Tenancy Problem - Urgent Help needed

[Catlover64]

Hope there's someone who can help!

 

I live abroad. I rented out my 2 bed house via an agency to a female lone parent and her 2 YO son on a 1 year lease.

 

It seems she moved her partner in and was carrying on an informal childminding business from my home.

 

She ended the lease after 6 months and moved out earlier this month. I flew in last week and visited the house. She left it in a terrible state - very dirty and smelly with grease all over the walls, and children had scribbled all over the walls. I won't even mention the rubbish piled high outside the house, and the state of the garden....

 

My husband & I have had to paint the walls to get rid of the scribbles, do a scratch clean before the cleaner we hired got there to clean the house (It was that bad!) and tidy the garden.

 

She stills owes 1 month's rent, so obviously I've challenged the return of her deposit, and I will be billing her for the cost of the cleaner, plus cleaning materials and cost of the paint needed to re-paint the house. I have taken pictures of the damages and have e-mailed them to the tenant.

 

We would like to also charge her for our time. What would be a reasonable amount to charge? We were thinking of £10 per person, per hour and travel costs.

 

Please let me have your thoughts! TIA

[Planner]

That sounds reasonable. A suggest you change agents!!!

[Catlover64]

Many thanks for your response! Any other thoughts anyone??

[Catlover64]

Bumpity bump...Any other thoughts?

[no pain no gain]

hI CAT LOVER 64

WAS THERE A DEPOSIT PAID ?

[Catlover64]

Yes, there was ( One month's rent) and is held by the DPS. However, the tenant still owes me a month's rent, and so I've disputed this. This new issue is over and above the rent which is still owing.

 

Another question: Once the deposit is disputed, what are the next steps? Does anyone know??

 

TIA

[no pain no gain]

Hi catlover64 again,go along with the scheems dispute service rules.Do remember to keep all recipts for repairs ect. Did you have a check in invertory done ?. How much was the deposit?.

[binkhus]

hi

this may sound daft but when you saw the damage did you give the ex tenant a chance to repair themselves? to charge ten pounds an hour for your time if you didnt sounds slightly high. im just thinking of how it would sound in court im sure they left it that way and had no intention of doing the work themselves but if the opertunity wasnt given ect

[Catlover64]

No I didn't. It would seem she had NO intention of putting right the damage, as she'd texted me saying she'd cleaned the house. I arrived home 2 weeks later, and it was fairly obvious she'd just picked up and moved. NO attempt was made to clean it or even make sure she took all her food....

 

I took pictures of the state of the house BEFORE we cleaned and painted it and mailed them on to her. I've since sent the bill (and yes, copies of receipts for the stuff we bought, as well as the bill from the cleaning co), and am awaiting further comment.

 

When I commented about the children's scribbles on the walls, she did ask to meet me and point out the damage, but I refused as I was still very angry and did not want further upset. By that time we'd already started to clean up and paint, so not much point. All I told her was that I would mail on the photo's on my return (Which I've done) and sent her a letter to follow up. I have e-mailed the letter as well as sending it on via recorded delivery to her new address.

 

I should also mention no check-in report was done. This was my first time renting, and this is a mistake I will not be repeating, believe me!! Deposit was 1 month's rent paid in advance.

 

Hope the above make a bit of sense now...

[no pain no gain]

Catlover64 Without a check in report you are on wobberly ground,however, given rent is owed the deposit should be awarded to you.

It will be for the tenant to prove it was paid!! How much was the deposit

in pounds ? If it was over £750.00 you could serve a statutory demand for

payment-this costs you nothing but can really focus there mind.

[Catlover64]

Hi No pain, no gain. Thanks for all the help so far!

 

The deposit was for £850 and is held by the DPS. As I mentioned earlier in the thread, I have already disputed this some time ago, but no further action since then. I don't know the next steps to take on that one...

 

I can prove the damages, as the tenant has an unusual name which was written all over the walls, as well as the Disney stickers all over my bedroom wall (I have no kids!!). The fridge freezer which was left in a filthy & smelly condition was BRAND-NEW!!!!

 

Any further advice or thoughts would be welcome...

[Catlover64]

I should also add - I understand from the neighbours, there have been problems with noise and the amount of people going to & from the house at all hours. I have not yet mentioned this nor the fact I know about the informal childiminding business to the tenant as yet, as I am awaiting her comments regarding the damage and the rent.

[no pain no gain]

Catlover64 To save time would you please bring me uo to speed on one or two things

1 DID YOU RENT THE PROPERTY YOURSELF

 

2 DID YOU PLACE THE DEPOSIT WITH "DPS" ?

[Catlover64]

Hi there

 

No - it was rented through a letting agency on a 'rent-only' basis.

 

See my earlier answers. The deposit was placed with the DPS through the agent and later transferred to me.

 

Many thanks

[no pain no gain]

Hi again, the DPS is a custodial scheme for landlords and letting agents.

How was the deposit later transferred to you? Who has the deposit now?

[Catlover64]

The deposit was later transferred into my name by the letting agents who held it in the DPS originally....

It is still in the DPS but disputed. The tenant asked for repayment which I have disputed. At the time, I didn't know about the damage to my property, and I wrote to her explaining I would not be refunding the deposit until the rent was settled and I was satisfied with the state of my property when she moved out.

 

Of course, in view of what's happened, I am NOT prepared to repay the deposit...

[Just4Let]

If the tenant has disputed the return of the deposit you'll have to log in again and re apply. Once she disputes it a 2nd time it will go to arbitration.

I believe the DPS will contact you to request your proof that you 'deserve' all of the monies back from this deposit so send a file with all your evidence.

Enclose a statement of account, showing arrears, along with the photos of the damage she has caused and I don't see that she'll have much to argue about. (unless of course she says that the condition was like that when she moved in)

Next time you employ an agent on a tenant find only make sure you get a full written and photographic inventory performed BEFORE the tenant goes in. This may cost you more initially but at least you'll have evidence of the condition at check in.

[no pain no gain]

Morning Catlover64,

 

as I stated earlier you are on shaky ground without a check-in inventory and condition report.

 

I hear what you are saying with regard to the damage (scribbles on walls etc) and your comments with regard to what you were told by some neighbours. However should your ex-tenant or you decide that one or either of you does not agree, for whatever reason, to be bound by the services arbitration facility that would place the matter as far as DPS is concerned in unmovable deadlock.

 

Again given there was no check in inventory I personally would consider very carefully whether to be bound by the decision of the DPS (their decision is not subject to appeal).

 

I personally, in the circumstances of which I am aware, would be very much inclined to opt for the option of bringing a claim for damages for outstanding rents and breach of contract in sofar as amongst other things your ex-tenant breached the terms of the tenancy by running a business (childminding) from the private residential property. In any such claim you should ask the Court to order the DPS to return the deposit to you in its entirety. The DPS cannot without such an order by the Court release the deposit to either party.

 

The rules relating to check-in and check-out inventories can be quite severe under any of the deposit schemes. These restrictions do not apply so harshly if at all to a County Court Judge as the matter would be decided on common sense and on the balance of probability and in addition applying the common law rule of THE REASONABLE MAN TEST.

 

It is likely that you would be awarded the rent you say is outstanding plus monetay damages for any damage to the property. The Judge in such an order would state that the deposit being held by the DPS £850 should be returned to you.

 

The above money claim is a small claims matter that can be instigated on-line using the MOL (money claim on-line). The cost is relatively small, a maximum of - I believe - £120 for claims up to £5000 so in your case it would be cheaper and of course this cost is recoverable in the likely event that you win. You would not need a solicitor, indeed it is advisable not to have one as such legal costs are unrecoverable by either side.

 

On what I know of your case and circumstances I view this as the best way of securing at least the £850 that is available for recovery. Whether or not you in reality would recover from your ex-tenant any additional sums awarded is entirely another matter! (Best get the bird in hand first!!)

 

I must stress that the views above are mine and are only based on my personal knowledge and experience, however my win/loss sheet is fairly impressive!

[Catlover64]

Thank you so much No pain, no gain and Just4let for all your help and constructive comments.

 

I've talked to my husband, and we think the court route would certainly be the way to go, in view of the fact there was no check-in report. But the house was professionally deep-cleaned before she moved in, and I still have the bill for that, so that goes some way I believe to proving the state of the house before she moved in. The absence of a check-in report is a mistake I SHALL NOT BE REPEATING, believe me!!!

 

I have sent her a recorded delivery letter to her new address requesting the matter be settled within 14 days. I will wait for the 14 days to elapse before instigating court proceedings.

 

One more question if I may. On starting the tenancy, my ex-tenant had to have a guarantor. Can I name him as well as her partner in the proceedings?

 

Many thanks for your help as always!

[no pain no gain]

Hi catlover64,

 

glad to hear you are considering going the County Court route, I really believe it will be best, quicker and more economically beneficial to you in the long run.

 

The possibilities are now opening up very nicely from your point of view as I now know there was a guarantor. Did the guarantor give his guarantee in writing? Was it included in the contract or was it a written guarantee on a seperate document made as a deed? (This could be important later).

 

I note that your tenant (1st defendant) entered a one year term tenancy contract and ended the term after 6 months. Was there a break clause allowing your tenant to break the 1 year agreement after 6 months? (This is important if only insofar as the guarantor's position is concerned).

 

My advice and observations based on what I know to date and taking into account that I have not seen the lease agreement are as follows;

 

1. I can see no benefit for including the partner of your tenant on any claim form as my understanding is that he was not a signatory to the agreement, therefore in law he is not privvy to the contract (privity of contract) so could not gain or lose on a claim made in contract.

 

2. I consider that your letting agent (3rd defendant) who owed you a duty of care for the consideration of the sums you paid them failed in that duty and as such could be held liable for that failure. More about that later.

 

3. The third party to any County Court claim should be the guarantor (2nd defendant). The guarantor is legally bound to fulfil the obligations of the tenant which he guaranteed.

 

Now that we have identified the parties (defendants) to your potential claim lets see, as should always be the case, if we might avoid the need for litigation.

 

The Lord Wolf Reforms of circa a decade ago were designed to level the playing field and introduce a more open 'cards face up on the table' approach to litigation. One of the cornerstones of those reforms was the range of pre-action compulsory protocols that were introduced. Even where no particular pre-action protocol is in place it is prudent always where possible to act within the spirit of such protocol.

 

I therefore suggest that you write an OPEN 'letter before action' to the three proposed defendants setting out clearly the breaches of the tenancy agreement that affect defendants one and two and the unique characteristics of the claim that affect the third defendant ie. the letting agent. Make sure you let the parties know that this 'open correspondence' will be placed befor the Court in the event of no settlement being reached and in particular the Court would consider the letter when assessing costs in the matter.

 

I do not need to go over the matters that concern the 1st and 2nd defendants as they are self-explanatory ie. breach of contract, rent, damage etc.

 

With regard to the 3rd defendant - you were owed a duty of care and in the absence of settlement (which I will propose below) you should request pre-action disclosure of them, a copy of their referencing and vetting procedures and in particular a copy of the references and credit checks that they carried out in relation to your tenant. These documents can be requested under the Civil Procedure Rules (CPR) and there are penalties for failure to disclose. In any event these documents would be subject to normal disclosure at the disclosure stage and/or at the hearing. In the event that they raised, as is sometimes the case, a Data Protection Act defense to producing such documents you should point out (before they raise any such defense) that the tenant would have given their permission for such a search of their personal data and as the person who would most likely benefit or lose as a result of that information you are for the purposes of the Data Protection Act entitled to disclosure. In any event they could redact any information that they felt as a data controller fell outside of your general right to disclosure. No doubt you will see the benefits of seeking this early disclosure.

 

To summarise the above - make all of the parties aware of your position and in turn their position as you see it.

 

I would calculate the reasonable totality of the damage that you have suffered in monetory terms (excluding the £850 held by the DPS) and suggest in order to avoid litigation that the sum total of your loss be divided 3 ways (ie. £600 equals £200 per party) to avoid litigation. Naturally any such settlement could only be reached with the proviso that the tenant agreed in writing that the £850 deposit be returned to you by the DPS.

 

I feel sure that, certainly insofar as the guarantor and the letting agent are concerned, they would deem this to be a very reasonable offer indeed as ultimately one or both of them in Law could be held liable for all of your tortuous actionable loss.

 

Catlover64, I hope the above is of some assistance to you and please feel free to ask for any further assistance. If I could leave you with a quote that has stood me in good stead for many years;

 

"Brevity, Clarity and Simplicity are the hallmarks of the Skilled Pleader" : per Megarry V-C (1982) 1 All ER 336

 

Kind regards

No Pain No Gain

[Catlover64]

Hello again!

 

I've checked over the contract and yes, the guarantor DID sign it (as well as the tenant & myself). I've also highlighted where the tenant breached the lease.

 

There was a 6 month break clause in the contract, which I understand from the agent is normal in AST agreements.

 

As the house was rented on a 'rent-only' basis (i.e. the agent only found the tenant, and arranged for the necessary credit checks to be done), I don't see how I could sue the agent - unless I'm missing something? .

 

I think the best thing to do would be to wait and see if the tenant settles the bill first before writing an LBA. I've asked for payment within 14 days of receipt of my letter which was sent via recorded delivery.

 

Given the above, would I still be able to sue the guarantor as well?

 

Many thanks for all your help. I really appreciate it!!

[no pain no gain]

Hi catlover64,

 

I accept, given you have already written to the tenant, that you could wait for the 14 day period to expire however given the way your tenant left the property and the state in which you describe and further that your tenant left owing 1 months rent (£850) it appears to me that your tenant was securing the return of her bond by deceit and had no intention of allowing deductions for the damage you describe to be deducted. I am therefore less than convinced that your request wil be met with anything other than the contempt already so obviously displayed by her. Although naturally from your viewpoint I hope to be proved wrong in my cynicism!

 

Turning to the letting agent, I am of the view that your agent contracted with you, whether in writing or not, to find a 'suitable' tenant to take up residency for a period of one year. There are, as you may be aware, implied terms in all contracts covering amongst other things to do their duty with all care and professional due diligence. The reason I suggested seeking a copy of their vetting and referencing procedures was to establish whether or not in this case they had fulfilled that legal contractual obligation. Were you to receive a copy of your tenant's actual credit reference check and any written references taken up by the agent you would be better placed to make such an assessment.

 

Turning to your agents claim that the 6 months break clause in a 12 month lease is the norm I would dispute that assertion, in particular if your mandate to them was to find a tenant for a 12 month period it would be outside of your instructions to them. However given that you signed the contract with the 6 months break clause there is little point in paddling down that road. Again however, the agent will have drawn up the lease agreement and presumably there will have been provisions regarding notice should your tenant wish to avail herself of the right to invoke the break clause. Did your tenant give notice as per the agreement?

 

Staying with the agent, tenant and break clause - were notice not to have been given in the correct manner as per the terms of the agreement any such notice would be invalid and the lease would continue to have lawul effect. Given that you have already written to your tenant requesting as you have for her to settle the matter it would probably be deemed that you have accepted the termination of the contract and perhaps have foregone your right to seek specific performance of the contract insofar as your tenant is concerned. Any or all of the above in my view could be used against the agent to bring a claim in the tort of negligence and/or in breach of contract (they are the professionals and presumably you are acting as a consumer).

 

Yes you can bring a claim jointly or severally against the tenant and/or the guarantor. I am of the somewhat tentative view that you in accepting the keys and posession from your tenant does not extinguish the obligations placed on the guarantor to meet his obligations for the full term of the tenancy agreement ie. 12 months. I base this position on the basis that no right to invoke the 6 month break clause could be effective if invoked by way of a fundamental breach of the agreement and in particular a breach of the terms relating to the break clause ie. if presumably, as is the case, your tenant failed to pay the last months rent the break clause could not be relied upon by your tenant.

 

Perhaps some others on this site might care to voice their opinions on this or any other matters raised in this thread. I believe 'Planner' earlier in this thread suggested you change your agent, perhaps Planner might throw some light on things as he sees them.

 

I do not raise the issues that I raise for the purpose of developing more defendants or causes of action I raise them merely to give you a better battering-ram in the hope, as is always my philosophy, to try as hard as possible to avoid the need to resort to litigation.

 

A weapon not used is not a weapon at all!!

[no pain no gain]

Hi again,

 

I noticed from one of your previous threads that you have lived in Ireland, as a native originally from Dublin myself I have to agree that the cost of living and in particular 'drinks' is unbelievably high! Which brings me to a quote from the great Irish playwright Brendan F Behan;

 

"I am a drinker with a writing problem"!!!

[Catlover64]

Hi No pain, no gain. Great quote by the way...

 

I'm English, married to a Corkman & live in Cork. Love the life here, if not the cost of living!!!

 

We have further movement. I had a call this morning from the tenant who received my letter. Well - I have my doubts that it was indeed the tenant who called but that's another story...

 

She claims that she didn't leave any rubbish, and that the house was clean when she left. I asked whether she had looked at the photo's I'd sent and was told she hadn't. To make a long story short, I explained about the damage caused, the children's scribbles on the walls and the general dirty state of the house. I also pointed out that as per lease, she was supposed to clear all the rubbish on leaving, and I could charge her rent for every day the rubbish was left. (But hadn't!). She claims she has no money, and single parent, etc., etc. At this point I terminated the call as I was getting very angry, and felt it was going nowhere. I suggested she read my letter very carefully and check her lease. I have also requested that all further communication be in writing as I do not wish to speak to her any more....

 

LBA think you?

[no pain no gain]

Hi CL64,

 

Please forgive the familiarity but having had many a drink on Patrick Street in Cork I feel that it would be an Irish inhospitability (if there is such a word!!) to address you by your full title in the circumstances in which we correspond - and yes before you ask I have kissed the blarney stone as my wife and all who know me will testify to!!!

 

Now back to the business in hand - Yes I think letters before action are now very clearly the order of the day. It seems that it may prove difficult to extract sums due from your ex-tenant,, but the bird in hand (in this case in the TDS's hand!) is available thankfully for recovery, probably by way of a default judgement. I would if I were you engage the guarantor at this stage if only to place him on notice of matters to date and his potential liability.

 

Should, of course, the guarantor turn out to be as financially solvent as your ex-tenant then this of course would bring you back to the role of the agent who provided 2 such 'suitable' signatories to the letting arrangement that they facilitated in return for payment.

 

Life's funny but with the benefit of hindsight I would do everything over again - only differently!!

 

NPNG