Advice needed on way forward with deposit withholding

[khara]

I started my tenancy in November 2008 for an initial period of 18 months, which completed to term and the tenancy was further extended in May 2010 for a period of 1 year with a 6 month break clause. I exercised the break clause in November 2010 and finally moved out on 15th January 2011. For the period of the tenancy, the rent was £850 per month and a deposit of £1275 was paid to the letting agent. At the time of the check in a inventory report was made for the property (The property is an unfurnished 2 bedroom semi detached house with garage and garden). The deposit was registered with TDS apparently. The letting agent also carried out quarterly inspections for the tenure of the lease.

 

When check out was done, an inventory check was performed by an independent inventory clerk. While I was present, there was no one from the letting agent present. At the end of the check out, the inventory clerk found no major issues with the property and was satisfied that it matched the check in state. As per his words, the maximum the letting agent could charge was for 1-2 hours of cleaning. I was not issued with any copy of his report which he said would go directly to the letting agent.

 

2 days later the letting agent called saying she was not satisfied with the cleaning of the carpet and the state of the walls in one bedroom due to condensation. The carpets in the house had been professionally cleaned 1 day prior to checkout at my expense and receipt submitted to the letting agent , but apparently this is not enough and wants to withhold money for further cleaning.

 

There had been condensation problems with flows running from ceiling to floor on certain walls and this has been highlighted by me to the letting agent at the periodic visits. The LA now claims that it is my fault (despite documented evidence of window vacuum seal failure, improper insulation etc) and is going to withhold money for painting. Out of good faith, I already painted one wall that was worst affected but now the LA wants me to paint all the walls.

 

1 week before checkout, the LA had done a pre-inspection check and I had confirmed in email what things needed to be done. These included only the two points above, which I completed and have evidence to prove that. But apparently the LA is not satisfied with the quality of the work.

 

I have not yet been provided an account of how much money is going to be withheld despite repeated requests neither has my deposit been refunded.

 

What do you think are my best steps forward? I was planning on writing a letter on the lines provided at the sticky on this forum on unfair deposit. Is really court action the best way? The TDS does provide an arbitration scheme but I am not sure whether they are truly impartial? I am even ready to pay £50-75 just to be rid of this headache, but the LA hinted at £300 or so (though nothing concrete has been said). I am quite sure that nothing of that scale has been damaged.

 

Your views are most appreciated.

[Planner]

Court should be last resort. You should always use the arbitration service in the first instance.

[khara]

But the pre-condition for arbitration is that the decision is binding and there is no recourse to courts. So it is one or the other not both

[Planner]

There is always recourse to the courts. You should use the arbitration scheme, thats whats it therefore. If you dont, the court will ask you why you havent used it - what will your answer be?

[khara]

Planner,

 

Are you sure about that? As per this link:

 

england.shelter.org.uk /get_advice/paying_for_a_home/tenancy_deposits/deposit_protection_schemes

 

. Each scheme will contain an ADR service. When a dispute occurs, and if you and your landlord both agree to use the service, you will have to agree to accept its decision and will not be able to apply to the courts. If you or your landlord do not agree to use the ADR service then the dispute will usually go to the county court.

[Planner]

Planner,

 

Are you sure about that? As per this link:

 

england.shelter.org.uk /get_advice/paying_for_a_home/tenancy_deposits/deposit_protection_schemes

 

Absolutley 100% positive. No company can remove our right to access to the civil justice system.

 

But why wouldnt you accept the findings of arbitration? They are impartial.

[khara]

Oh I will probably use the arbitration service, but just need to be sure of what I am agreeing to before I do that. Their website says decision is binding and gives the impression there is no recourse to county courts. I am not a UK citizen so not really sure what rights I have in this matter.

 

It is not the question for money, but I cant stand the thought of being ripped off by someone even after making best efforts to conform to the rules.

[Planner]

Oh I will probably use the arbitration service, but just need to be sure of what I am agreeing to before I do that. Their website says decision is binding and gives the impression there is no recourse to county courts. I am not a UK citizen so not really sure what rights I have in this matter.

 

It is not the question for money, but I cant stand the thought of being ripped off by someone even after making best efforts to conform to the rules.

 

There website says there decision is binding in so much that they dont have a appeals procedure for decisions you dont agree with, it certainly doesnt mean (or say so as far as I can see) that this precludes you taking court action. You should note that any court case is likley to be significantly disadvantaged (I suspect in the same way going straight to court and not using arbitration in the first place) should you recieve a decision against you - sort of a catch 22!!

 

Are you an EU citizen? - you are better ringing the courts and asking who can and cannot use the court process.

[khara]

I am a permanent resident but not a EU citizen.

 

I agree with the Catch 22 and this is the main issue with ADR: I may not want to use it, but am forced to do so: the courts penalize me if I dont and I am uncomfortable with someone at the other end of a email conversation making decisions. For example they say they are "evidence based" and will consider only evidence produced. Fair enough, but in my case the check out report is only with the LA and they wont give me a copy.

 

How impartial are the ADRs given that the LL probably pays for the DPS?

[Planner]

 

How impartial are the ADRs given that the LL probably pays for the DPS?

 

Well

 

TDS provides a number of case studys so you can see on whos side they come down on in various scenarios http://www.thedisputeservice.co.uk/index.php?p=206

 

And there are some further examples here:

 

http://www.idrs.ltd.uk/?p=9&lang=e

 

Your dispute seems reasonably straight forward.

 

In terms of the 'evidence' you have available, if you are concerned that the only 'evidence' is the check out report held by the letting agents what are you going to show in court where the onus to rebute the othersides case is likley to be significantly more?

[khara]

Thanks for the links.

 

Well what I have is photos, receipts of work done and email records of what was agreed. But the check out report is probably the key I would think since it is done by a neutral observer.

 

If LL does not present a check out report to the ADR or a judge in spite of having one, is it assumed to be a point against them?

 

A new development is that the LL went ahead and had the whole house repainted. I am assuming I will be hit with the cost. Even the current tenant said this is not necessary....(I know the current tenant).

 

The impression I am getting is that the LL can do pretty much what he likes and then present a bill. The tenant has to rely on the mercies of the ADR since courts frown upon people not using it first. ADRs have no powers to compel people to produce evidence, like a judge does.

 

So your advice would be to go to ADR and hope for the best?

[xoAmyox]

You talk as though using the ADR is a bad thing....

 

I believe it to be quite the opposite, the mediators seem to look favourably on tenants, and ask for a lot more 'proof' that perhaps a court would in most circumstances. The decision is NOT binding and you can still appeal to the courts afterwards should you wish.

I have seen many cases over various law websites, forums etc where tenants have done well using the mediation, and as the cost to you is nothing, I don't see why its not a good option.

[khara]

Hello

 

An update on the above story:

 

 

I finally went in for the ADR. Both the letting agent (LA) and me agree on the amount not in dispute (around £900), and hence we went into joint declaration option from DPS which supposedly allows one to get the money not in dispute while the disputed amount is retained pending resolution of dispute.

Both the tenant and LA has to agree to the ADR facility, which I understand. While I signed up for it (and the LA initially agreed on it), the LA is now not responding to DPS. On contacting the LA, he claims that he is awaiting approval from the landlord: it has been 3 weeks since he is been doing that, and more than 45 days since end of tenancy.

 

I contacted DPS asking how long they will wait for the LA's response , and they said that there is no limit, it could be indefinite. Meanwhile, I cant go in for the single claims option (which allows one to claim the deposit because LA/LL is non responsive) because the LA does respond (one has to make a statutory declaration). So I am currently out of luck, cant even get the undisputed money.

 

And advice?