Landlord won't return deposit

[LondonChris]

Hi there

 

 

I'm afraid this is a bit of a long story as I thought it best to give all the details. I've been helping a friend to try to get her deposit and one week's rent back from her landlord. She rented a flat on an AST since May 2004 so sadly the deposit is not in the TDS. I've uploaded a copy of the tenancy agreement here Pictures by lynchthelandlord - Photobucket

 

The landlady will only deal with my friend through her son who has been very difficult to contact and eventually told her on the phone on 21st April:

 

“I am loath to return your deposit as the decorator says the flat is a mess.”

 

The decorator had visited to survey the flat and see what needed doing while she was still a tenant and packing up to leave so it's not unreasonable that the flat was full of boxes of her stuff.

 

She sent a LBA that I prepared Pictures by lynchthelandlord - Photobucket 21st April to the landlady and her son requesting the deposit and the week's overpaid rent back for any amount not in dispute and requesting reasons for any deductions.

 

Today she received a 'without prejudice' reply from the son giving his reasons. I've attached a link to the letter here Sonsletter001.jpg picture by lynchthelandlord - Photobucket . These are his arguments and my thoughts on them below. I'd appreciate any opinions you have on these:

 

-The keys were not returned to him so he wasn't sure whether or not she had left the property. He claims that “In law you are liable for rent until the keys are returned to the landlord.” Apparently the decorator couldn't get in so drilled the lock. The first he knew of it was when the decorator tried to gain access so he hadn't tried to re-let the flat before this.

 

The son was unwilling to meet to inspect the flat and take the keys personally. She left about a week before the end of the tenancy so presumably would have been liable for any damage if someone had taken the keys from the communal area of the flat and damaged the property / squatted etc. The landlady's son made himself very difficult to contact and she did not have an address for him that she could send the keys to. When the son phoned her she offered to return the keys later the same day.

 

He is claiming rent until the 27th of April (about 2 months). He only found out he didn't have the key on this date so had clearly made no effort to rent the property beforehand.

 

Presumably he would have a duty to mitigate his loss by calling a locksmith (or in this case the getting the decorator to drill the lock) otherwise he could continue charging rent for years. I think that at worst the only costs he should be able to deduct is the cost of gaining access and fitting a new lock. Any thoughts?

 

Additionally the Office of Fair Trading guidance says this would be an unfair term. Is this something we can rely on in court?

 

-The flat was not in the clean condition in which she found it and additionally she kept a cat during the tenancy which was against the terms of the agreement.

 

The flat was in definitely not professionally cleaned when she moved in and was as clean when she left (other than almost 5 years of fair wear and tear). The flat has not been cleaned yet but is being redecorated. Do you know if charging to have it cleaned after redecoration would count as betterment?

 

Regarding the cat: She looked after her parent's cat for one day over 2½ years ago (the cat has been dead for 2 years). Unfortunately the landlady's son phoned up demanding to inspect the property immediately that day as he was in the area.

 

The OFT guidelines suggest a clause banning all pets would be considered unfair. The exact wording of the clause is “No animals or children permitted”. I imagine this is unenforcable especially as it bans children. Any thoughts?

 

The landlady has happily continued the tenancy (sending a letter to increase the rent every so often) ever since and appears to have suffered no material loss so I can't see why he can deduct anything from the deposit for this.

 

-He hasn't received any final receipted bills for utilities and council tax.

 

This is not mentioned in the tenancy agreement and again the OFT regard this as an unfair term. As my friend is liable for the bills I can't see how he has suffered any material loss and has any reason for withholding money from the deposit.

 

 

He estimates the cost of cleaning and gaining entry to the flat at £200 and the extra rent due at £943.83. If my arguments above are correct I think the maximum he could deduct is the £200 (which I would dispute anyway) and probably just the cost of gaining entry which would be about £80 for a locksmith around here.

 

I'm not sure what her next step is. His letter is “Without Prejudice” so we can't easily counter his arguments in court. If you guys think my arguments above are reasonable I guess she has two options:

 

a) Write a letter countering his arguments with the reasons I gave above. Assuming he doesn't dispute the quotes about what he said I guess we could then use this letter to show his arguments in court.

 

b) Issue a claim anyway against the landlady and hope she puts the same reasons in his defence.

 

Which of these do you think is the best way forward or have you got a better idea? Sadly friendly negotiation won't work.

 

Many thanks if you've read this all the way to the end!

Edited May 8, 2009 by LondonChris
To remove double line spacing

[Steve__M]

I think he's misunderstood the use of "without prejudice".

 

Suggest written response asking for a non-"without prejudice" list of reasons for the deductions, including copies of receipts. State that the courts would expect the landlord to negotiate the dispute openly.

[LondonChris]

I think he's misunderstood the use of "without prejudice".

 

Suggest written response asking for a non-"without prejudice" list of reasons for the deductions, including copies of receipts. State that the courts would expect the landlord to negotiate the dispute openly.

 

Thanks Steve we'll give that a try