Tenancy Deposit Scheme

[saints_lad]

Hi all,

I was hoping that somebody on here would be able to advise me on my current position with regards to obtaining my full deposit back from my landlord.

Myself and 3 other housemates all signed the same Assured Shorthold Tenancy Agreement which started on 1st June 2007 and paid a deposit of £900 between us. (It should be noted that we had a previous tenancy agreement with the landlord, however as one of the tenants changed we began a new agreement as stated above).

The landlord highlighted next to the deposit section of the contract:
*to be advised later- new legislation.

The landlord told us that there was some kind of new legislation (ie, the TDS scheme) and he would let us know what he would be doing about this at a later date, but said that it was a bit of a waste of a £70 admin fee so probably wouldn't be worth doing (or something along those lines). The landlord did however not put the deposit into a deposit scheme thus he did not inform us within the 14 day notification period of this.

Having moved out of the property on 31st May 2008 the landlord said that he would be assessing the house and get back to us within the 30 day period that he was allowed to return the deposit under the terms of the agreement. He should therefore have returned the deposit on or before the 30th June 2008.

On the 1st July the deposit had not been forthcoming, nor had we received any communications from the landlord, so one of the other tenants called him to ask when it would be received and he said: "I think you'll find that it's only the 30 days today (which it was not- it was 31 days) so i'll send it some time this week". He also said that there were numerous deductions for cleaning and damage. So we ask for them to be itemised to see what these were.

On the 3rd July 2008 (even though the landlord had dated the letter 1st July 2008 we each received a cheque for £170- this amount should have been £225 each (please note we have yet to cash this cheque). In the letter there was also an itemised statement 2 pages long containing trivial cleaning tasks which he apparently carried out after we moved out. This list was laughable, containing items such as throwing away the Yellow Pages and cleaning a window ledge that had been dirty due to rising damp which he had simply painted over!

When we moved into the property there was no inventory taken nor was there any photographs taken to confirm the condition of the house. In our view we left the house in a far better state than we arrived therefore dispute these deductions.

So just a couple of questions:

1. Are we able to take action against the landlord for not entering our deposit into a Tenancy Deposit Scheme and claim the deposit amount x3?

2. Are the 4 tenants allowed to make one claim together as all the names were on the same agreement?

3. Do we first need to inform the landlord of our intention to take him to court in writing and first request that he returns the full deposit back?

4. If we cash the cheques that we have received so far will this mean that we are not allowed to claim against the landlord as this equates to offer and acceptance?

5. Is it simply a case of completing the N208 form in the way described in the 'sticky' in this forum or is there anything else that would need to be done?

If anybody could offer any further advice it would be greatly appreciated. Thank you.

[MrShed]

1) Correct
2) Correct
3) Yes - not neccessary, but strongly recommended, as you have to show that you have attempted to resolve the issue
4) I think that to be on the safe side you should not cash the cheques. However, unless he has stated "full and final settlement" then you should be OK - even if he has you should still be OK. Depends how much you need the money....
5) Yes basically

Not much to add really, other than PLEASE keep us advised of your progress as we are very keen to see TDS case results!!

[saints_lad]

Thanks for the information. I have since sent a letter to the landlord requesting that he returns the full deposit as he has:

1. Not met the initial requirements of an authorised tenancy deposit protection scheme and,

2. The tenants did not receive the prescribed information within 14 days.

I have told the landlord that if we do not receive the full deposit that we will take court action.

The landlord himself has sinced sent us a response with a number of points which I feel are totally irrelevant, and think he is using this letter as a scare tactic. Here are the points that he has made:

1. The tenants left the property in an untenable state and this issue was not disputed during 2 telephone calls after vacating- Nor did we accept that it was left in an untenable state during these calls, as we believe it was in a better state! As I said previously in my last post, the landlord did not take any photographs or an inventory when we moved in or when we moved out so he cannot prove this.

2. The new laws may be in the tenants favour but this does not release the tenants from the contractual obligation to leave it in a reasonable state.

3. The landlord spent £30,000 refurbishing the property SHORTLY before moving into the property and it was disrespectful to the landlord and new tenants to leave it in an unreasonable state and the issues were itemised in the last letter- I'm not too sure what the landlord feels is SHORTLY but before we moved into the property there were 4 girls living in the house for 2 years, so this is a total lie.

4. The landlord repaired the washing machine twice during the tenancy at their expense when the tenants damaged it- The landlord told us that it was coins blocking the filter, however to avoid him being called out we cleared the filters ourselves after him showing us but the issue still persisted, so this could not have been the case.

The landlord then goes on to say that we should return each of our cheques (totalling £680) and he will re-issue a cheque for £900 to settle the deposit. He will then however issue us with an invoice of £220 to cover the cleaning costs- This means that if the case was ever to go to court he would be able to claim that the full deposit was indeed returned, and it would then be turned around to us not paying our bill.

He then says that he will (which he has underlined) start court proceedings in the county court. He informs us of the consequences of receiving a CCJ and advises us to inform our new landlords of the impending court action.

It seems to me as though he knows that we have a case to make but has attempted to raise a number of other issues in an attempt to turn it around on us. The fact is that he has no evidence to state what the original or end condition of the house was because there was no inventory.

How do you feel that I should take this forward? Any advice would be grateful.

[MrShed]

1) "Untenable state" is all relative to the condition at the start of the property. As you rightly say, he cannot prove this by all accounts.
2) You have no such contractual obligation. You have an obligation to EITHER return the property to the SAME condition(minus fair wear and tear) as at the start of the tenancy, OR pay the costs to do so as ACTUALLY incurred. This is again all dependant upon a "baseline" condition to compare to.
3) Who cares? There is no "disrespect" in legal terms!
4) If he can prove negligence in use, then he can charge you for this. But he should have done so at the time. Also, were full instructions(manual etc) left on how to USE the washing machine?

- I fail to see any reason why he should do this. Instruct him that you will not return the cheques, but expect the DIFFERENCE to also be given in a seperate cheque. State that he can then invoice as he wishes, but that you still dispute such charges are owed. What he says really makes no odds. Let him take you to court.
- You are under no obligation to declare this to your new landlords. Also, yes technically if you lose you will have a CCJ, but if you pay in full straight away then there are NO consequences of this WHATSOEVER.

Proceed as normal and send an LBA, then take to court.

[saints_lad]

Ok, I have since sent a response to the landlords previous letter basically disputing the points which he last made.

I informed the LL that the tenants would not be returning the original cheques but expect the difference in 4 new cheques to match the full deposit, otherwise we would have no option to take him to court. I also told the LL that even if he does this we would still not be admitting any liability if he was to issue us for an invoice of £220.00 for the cleaning.

The LL has now replied and surprisingly posted out individual cheques to each tenant covering the full deposit. Although he also included in this letter an invoice for £220.00 for the cleaning, expecting payment within 30 days.

He has basically claimed that we have failed to meet the clause stating: To keep the items on the inventory and the interior of the property in a good clean state and condition and not damage or injure the property or the items on the inventory (fair wear and tear excepted). And also the clause saying me must pay the costs reasonably incurred as a result of any breaches of the tenants obligations.

The LL is now also saying that there were other cleaning costs which they had not previously mentioned and also included a derogatory comment basically calling us filthy!

A point to add: one of the other tenants has cashed both of his cheques, even after me telling him to wait until I had sought some advice.

EDIT: I have just noticed that the new cheques have been post dated for the 5th September for some reason. I'm not sure as to why this would be?? therefore I can only assume that the cheque will be processed normally- but I've not actually checked with the other tenant as of yet. But seems peculiar all the same.

Would you advise us to cash the cheques and await him to issue court action? If so, do think there is much chance of us losing (obviously theres always a chance)? If we were to lose would we still be able to issue our claim afterrwards or would the case be closed so to speak? OR

For the remaining tenants not to cash the cheques and issue our claim against the LL for not using TDS? or does the fact that he has now in effect returned our deposit in full mean that we do not have a case?

Any further info would be great!

[MrShed]

I would cash the cheques anyway, it really makes no difference to the dispute - in fact it makes it easier. Also, keep a photocopy of the cheques - as far as I am aware post dating cheques is illegal, as it implies there are insufficient funds to cover the cheque at the time of issuing which is a criminal offence.

Do you want to pursue over JUST the TDS? If you do, then sue and do not cash cheques at this time(even though it should make no difference). If not - cash the cheques, and countersue for the TDS breach if he sues for the cleaning costs.