Couple of queries regarding deposit

[bristoltiger]

Hi Everyone,

 

I've just had a read of some of the sticky threads - really useful.

 

My situation is much like everyone elses - I've paid a deposit, it wasn't put in the protection scheme, I moved out and I've had to fight to get my deposit back.

 

The current situation is this.....(there is no agency involved)

 

1) I gave my 30 day notice to the landlord in writing and asked if we could meet up to sort out keys and deposit

 

2) I phoned him on the day I was moving out to ask if we could meet up to sort out the deposit. He told me he was in Spain (although there was no international dial tone when I called) and that he'd call me in a weeks time. This didn't happen. I kept calling and sending him texts, but no reply. Eventually I got hold of him and he said he was busy with a VAT return and would call me in a week. I waited a week and called him, nothing. I eventually got a text late one night saying he was too busy to visit the property and would put a cheque in the post. I waited another week and still nothing.

 

3) Totally frustrated by the run around I researched what I could do legally. I found out then he hadn't put the deposit in a protection scheme - bingo. I therefore drafted a Letter before Action and sent it to him.

 

4) Within about 2 days he sent me a cheque for £485 after taking out £150 and he listed in his letter various reasons which I'm not happy about:

 

- he says the shower was "dirty". Well, it wasn't, it was cleaned twice. I suppose I can't prove this as I forgot to take pictures

- he says I should have power washed the decking outside and cut back the trees and shrubs. There is nothing in the tenancy agreement about the garden and he didn't provide any tools. Am I responsible for this ?

- he says I didn't clean the flue for the log burner. I used the log burner 3 times, again there was no mention of this in the tenancy agreement.

- he says I left the towel rail on and it cost him extra electricity

- he says the position of the sky dish is wrong and needs to be taken down

- he says the carpets needed cleaning although I hired a Rug Doctor and cleaned them before leaving

 

All of this really annoyed me because had he arranged to meet me at the property we could have gone through all this and I would most likely have said fair enough. But he didn't, he's just messed me around, and its been 8 weeks since I left the property during some of the hottest times of the year so the garden will have overgrown and I don't know if the property is even in use by someone else now.

 

I don't have an inventory. He may have taken one, but I certainly don't have a copy and I'm fairly sure I didn't sign on. I'm not 100% on that as it was a few years ago but surely it would be with the tenancy agreement if I did.

 

So I wrote back to him saying I didn't accept his claims and I wanted my deposit back in full or I would proceed with the court claim for the 3 times deposit.

 

He's written back again saying that if I pursue this, he will come after me for "loss of rent" due to him being unable to rent the property. Can he do this? I'm so angry because I've never not had a deposit returned in full and if he had just met up like any normal person we could have sorted it face to face.

 

Now I don't know whether to proceed with the claim or just accept the £150 loss, but its becoming more of a principal thing now. Everything I've read suggests I shouldn't have a problem claiming the 3 times desposit, but I'm just unsure if he can then counter-sue me for anything?

 

Thanks for any advice

 

Tim

[rebel11]

Hi bris

 

Have a read of number 14 in my

signature.

[Steve__M]

Unfortunately, pursuing LL for the 3x penalty is no longer an option now you have moved out. This is as a result of recent case law. It's possible the LL doesn't know this and so could be scared into paying up under threat of the penalty.

 

Your only other option is a normal court claim for the 150 which you ought to win if there is no inventory. But nothing is guaranteed.

[Snorkerz]

Unfortunately, pursuing LL for the 3x penalty is no longer an option now you have moved out. This is as a result of recent case law. It's possible the LL doesn't know this and so could be scared into paying up under threat of the penalty.

 

Your only other option is a normal court claim for the 150 which you ought to win if there is no inventory. But nothing is guaranteed.

Agreed. print off sections 212 to 215 of the 2004 Housing Act and show them to him http://www.legislation.gov.uk/ukpga/2004/34/part/6/chapter/4 in particular 214(4). Then read (for your own information only) http://tenancyanswers.ucoz.com/index/section_214_claims/0-45

[Ed999]

My comments only apply if the premises are entirely within England and Wales, and you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - have exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and you were over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

My situation is much like everyone elses - I've paid a deposit, it wasn't put in the protection scheme, I moved out and I've had to fight to get my deposit back.

 

 

Tenancy Deposit Scheme

 

If the tenancy has ended: you CAN sue for the return of your original deposit; but you CANNOT sue for the statutory penalty of three times the amount of the deposit - except, perhaps, if your claim is made under section 213(5) of the 2004 Act.

 

The outcome is uncertain. It is not clear whether a claim under section 213(5) can succeed after the tenancy ends; nor is it certain whether a landlord can comply with section 213(5) more than 14 days after the deposit was paid; and it's likely that a landlord, faced with a claim for repayment of the original deposit, will allege disrepair by the tenant in order to try to persuade the court to let him keep it.

 

 

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, under the Housing Act 2004, if you were granted a shorthold tenancy:

 

• Tenancy Deposit Scheme

 

• Tenancy Deposit Protection - First High Court Decision (Draycott v Hannells Lettings Ltd)

 

• TDS eligibility, implication of breach and legal questions answered

 

 

A tenant can apply to the Court under section 214 of the Housing Act 2004, on the grounds that section 213(4) or 213(6)(a) or 214(b) has not been complied with.

 

The Court of Appeal decided in the case of Tiensia v Vision Enterprises that if the Landlord protects or repays the deposit even as late as the day of the court hearing, the court cannot award the penalty of three times the amount of the deposit.

 

This was NOT affected by the High Court decision in Potts v Densley (6th May 2011). In Tiensia the landlord had protected the deposit at a time when the tenancy still existed; in Potts the landlord protected it after the tenancy had ended. The Court rejected the tenant's argument that it was too late for the landlord to protect the deposit once the tenancy had ended [see paragraph 55 in the Judgement].

 

In a further development, the Court of Appeal decided in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected, that section 214 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its protection in a TDS scheme) are available to the Court. The Court of Appeal said that this is so only when the tenancy is still in existence, that therefore the penalty for non-protection of the deposit is NOT available after the tenancy has come to an end [see paragraphs 37 and 42 in the Judgement], and that a tenant therefore CANNOT succeed in a section 213(3) claim once the tenancy is over.

 

Tiensia and Potts have to be considered in the light of the decision in Gladehurst; but only time will tell which is the more important decision.

 

The practical effect of Gladehurst is that the tenant must make any claim under section 213(3) at the BEGINNING of the tenancy. Remember, a shorthold tenancy can't be brought to an end by the landlord, by notice, in the first six months, nor during any fixed term; and it can't be ended by a section 21 notice at any time after that, either, if the deposit is not protected.

 

Hence, as a result of Gladehurst, a claim under section 213(3) for failure to protect the deposit can ONLY be made BEFORE the tenancy has ended. The Court of Appeal in Gladehurst has overruled the High Court in Potts on this point.

 

 

Due to the above-mentioned court decisions, the practical effect of a tenant suing for the statutory penalty is likely to be that a properly advised landlord will protect the deposit, so as to avoid the penalty, if the tenancy still exists. Even though that's not what the court claim asks for, such protection is some benefit to the tenant.

 

Suing for the statutory penalty, or merely threatening to, might cause the landlord to return the entire deposit, without any deductions, thereby resolving a dispute.

 

None of the foregoing prevents the tenant succeeding in a claim for the return of the original deposit (a claim which can only succeed AFTER the tenancy ends, as the deposit is security for non-payment of the rent and for damage caused during the tenancy).

 

 

Opponent's Costs

 

A tenant can sue for the return of his deposit in the Small Claims Court [sCC], a part of the County Court where you can't usually be required to pay any of your opponent's solicitors fees if you lose, provided the deposit is LESS than £5,000.

 

In contrast, since 2009 a tenant suing under section 214 of the Housing Act 2004, for failure to protect the deposit, must use the CPR Part 8 procedure (even if he is also claiming return of the original deposit):

 

• http://www.depositprotection.com/documents/housing-act-2004-county-court-applications.pdf

 

A Part 8 claim can't proceed in the small claims court, even if the amount claimed is less than £5,000. So if the tenant loses, he will be ordered to pay the landlord's solicitors and barristers fees.

 

The Part 8 procedure is set out here:

Civil Procedure, Part 8

 

 

Appealling Gladehurst

 

There are several reasons why the Court of Appeal decision in Gladehurst might not apply in your case.

 

But I won't go into them here unless you insist, because the amount of money involved in your case is perhaps too little to justify the expense and risk of attempting to challenge the ruling in Gladehurst.

[Ed999]

My comments only apply if the premises are entirely within England and Wales, and you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - have exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and you were over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

I gave my 30 day notice to the landlord in writing and asked if we could meet up to sort out keys and deposit

 

 

How to End a Periodic Tenancy

 

If no fixed term was agreed, or it has ended, a periodic tenancy arises (with a period of one week or one month, depending whether rent is paid weekly or monthly).

 

To end a periodic tenancy, if rent is due monthly a tenant must give one month's notice in writing, expiring on the last day of a rent period (but if the tenancy agreement requires a longer period of notice, the tenant must give the period of notice required by the agreement); and the notice can even end the tenancy within the first 6 months.

 

Where the common law requires a longer period of notice, the common law prevails. At common law, to end a periodic tenancy one period's notice must be given, in writing, expiring on the last day of a rent period: so if the rent is payable every 2 months, at least 2 months notice must be given; or if the rent is due quarterly, at least one quarter's notice must be given; and so on.

 

To end a periodic tenancy, the landlord and the tenant can agree a surrender of the tenancy, by agreement in writing, in a deed, on terms to suit themselves (including setting any date of termination convenient to both parties).

 

 

Notice to End a Periodic Tenancy

 

You say only that you gave "30 days notice". It is not clear, therefore, whether you gave valid notice. If you force the landlord to consult a Solicitor, this could be your downfall.

 

The termination notice given by you is invalid if it was not given in writing, or if it did not give at least 1 clear month's prior notice, or if it did not end on the last day of a rent period.

 

A tenant is required by law to give at least one full month's notice. Example: The landlord or his agent MUST receive the written notice by not later than 20th May, if it is to take effect on 21st June - the last day of a rent period if rent is due on 22nd June; a notice received after 20th May could not be effective until, at the earliest, 21st July.

 

If you move out without ending the tenancy, the rent will continue to run and you can be sued for non-payment. In that situation, if you do nothing a periodic tenancy will only end if and when the premises are re-let. A re-letting by the landlord always ends the previous tenancy, and stops the rent continuing to accrue due, because re-letting is an act which is incompatible with the continuation of the original tenancy.

 

 

If the tenancy still exists, and the rent is still running, that might explain the landlord's remarks regarding suing you for loss of rent.

[Ed999]

My comments only apply if the premises are entirely within England and Wales, and you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - have exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and you were over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

he sent me a cheque for £485 after taking out £150 and he listed in his letter various reasons which I'm not happy about:

 

- he says the shower was "dirty". Well, it wasn't, it was cleaned twice. I suppose I can't prove this as I forgot to take pictures

- he says I should have power washed the decking outside and cut back the trees and shrubs. There is nothing in the tenancy agreement about the garden and he didn't provide any tools. Am I responsible for this ?

- he says I didn't clean the flue for the log burner. I used the log burner 3 times, again there was no mention of this in the tenancy agreement.

- he says I left the towel rail on and it cost him extra electricity

- he says the position of the sky dish is wrong and needs to be taken down

- he says the carpets needed cleaning although I hired a Rug Doctor and cleaned them before leaving

 

... I don't have an inventory. He may have taken one, but I certainly don't have a copy and I'm fairly sure I didn't sign on. I'm not 100% on that as it was a few years ago but surely it would be with the tenancy agreement if I did.

 

 

Tenant's Repairing Obligations

 

The tenant has a duty to treat the property in a "tenant-like" manner. This is defined by the Court of Appeal in the leading case of Warren v Keen [1953] 2 All ER 1118, CA.

 

Basically, the tenant must take proper care of the premises, and must repair damage to the premises caused, wilfully or negligently, by him, his family, or his guests.

 

But if the house falls out of repair owing to fair wear and tear, lapse of time, or any reason not caused by him, then the tenant will not be liable to repair it.

 

 

Deduction for Dilapidations at end of tenancy

 

Only the court can decide the outcome of each individual item of alleged disrepair. All we here can do is summarise some matters which you might usefully invite the court to take into account.

 

 

If the landlord alleges damage, he must prove it.

 

If there is no check-in inventory, the landlord really doesn't have a leg to stand on; so the tenant is in a stronger position where there is no check-in inventory.

 

The landlord isn't allowed to improve the premises through "betterment" (replacing an old or worn item with a brand new one).

 

Likewise, the tenant is not liable for the cost of cleaning or repairing an item which was already soiled or damaged before the tenancy began. A check-in Inventory can be evidence that an item was already in bad repair before the start of the tenancy.

 

 

Read this document - Fair Wear and Tear

 

And read this document - Wear and Tear Guide

 

Those documents explain some aspects of the law regarding fair wear and tear, applying the principle that a tenant is NOT liable to pay for the cost of remedying ordinary wear and tear.

 

This link gives examples of what is fair wear-and-tear, and what is not:

 

• http://www.rta.qld.gov.au/print_page.cfm?menuItemId=510.00

 

 

Also, the landlord can't ask the tenant to pay (i.e. out of the deposit) for the cost of repairs which the law requires the landlord to do. What those repairs are is explained in this FAQ -

 

• Disrepairs in privately rented accommodation

 

A detailed analysis of the landlord's repairing obligations, prepared by a Barrister, is set out at -

 

• Interpreting Repairing Covenants

 

 

Any deposit paid at the beginning of the tenancy belongs to the tenant. So the burden is on the landlord to prove that any deduction from it is justified.

 

Read the FAQ about what deductions the landlord can lawfully make from the deposit -

 

• Unfair deposit deductions

 

 

There is a vast amount of additional information about the tenant's legal rights in cases of disrepair on the website of Shelter, the housing charity -

 

• Repairs and Bad Conditions

 

 

Reasons for resolving a dispute in the tenant's favour, in similar cases, have included:

 

1. Grossly inflated charges for the repair work.

2. No receipts produced for the cost of work supposedly carried out.

3. No competitive quotes sought for the cost of the work.

4. No mention in the check-in inventory of the condition of the item.

5. No opportunity given to the tenant to put right damage, despite the tenant offering to do so.

6. The item claimed falls under maintenance, for which a tenant is not liable.

Edited July 30, 2011 by Ed999