TDS claim counteracted with HUGE counterclaim

[unhappy ex tennant]

Hello,

 

We're just going through the motions of making a claim against our previous landlord.

 

When we moved out we met with her to inspect the flat, we knew from her reaction that she'd already been in. She cited dirty oven, mould on walls due to damp problem, furniture in different place to when moved in, marks on carpet from settee placement, the way we stored our belongings prior to us moving out (ie against a wall in the bedroom) causing damage and the bedroom now requiring redecorating (so she's been nosing in + it hadn't caused any damage anyway), and fridge door shelves missing as just cause to retain some of our deposit. We were flabbergasted as as far as we were concerned, we were just going over to hand the keys over and receive the deposit back in full.

 

The landlady said she was going to call an 'oven man' the following day and she would call with that information and the cost of having the carpets cleaned to give us a figure of remaining deposit that would be returned to us. The fridge was old when we moved in (a small under counter type) and she is fully aware we used our large american style fridge freezer for the duration of us being there.

We questioned which deposit scheme our deposit was being held with and she replied 'it's not with a company, I've got the deposit, I'll do what i want with it'. We reminded her that it must be protected, she replied 'no, i've got it.'

After this, she'd called her husband to come round for backup who gave me a mouthful then walked off, leaving us with the keys. She didn't call the following day. We submitted a claim for non-TDS compliance without a LBA as the case was absolute. Our thoughts are initially to return the keys to her registered post.

 

Her counterclaim list is as follows (which is the first we've heard from her):

Replace door lock to front to flat as the keys have not been returned. plus 3 keys.

Replace the front door lock to flats entrance and supply 30 keys.

Replace carpet to lounge and bedroom and kitchen floor covering.

Replace electric cooker which is beyond cleaning.

Redecorate lounge and bedroom.

Deep clean throughout.

Replace missing bottle shelves in fridge.

 

Unfortunately, we didn't think to take any photos, as we were unaware of the TDS process. We're going to try and dig anything we've got out, but it's unlikely we'll have anything useful to our case.

 

What amounts as evidence on the landlord's behalf as, for instance, a carpet requiring replacement? An oven being beyond cleaning and therefor requiring replacement? A lino floor dirty beyond cleaning that requires replacement? How can we prove that this counterclaim is just reactive to us making a claim for TDS non-compliance?

 

Professional was not mentioned in the contract, though they were all vacuumed to a normal standard and any marks removed (not that there were any significant ones).

 

We both rent houses ourselves and have just been particularly badly burnt with one tennant leaving the property in an absolute state, but we just got on with it and sorted it. This landlady is making ridiculous claims and I don't know how we can prove that the flat does not require what she has said it requires in court.

 

Our claim is for £1500, theirs for £3000. We're a little bit scared to say the least!

[MrShed]

From her list of complaints, what is actually true?

 

The figure of £3k for that list, even if all true, is hilarious.

 

Theywill get laughed out of court for not taking into account FW&T, and they are clearly using betterment.

[unhappy ex tennant]

From her list of complaints, what is actually true?

 

The figure of £3k for that list, even if all true, is hilarious.

 

Theywill get laughed out of court for not taking into account FW&T, and they are clearly using betterment.

 

 

Thanks for replying! The exact figure being £2796.50, and yes, absolutely ridiculous.

 

That's what we're hoping too. We told her that when we were there, but her and her husband seem to think they're a law unto themselves.

 

She's just got a bit of a nasty side, so we're a bit scared she'd cause damage to the place to then take photos to then submit as evidence. There's nowt funny as folk after all!

 

My girlfriend is currently digging out some photos that we took when we were living there, that show we kept it tidy and clean etc. They should help a bit surely? I think we only have the one of us larking around while we were doing the last cleaning/tidying before we moved out, but anything is better than nothing.

 

The oven needs a mr muscle and it'll be as good as new. I spent an hour or so cleaning the ceramic top, and it was pristine. The inside of the oven was purely an oversight on our part and not at all intentional.

Carpet/kitchen floor coverings certainly do not need replacing. Keys will be returned tomorrow. Inside of cooker needs cleaning, max £40 to have someone in, probably a lot less. Any redecoration required is due to plaster falling off wall in one place due to damp problem (200-300 year old manor building, outside in general state of disrepair). Deep clean - well we had to clean it when we moved in due to everything being covered in thick black dust, we also cleaned it before we moved out obviously. Bottle shelves never present - how on earth would anyone lose them anyway?

Edited October 12, 2009 by unhappy ex tennant

[MrShed]

Do me a favour....can you just clarify:

 

- Movein date.

- Whether you signed a check in inventory.

[unhappy ex tennant]

Ah, also inventory written up at beginning of contract only outlined what was present, not condition. We didn't receive a copy of this tho, so hopefully, she won't doctor it.

 

Sorry and movein date was 1st October 2008, Moved out 31st August 2009.

[MrShed]

Did you sign it?

[unhappy ex tennant]

I did sign it, yes.

[MrShed]

OK.

 

without conditions listed, she has no way of proving baseline condition of the property to compare against.

 

Defence should be relatively straightforward on the following fronts:

 

- The claimant denies all claims of damages made within the counterclaim.

- The defendant has been unable to provide proof of any damages during the claimant's tenure, due to the lack of detailed (i.e. photographic evidence and/or detailed description) and agreed baseline condition of the property upon the commencement of the tenancy. Nor has the defendant provided any invoices for the claimed work (I assume she hasnt?).

- Moreover, the defendant is attempting to instigate betterment of the property at the claimants expense, due to not replacing and/or claiming "like for like" for the alleged damages. The defendant is also ignoring fair wear and tear when considering the alleged damages.

 

This isnt true legalese, but will go something along those lines.

 

She is taking the michael.

[unhappy ex tennant]

Thank you very much MrShed. That is very reassuring. We're going to have a good session tonight consolidating everything we have read on the forums/net in general.

 

Would you also agree with this little gem found elsewhere?:

 

Link to a previous thread.

Hopefully, if you get the claim in quick, she will then counterclaim with the deductions, and as I understand, there is no entitlement to counterclaim against damages in a TDS dispute as each of the schemes provide arbitration services. And given there is no excuse for not using the scheme, the arbitration services are the only option for a landlord to look at deducitons. And then her counterclaim will get struck off straight away.

[MrShed]

Personally - I disagree.

 

If there are PROVABLE damages, then the lack of using TDS does NOT remove liability for these by the tenant.

 

There is no provision in law to have such damages claims thrown out on the back of lack of protection.

 

However, in your specific instance, it should make little difference, and certainly cant harm to state that the landlord is attempting to circumvent proper legal process by using the courts in a vexatious manner, rather than using an arbitration scheme.

[unhappy ex tennant]

Yes, that makes sense. Afterall, it's not that we're actually trying to get out of paying for actual damage that we've caused, as we didn't cause any.

 

Thanks.

Edited October 12, 2009 by unhappy ex tennant

[unhappy ex tennant]

Other info, not sure if relevant:

 

After living there a few days we used the shared washing machine. Upon touching the casing of the washing machine, I got an electric shock. (Probably foolishly) I touched it again to confirm it was the washing machine and not static built up, sure enough another electric shock. Grabbed a basic live tester screwdriver and put it to the casing of the washing machine, indicated live. Informed landlady immediately, washing machine and associated wiring inspected 2-3 days later and electrician bonded some wires that were not previously connected to earth and noted that the wiring in the building was a complete rats nest.

 

We were never given an EPC while we were there and presume she didn't have an efficiency survey done.

 

Are either of these points worth raising? I've since contacted local authorities but was passed from pillar to post regarding who would enforce anything and it seemed that not a lot is done once you have moved from the property.

 

We also felt our privacy was compromised (confirmed by her telling us about how we had stored things in the bedroom) and we were always unhappy that our post was always delivered to her house, then distributed by her when she felt like it the following evening (if that evening). We also had parcels go missing at xmas containing presents, that turned up 4 days later in the back of her sons car (who lives elsewhere anyway). We don't want to sound petty/pathetic, but there were various things that stopped us enjoying the property as much as we should've done.

[DisgruntledTenant]

Hopefully, if you get the claim in quick, she will then counterclaim with the deductions, and as I understand, there is no entitlement to counterclaim against damages in a TDS dispute as each of the schemes provide arbitration services. And given there is no excuse for not using the scheme, the arbitration services are the only option for a landlord to look at deducitons. And then her counterclaim will get struck off straight away.

 

I'm trying to use this defence to the counterclaim to my TDS non-compliance claim also.

 

From Stankova v Glassonbury

In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or other arguments about the return or retention of the deposit on the basis that a statutory scheme included arbitration for disputed about returning or retaining deposit monies.

 

Why should tenants have to face legal costs, and court and its associated stresses, and an opposition solicitor, for a counterclaim that should have been dealt with by a free arbitartion service, and the only reason why the tenant cant use the free arbitration service is because the landlord has failed to meet his statutory requirements?

[Kentish Lass]

Other info, not sure if relevant:

 

After living there a few days we used the shared washing machine. Upon touching the casing of the washing machine, I got an electric shock. (Probably foolishly) I touched it again to confirm it was the washing machine and not static built up, sure enough another electric shock. Grabbed a basic live tester screwdriver and put it to the casing of the washing machine, indicated live. Informed landlady immediately, washing machine and associated wiring inspected 2-3 days later and electrician bonded some wires that were not previously connected to earth and noted that the wiring in the building was a complete rats nest.

 

We were never given an EPC while we were there and presume she didn't have an efficiency survey done.

 

Are either of these points worth raising? I've since contacted local authorities but was passed from pillar to post regarding who would enforce anything and it seemed that not a lot is done once you have moved from the property.

 

We also felt our privacy was compromised (confirmed by her telling us about how we had stored things in the bedroom) and we were always unhappy that our post was always delivered to her house, then distributed by her when she felt like it the following evening (if that evening). We also had parcels go missing at xmas containing presents, that turned up 4 days later in the back of her sons car (who lives elsewhere anyway). We don't want to sound petty/pathetic, but there were various things that stopped us enjoying the property as much as we should've done.

 

Since you did not deal with these issues during your tenancy, they are irrelevant to your problems now. Sorry if this is not what you want to hear. You need to keep any claim, or counterclaim, succinct and clear of any waffle - just go for the relevant details regarding your deposit.

[unhappy ex tennant]

No, that's exactly what I wanted to hear.

To the point and waffle free it is.

Thanks!

[Kentish Lass]

Good luck. She sounds a nightmare!!! Hope you sort things out!

[MrShed]

Since you did not deal with these issues during your tenancy, they are irrelevant to your problems now. Sorry if this is not what you want to hear. You need to keep any claim, or counterclaim, succinct and clear of any waffle - just go for the relevant details regarding your deposit.

 

Fully agree by the way

[bedlington83]

we were always unhappy that our post was always delivered to her house

Why would your post be delivered to a completely different house? Was your property part of the same building as the ll's home? Did you share an entrance for example?

[unhappy ex tennant]

Why would your post be delivered to a completely different house? Was your property part of the same building as the ll's home? Did you share an entrance for example?

 

 

No not at all. Flat is in an old manor house, split into 10 flats. Landlady lives in Cottage next door to manor house, but a completely independent property to the manor building.

 

We spoke to the post office and asked why they always delivered our post there and were told that the post was delivered there due to the landlady specifying that they deliver to her to improve security, despite the fact she then went round every (well not every tbf) evening and put each persons post outside their flat door on the floor. Very secure huh? (Manor does have it's own letter box etc. Post office gave us the option of retaining our post there and us picking it up, which isn't exactly convenient.)

 

We did notice that while living there, we didn't recieve a single piece of 'spam mail', though this extended to freebies that we signed up for, such as packets of seeds, etc. Obviously, we wouldn't have a leg to stand on regarding proving anything like that though.

[MrShed]

The Post Office have no right to do that!!!! If thats true, thats a disgrace.

[unhappy ex tennant]

Yeah, one of the many frustrating things we had to put up with. Don't know if there was/is anything we could have/can really do about it though.

 

I'm sure we'll laugh about it in years to come!

[unhappy ex tennant]

Another thing.

 

The landlady ticked the 'court has no jurisdiction' (or whatever the exact wording is) on the original claim form, but I can't see why. Why would someone tick this unless just stalling?

[unhappy ex tennant]

Ok, to save cluttering the other threads:

 

Basically our court hearing is this Friday (26th Feb, 2010).

We have submitted our documents we wish to refer to, but the defendant has not submitted anything at all (so far).

 

We had a stroke of luck before submitting the documents, which was finding the new advert for the flat, with new photographs taken presumably by lettings agency landlord has chosen to use.

These photographs show the same carpet fitted and as immaculate as the day we moved out (very clean, no marks etc.!), Shows the same cooker fitted (which was deemed 'dirty beyond cleaning'), and finally shows the lino has not been replaced. It could of course be argued that they have a regular supplier who supplied same lino, carpet, cooker, etc. But various dark/light shades in the 'fake wood grain lino' correspond with our photos of while we were living there. You can literally see parts line up with the units that show beyond doubt, it has not been changed (or has anything wrong with it). Both photographs submitted to court along with all other photos and letting agents advert.

 

We were kind of hoping that they would've submitted receipts for lino replacement etc. (seeing as these would have to have been falsified), but nothing as yet and court have also confirmed nothing has been filed.

 

So documents looked like this:

Tenancy agreement,

Deposit,

Confirmation from each TDS that deposit is not protected,

LL's registered address.

Photographs during tenancy,

Photographs on final day of tenancy (Sparser than we would now like, as we only took a few for 'memories', we didn't for one second think they would try anything!),

Evidence of keys being returned,

Current Letting agent advert for flat with blown up photos.

 

With all of these bits and pieces, have I overlooked anything? Anything they could pull out of the bag and completely blow us out of the water with?

 

And to quote MrShed from another thread:

"It would be pretty simple - you just show in court tenancy termination date, as compared to the date of protection."

 

Where does it say that a deposit cannot be registered after the end of the tenancy and would this not be subject to the recent Hiigh Court decision?

 

We really really appreciate everyone's help BTW!

[unhappy ex tennant]

It's this that worries us somewhat (taken from another forum):

 

If a tenant is concerned that his deposit is not protected by a scheme and/or he has not been provided with the prescribed information and/or the scheme administrator does not confirm that their deposit is protected then he can commence proceedings against the landlord under HA 2004, s 214. Although it appears that if, by the time of the hearing, the landlord has complied with the requirement there is no sanction. If the court finds that the landlord is in breach then it must order up to three times the amount of the deposit to be paid to the tenant within 14 days (s 214(4)) as well as ordering the deposit to be paid either into the custodial scheme or to the tenant (s 213(3)).

[bedlington83]

Are you suing them for just the deposit or the deposit + 3 X deposit penalty for failing to protect it? The £1500 could be just deposit or four lots of £375