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Another 'deposit not being given back' problem!


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Hi everyone,

Hope you can help.

 

We moved into a property in mid 2003 and paid £2100 deposit to the letting agent.

There was an inventory done and it stated heavy marking to carpet through out, scuffs and W&T on walls, as well as various other general W&T.

 

Every year we have signed a new tenancy agreement, until last year starting 1st dec 2007 ending Nov 2008.

Before the end of the tenancy the letting agent called, as they did every year, and asked if we would be signing for another year.

We said no.

The landlord called later and asked if there was anything he could do to get us to stay, we said no.

 

We moved out the day the tenancy ended and used the cleaners the agent suggested at a cost of £400.

 

The check out report was done on 15th Dec but was not emailed to me, after many times of asking, till 29th Jan 2009.

 

The landlord then emailed saying he was going to deduct over £1300, which I stated that I disputed.

 

Now, when we moved out the carpet did have some extra stains, but it was already in need of replacement when we moved in.

It did require repainting, but after 5 1/2 years and it being in only fair condition when we moved in, you would expect to have to repaint.

 

In all the time we were there the only repair was to replace a fridge when it broke, and a dishwasher when that broke down.

 

He sent us a cheque for the £790 that wasnt taken from the deposit, but when we sent a solicitors letter he cancelled the cheque and now says he made a mistake sending it as he got the figures wrong and requires all the deposit.

 

Im really confused how he can pay back any money, shouldnt the deposit still be held until we agree on deductions?

We have opted against mediation and decided to go straight to small claims as i he didnt notify us with in correct time scale for deductions.

Is this right?

We are ment to be going to court in a few weeks but i didnt know about the TDS until reading here.

We were never notified about where it is being held, apart from that the agents were the deposit holders.

Sorry if im being really stupid, I just dont understand.....if we were in teh TDS how could they send a cheque for £790 if we havent agreed to the deductions?

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Im really confused how he can pay back any money, shouldnt the deposit still be held until we agree on deductions?

We have opted against mediation and decided to go straight to small claims as i he didnt notify us with in correct time scale for deductions.

Is this right?

We are ment to be going to court in a few weeks but i didnt know about the TDS until reading here.

We were never notified about where it is being held, apart from that the agents were the deposit holders.

Sorry if im being really stupid, I just dont understand.....if we were in teh TDS how could they send a cheque for £790 if we havent agreed to the deductions?

 

Pretty sure all damages after that length of time would be under fair wear and tear. Especially the carpet. The life span of a carpet is only 7 years I believe, so should be replaced at no cost after that time.

 

You should have a read of one of the blogs on this site http://www.landlordlaw.co.uk/blog.ihtml, scroll down till you find "Tenancy deposit arbitrations - why landlords keep losing" (might be on the second page).

 

 

It states He makes the point first that the tenancy deposit belongs to the tenant, and the landlord, if he wants to make deductions, is making a claim which he will have to prove by evidence. And if you do not provide this, you will lose your claim, the arbitrator is unlikely to write and ask you for it. For example:

  • Inventories - these need to be a detailed condition report on the property not just a list of the furniture in it. To make a claim for damage to furniture (for example) you are going to have to prove that it was in good condition at the start of the tenancy. It is best that this is done by an independent firm of inventory clerks
  • You will also need a check out report, again this should be done by the independent inventory clerks
  • Photos are generally of no value as they could be of anywhere. Presumably if they are signed by the tenant and inventory clerk on the reverse and dated they should be acceptable. If used they should be clear and have something (such as a ruler) to show scale.

Barry then explains how an adjudicator would approach a claim for a damaged carpet.

  • He would want to know the condition of the carpet both at the start and at the end of the tenancy
  • Evidence of when it was purchased
  • The cost of replacement
  • And the normal life of such a carpet
  • He would consider whether it could instead have been cleaned
  • Or whether any stain is relatively insignificant and can be left
  • In his award he will consider fair wear and tear
  • And base his award on the cost of replacement carpet but not underlay
  • For a ruined 3 year old carpet, the landlord (he says) will be lucky to get 40%, even if he can prove everything, as a tenants deposit is not a 'new for old' insurance policy

In other words, in your case... after 5 1/2 years, and presumable the place wasnt new when you moved in, you would be pretty hard pressed to find the damages you have had to pay.

 

In regards to the TDS, yes, your deposit should have been protected by one of the three TDS's, not by the LL or the Agent. If it is unprotected, you can sue for 3x the deposit.

 

I'd suggest that you look into this further, as it appears you have a pretty strong case for it.

 

The small claims is correct for the deductions, but (someone will probablyu correct me here) I would look at withdrawing your small claims claim, and then lodging a claim for your full deposit, and 3x the deposit for non compliance of the HA 2004. A total of £6400. This will not be through the small claims court however, and you will be exposed to your LL's costs should you lose. But it appears a pretty much open and shut case to me.

 

Then it will be up the the LL to prove the deductions, and if he hasnt paid them back by the time you go to court, you have a pretty clear cut case for the 3x penalty.

 

His only defence to the TDS non-compliance would be to repay the deposit before trial, which would mean that you get your deposit back, so all good there.

 

Thoughts from others?

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Yep agree, should put deposit in TDS sceme as new contract in Dec 2007, so sue for all the deposit plus 3x deposit. as tenancy ended, he looses. Deductions will be agreed and sorted at same time, again what he is claiming for is more like betterment and no allowance for wear and tear - carpets 4-5 years, but depends on type and use of course ( house full of kids less/on own more ).

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