In response i have drafted the following letter, after reading the template provided on here:

Dear,

I am writing to you concerning my tenancy of the premises at ???? Street.

I request that you return my deposit of £245, as the premises were left clean and in good repair when the tenancy ended and no additional work, to meet the terms of the tenancy agreement, was required. Allowing for fair wear and tear, the premises were left in the same condition as they were in at the beginning of the tenancy (something you confirmed to me via voicemail shortly after I vacated the property).

The onus is on you to prove that there are circumstances justifying the retention of any part of the deposit, and to date you have not provided any such evidence – for example an agreed inventory affirming the condition of the property at the start of the tenancy and proof to the condition of the property at the end of the tenancy.

In addition, if you can provide the above evidence, to subtract monies from my deposit, you must prepare a dilapidation schedule, and you must have the relevant tradesmen give a written quotation (not an estimate) for each item of cost that you include in it.

You have done neither of these things and therefore I am in a position to demonstrate that it is unreasonable for you to keep any part of the deposit, should you be unable to produce the requested evidence and matters may proceed to court.

I require your reply to arrive no later than 14 days after the date of this letter, together with your cheque for any amount not in dispute. If I receive no satisfactory reply by then, I may begin a County Court action for recovery of my deposit without further warning.

The Court can order you to pay back the deposit, and the proceedings are very straightforward. Also, the Courts are very sympathetic to tenants whose landlords do not fulfil their statutory obligations.

I look forward to hearing from you within 14 days.

Yours faithfully,

- Am i right in thinking that without an inventory she cannot prove anything, even though i created a garden?
- does the fact we only had a verbal agreement for the last period matter for anything?
- am i in the right?

[Ed999]

Read this thread: http://www.consumeractiongroup.co.uk...eductions.html

[Capt. Jon]

Originally Posted by Ed999

Read this thread: http://www.consumeractiongroup.co.uk...eductions.html

Hi Ed999. I have read that thread, i was hoping for some clarification.

[Ed999]

Originally Posted by Capt. Jon

- Am i right in thinking that without an inventory she cannot prove anything, even though i created a garden?

No, you are wrong.

She can obviously prove that you created the garden, since (a) you admit it, and (b) she saw it herself, and so did her witness named David.

If the court decides it amounts to "damage", you will be liable for the cost of the repairs. This will depend partly on what the tenancy agreement actually says, including what restrictions on alterations to the property it contains, and whether you have breached those restrictions.

The point about the inventory is relevent only to proving damage inside the property. And it won't save you in the case of an intentional breach of an express provision of the tenancy agreement (if there is any such breach, as to which I cannot tell).

Originally Posted by Capt. Jon

- does the fact we only had a verbal agreement for the last period matter for anything?

No. The tenancy was automatically continued after the end of the fixed period, by the operation of the Housing Act 1988, as a statutory tenancy on essentially the same terms as in the original tenancy agreement.

You probably became a monthly periodic tenant, liable to termination by the landlord on the giving of two months notice.

This has no bearing on the issues you have asked about.

Originally Posted by Capt. Jon

- am i in the right?

That will depend on the terms of the tenancy agreement.

If the court decides your actions amount to "damage" to the property, you will be liable for the cost of the repairs. This will depend partly on what the tenancy agreement actually says, including what restrictions on alterations to the property it contains, and whether you have breached those restrictions.

You may want to consult a solicitor for advice on those matters.



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[Capt. Jon]

Thanks, just what i was after. In terms of clauses in the contract, the only clause about the state of the property reads:

when the lease period ends, to return possession of the property to the landlords, leaving the property in the state in which this lease requires the tenant to keep it

In terms of what the lease says about the state of the property

The tenants agree with the landlords:

...not to decorate, alter or add to the property nor anyone else to do so.

...to keep in good repair all parts of the property and all additions to it.

...to keep the inside of the property well and attractively decorated.

Does a garden, that she admitted to liking, count as decorating, altering or adding to the property? Is that clause not there to protect against permanent changes?

[Ed999]

The tenancy agreement contains a provision that the tenant shall not "decorate, alter or add to the property". That is a prohibition on alterations, and also a prohibition on additions.

Since, on the facts that you have stated, your actions appear to be both an alteration and an addition to the property, you appear to be in breach of two prohibitions in the agreement, not just one! It might be argued that you are in breach of only one or other provision, but that is still a breach of the terms of the contract.

In my opinion, a court would be likely to find you in breach of contract, and thus liable to pay the cost of remedying the breach.



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[Capt. Jon]

OK, probably in breach...although she only ever said positive things about it and never mentioned the garden when telling me the to leave the flat in.

She is also in breach as she didn't prepare a dilapidation schedule, as required by the contract. And she can't prove the cooker was in a worse state than when i moved in. Further, it wouldn't cost £245 to remove the stuff from the garden.

What would you recommend doing?

[Ed999]

Originally Posted by Capt. Jon

She is also in breach as she didn't prepare a dilapidation schedule, as required by the contract. And she can't prove the cooker was in a worse state than when i moved in. Further, it wouldn't cost £245 to remove the stuff from the garden.

The landlord is likely to produce a schedule of dilapidations if you take the case to court. You may be surprised how much a bill for labour costs and VAT for even a small amount of remedial work will come to.

It may be worth inviting the landlord to give you that schedule. Possibly, if you send a letter before action, worded suitably, you'll be sent it in return! Seeing it will give you further information to base a decision on.

You have the choice of whether or not to sue for the return of your deposit. Please read some of the other threads posted in this forum, in order to benefit from the experiences which other people have had in this repect.

Also, the thread I directed you to, above, sets out the factors you should take into account.

Consult a solicitor if you need advice. This forum is for sharing experiences, we can't provide legal advice.



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[MrShed]

I would slightly correct Ed above - the landlord is pretty much obligated to send you the schedule of dilapidations. At the bare minimum, you are entitled to all invoices/receipts/other proof of expenses for deductions.

On the one hand in this situation, on a purely legal sense, I agree with Ed that you have clearly breached the contract with regards the garden work. However, if you produce photos etc and show that you IMPROVED the garden, I suspect the landlord may struggle(although NOT find impossible by any stretch) to justify to the judge in a small claims court(who remember actually has quite a bit of discretion in these cases) why you should be charged to negate improvements. The proof of costs is vital in this case, as this is one of those cases where it is likely costs will be claimed, but then the remedial works not carried out.

[Ed999]

We will have to agree to disagree.

The landlord has no legal obligation to provide a schedule of dilapidations, in the circumstances described by the o/p, since the landlord is clearly not intending to sue but proposes merely to retain the deposit.

Unless the o/p forces the landlord's hand, he will not get to see a schedule of dilapidations. I am suggesting that it would possibly assist him, in deciding whether or not to sue for the return of the deposit, if he sees the schedule first.

Secondly, the o/p is clearly in breach of contract. We agree on that much, at least. In my opinion the court will certainly award damages (compensation) against him for the breach of contract.

Having breached the contract, it is NOT open to the tenant to argue that he has improved the property. He is forbidden by the agreed terms and conditions from altering or adding to it. The landlord is therefore entitled to restore the property to its original state, and to recover the expense of doing so from the tenant.



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[MrShed]

It is irrelevant. The deposit is not owned by the landlord. He must therefore, legally, justify any deductions he plans to make. However I agree, impossible to force this without suing.

I also agree that there has been a clear breach of contract. However, my concern in particular is that the landlord will not in fact "rectify" the changes, but will withhold and not use the money - this he clearly cannot do. Also, bear in mind that small claims is notoriously unpredictable, especially in cases where common sense would seem to go against the grain with regards the legal position!

Don't get me wrong Ed, from a purely theoretical point of view I agree 100% with what you say. However, from a real world point of view I have my doubts - although I still reckon that the result would be as you say, I'm not as confident as you

[Ed999]

It is up to the o/p to decide whether he wants to sue. But as he is clearly in the wrong, he might consider the risk too great.

Where the amount in dispute is less than £5,000 a court case would be allocated to the Small Claims track. The tenant won't normally be ordered to pay any of the landlord's solicitor's fees in a Small Claims case, if the tenant loses the case.

Thus all that is normally at risk in suing is the court fee to start the case. But as the tenant is clearly in breach of contract in this case, the landlord is free to hit him with a counterclaim for the cost of remedying the breach of contract: a counterclaim which can be for more than the amount of the deposit.

It may be that the landlord can be frightened into producing a schedule of dilapidations by simply sending a Letter Before ction (LBA) to the landlord. But if not the tenant can only force the landlord to produce one by suing, and in this case that would be a risky thing to do.

We do at least agree, MrShed, that court proceedings are notoriously unpredictable and risky.

In my experience, the reason they are found to be unpredictable is that litigants too often have unrealistic expectations of their prospects of winning, based on an over optimistic view of the strength of their case, due to an inadequate understanding of the applicable laws.



Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.