Deposit dispute - landlord withholding for structural issues

[clairey]

Firstly, I have to say that this community is invaluable and I have come back for advice so many times over the years. So thank you in advance.

 

My problem - I recently moved out of a property that I shared with a flatmate. We had a joint tenancy agreement that expired and I found someone to move in immediately after. We paid seperate deposits.

 

In my last couple of weeks at the property there was an issue - we noticed black mould appeared in the lounge. At first we wiped it off as it's an outside wall, it had been raining and I have asthma, but quickly within about a week or so, it became apparent this was not normal and contacted the landlady in the usual manner to inform her.

 

She sent in men and it transpired that the tiling upstairs in the bathroom had come away and it had been a sustained period which resulted in water running down the wall. I moved out while they were still examining and making repairs. But since it was a structural issue not caused by us, I didn't think anything of it.

 

It's now a month later and no deposit. I chase and get a reply that due to the fact that I neglected to inform the landlady quick enough about the situation, she would be keeping my deposit. She claims that we *concealed* the fact that there was problem in the bathroom and as a result caused her to have a far bigger problem than if we'd let her know earlier.

 

Serioiusly, this is such bull. When I moved in, the tiling and grouting was already in disrepair. I didn't notice any difference at all. If I had, I would have let her know. It's no skin off my nose and I hated the bathroom anyway because it was so unkept compared to the rest of the property. I am no decorator or builder - I genuinely had no idea there was a problem until we examined it when the mould came back.

 

She quoted section 11 of the tenancy agreement at me: “Tell us about any repairs or faults that we are responsible for in the structure or outside of the property, in any installation or in the shared areas.” Clearly I did tell them about the problem when I realised there was one.

 

I will be disputing her claim with the DPS because I honeslty don't think it's fair that I be held responsible for something I informed her of as soon as I was aware of it, but I just wanted people's opinions/advice about whether she is right or not here? It's quite upsetting. Also, you should know, that in the time I was there, I did inform her of any problems. There was even a time when water dripped into the living room on the other side and we told her straight away, but since it didn't happen again, it was just an FYI thing. We were very good with stuff like that.

 

Thanks in advance.

 

Claire

[Snorkerz]

You'll be fine. There is a legal principle of 'tenant-like behaviour' which is what the section 11 is referring to, but you can not be expected to know what is happening behind the tiling.

 

It will take slightly longer, but you may prefer to decline arbitration and sue via the small claims court. That way you will get a chance to explain the situation face-to-face with the judge instead of relying on a letter to the arbitrator. It does cost to sue, but not a horrendous amount and presuming you win, any fees you have paid will be added onto the amount the landlord owes you.

[clairey]

I have to admit, suing and going to court scares me a little. There's also the added complication that the landlady actually lives in Qatar. Would she have to attend court if I sue her in small claims? I'm not in need of the deposit so the timings I don't mind.

 

So at the moment she still hasn't responded to my request via the DPS. She just informed me via email that she won't be returning any of it. I replied to her email contesting that. This is what I wrote:

Hi S,

 

This is a very confusing email to receive! As you are aware, we informed you immediately that it was evident there were any problems in the house - this is not something we would ever conceal and have no reason to at all. We did indeed wipe off some of the mold when it appeared - this was about a week before we informed you of the problem, I think. We removed it because I am an asthmatic and leaving it would have been detrimental to my health. We had at this point thought the mould came from it being an outside wall and there had been rain, but it was clear when it re-appeared that this was not the case and you were informed immediately. I must point out that I had no way of knowing what the mould meant - I am not familiar with buildings or structural issues with houses.

 

Upstairs in the bathroom, I am afraid to say, the tiles never looked different to me until we examined them when the problem downstairs occured - this was at the time we informed you. I personally was shocked that the source of the problem was in the bathroom as I had not noticed anything different myself. Had I been aware there was a problem with the tiles in the bathroom, I would have informed you straight away. Unfortunately, however, when I moved in the tiling in the bathroom was already uneven and in quite a poor state of repair, thus it was impossible to see the difference on glance. It required an examination of the tiles (e.g. pressing on them and getting up close) to gleen that there was a problem with the grouting or anything like that.

 

I am certain that if there was a problem in the bathroom, then this was something that had been overlooked when the tiles were layed since they showed no outward signs of being any different from when I moved in. This is wear and tear and not due to any neglect by me or R. Whenever there has been an identified problem previously, we have informed you straight away, as we did so on this occasion. However, you state that we concealed this issue - that is completely incorrect. That's quite a strong accusation and, after looking after your property and keeping it lovely all the time I lived in it, I feel quite saddened by that comment.

 

I will be challenging this through the DPS if this is your decision. I don't feel the quotation from the contract is a case for keeping my deposit as we clearly did inform you.

 

Best,

Claire

 

Obviously the ball is now in her court and I will consider carefully the option of going via small claims instead of ADR as advised.

 

Thank you.

 

Claire

[Snorkerz]

Small claims court is nothing to worry about, the claims are sometimes heard in the judges office (chambers) but even if it is in a court room it is still pretty informal.

 

The landlady would either have to attend court, or get a solicitor to attend. Well, she could try writing to the court and not attending, but the judge won't be very impressed with that and it will give you the chance to put your side of the story uninterupted.

 

I think a court claim is definately the way to go - she can do arbitration on paper and both sides have a level playing field. If you do court and she doesn't attend, then the playing field suddenly slopes very much in your favour. When she realises how much defending a claim in court will cost her, I suspect she may back down.

Of course ADR does have the advantage of not requiring any money up-front.

 

Out of interest, did you have a postal address (in England/Wales) for the landlady or agent - somewhere where you could serve legal documents (like your notice)?

[clairey]

Hi, yes, she used an address in England for the DPS, so that's the one I would use to serve docs. From what I gather from a quick bit of research, for a £500 deposit, it would cost £50 to take her to court? That seems an ok risk to me. I suspect she would find it extremely inconvenient if she or a solicitor would have to attend. She would have to pay either way - her flight and time to come back here, or the cost of the solicitor attending. That does seem like a better course of action. If she won and I failed to convince the judge, would I have to pay her costs (e.g. court fees, cost of attending from Qatar, etc?)

 

Thank you all!

 

Claire

[Snorkerz]

If you do it online the fee is £35 to file the claim, and if it does go to a hearing (ie she doesn't back down) there will be another £55.

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex50_e.pdf

 

IF she counterclaimed against you, and WON, you would be ordered to pay her counterclaim fee (£35)

 

If she won (and I really can't see that happening) the worst you could face is around £50 for her time in court and a similar amount of expenses (her phone calls, photocopying, postage, car parking etc). The latter would all need receipts.

 

You may want to get a book from your local library (or Amazon) about the 'small claim process'. I have one written by Patricia Pearl.

 

Remind me, when you moved into the property, was there an inventory/condition report prepared and signed by you or your co-tenant? In fact, was the deposit in yours or your co-tenants name?

[clairey]

Ok, thank you very much for the court advice.

 

The deposit was in my name only. Myself and co-tennat paid her the deposits sperately and so they also were protected separately.

 

There was an inventory. I don't think I signed it because I moved in a lot later than my co-tennat (though I was paying full rent and on time), but even so, the inventory was only a list of furnishings in the house that belonged to her - it made no reference to condition of anything such as walls, windows, flooring, etc, not even the items listed. It was just set out like the following for the bathroom for example:

 

Bathroom

Shower curtains

Bath matt

Bin

 

That is the grand total of the items for the bathroom. Since moving in I replaced all of those items for new as they were old and gross when I moved in.

 

Thanks,

Claire

[Snorkerz]

From what you have said, the landlord will not be able to prove that the tiles were not already becoming detached from the walls when you moved in. That is what she would have to prove to even have half a chance of success.

 

I can assure you that she has not spoken to her solicitor about this, because they would be giving her the same advice I'm giving you. There are no guarantees in life, but her chances of winning such a claim are lower than a snails belly button!

[clairey]

Okay, that's good to know. I like those odds! She did say in her email that she took legal advice when she quoted section 11 at me, but I was doubtful of that anyway. I understand her frustration - the cost of the repairs/improvements is high and she feels it could have been avoided if they replaced the tiles earlier. But the bathroom should have been retiled before we moved in if that's the case since they didn't change outward appearance during my tenancy, so there's no way of knowing when the problem started. All we have said is that we informed her as soon as we became aware of the problem and that was when mould appeared downstairs and it was clear something was not right.

 

Thanks for your advice. I will let you know what happens next.

 

Claire

[clairey]

Hi,

 

Just a quick update. I received an email this morning that just said:

 

I have phoned the DPS who have indicated that we need to try to come to some sort of agreement. Given the scale of the damage, would you have an offer which you think is reasonable?

 

Am I right in thinking the DPS probably told her she didn't have a leg to stand on, so she's trying her luck? Or would this be something they advise before suggesting ADR?

 

I don't feel that I am responsible for any of the cost of her structural repairs and don't wish to make her an offer. Thoughts anyone on this development?

 

Thank you!!

Claire

[Snorkerz]

They wouldn't have given her any advice - the conversation was probably something like; "you should try to come to an agreement first but then you can use the ADR service".

 

They won't have told her 'no chance' because the tele-girls are not in a position to make such a statement.

 

Your response should be; "I am afraid I do not feel responsible for this damage so I am not able to make you an offer. I have taken advice and must advise you that if you do not agree to a full refund within 7 days I shall take legal action".

[mariner51]

"if you do not agree to a full refund or consent to ADR within 14 days I shall take legal action (don't say it if you don't mean it)".

 

Just my opinion

[clairey]

Now, given Snookerz' advice, I wasn't going to suggest/agree to ADR - do you think I should? I think court seems like a more troublesome prospect for her, in addition to being a better avenue to state my case clearly.

 

I can certainly amend to 14 days as I guess that is a more reasonable timeframe.

 

I do, however, want to avoid court if possible - you don't think the email should include reasons why I won't make her an offer?

 

Thanks, both!

 

Claire

[mariner51]

Claire, the action you take is entirely your decision. Letter before Action normally allows 14 days for consideration and reply.

My thought on ADR was most LLs try to avoid it so it may make you appear reasonable if it goes to SCC. Also you would have to pay SCC fees up front, until you win. ADR is free and oft favours the T. No reasons, unless you want to help with LL defence. Rather than say 'I don't feel I am liable (emotion) try 'I don't believe I am liable' Beliefs can be honestly held.

[clairey]

Thanks. I understand it's my decision, but since I know next to nothing about these things, I am here looking for guidance and advice. I could start the ADR process, but I don't think the LL would reject it. Based on her email she fully believes she is entitled to my deposit and would submit her case via that process. Then it would not go to SCC at all. Snookerz advice suggests I would have more success in court than with ADR. My feeling is also that SCC would be a more unattractive option for the LL as she lives abroad. Whereas she would feel it is easier to submit a defense using the ADR process.

 

Thanks for the advice.

 

Claire

[The Carpet Cleaners]

she has the choice about whether or not to use the ADR, she will have no choice if you take it to the SCC.

 

I would use the method that she would least like, ie the SCC the LBA might be enough to make her release the funds. Although I doubt it, she would then have the expense of coming back to defend in court (you will not be liable for any of her expenses win or lose).

[mariner51]

LL does not have to return to attend SCC, she can make postal defence or appoint a UK solic to access LA records and attend on her behalf.

[Snorkerz]

Mariner, I personally feel that SCC would be better for OP as she would be able to explain to a judge the physical situation, which she may not be able to do so well on paper for ADR. OP has no obligation to accept ADR, the court is her legal right.

 

While OP will be able to offer oral explanations to the judge, it is much less likely the landlord would - giving OP further advantage. I accept they could send in a written defence - but that won't be given as much credence as an oral testimony - and they could employ a solicitor - but if the LL takes advice they will realise that that would be a VERY big financial risk.

 

ADR does have the advantage of being cheaper and quicker.

[clairey]

Hey guys,

 

Just to let you know that I informed the LL today that I would not be making an offer and gave her 14 days to give me a full refund or I would take legal action. I am in agreement with Snookerz and TCC on the SCC being the right option, having weighed the pros and cons. I don't want to be viewed negatively by the court for not using the ADR service and seem unreasonable, however I think given all the considerations, SCC would be a better option.

 

My account at DPS still states awaiting LL response. I will update as this changes.

 

Thanks everyone for your advice. Much appreciated.

 

Claire

[The Carpet Cleaners]

you have to email the dps and tell them you are going down the court option

[email protected]

if you call them it costs loads per second, and I mean loads

once you have emailed them the account will be suspended and the only way to release funds then is by the judge directing them in the judgement (you have to ask for this)

[clairey]

Ok, thanks. So when is best to advise them? After a formal LBA? Does my email count as the LBA in this instance? I want to make sure that I follow correct procedure and give us both every chance to avoid court costs.

 

Thanks,

Claire

[Snorkerz]

Tell them AFTER you have commenced the claim. If you start it online at http://www.moneyclaim.gov.uk you can email them straight afterwards.

 

Your letter before action has to be sent to the address for the service of documents provided by the landlord. Email is no good because you can't prove if it was read, or more importantly, where it was read.

[clairey]

Hi,

 

Just to let you guys know, my LL sent me this email today:

 

Hi Claire

 

Your legal advisor should have told you about the DPS’s independent adjudicators; legal action is not necessary. If we fail to come to an agreement, I will lodge my intention to keep the deposit, and you can lodge your objection. After all the evidence of photos and statements is submitted, an independent adjudicator will be assigned to look at the case.

 

However, I am still hoping that we can reach an agreement ourselves, and we will not have to go through this process. In order to show that I am giving you every opportunity to settle this amicably, I am giving you one last chance to make an offer. If you do not take this opportunity, I will have no option but to get in touch with the DPS.

 

Yours sincerely

 

Will it reflect poorly on me to take the court option? I'm thinking about sending a reply such as:

 

Hi x

 

I am of course aware of the ADR process, however as I'm sure you know, neither of us are obliged to use the arbitration service. Having taken advice, I believe that this is a matter best dealt with in court where we can both attend and present to a judge. While it can be both expensive and time consuming to go to court, I am fully confident that I will be awarded the full deposit and costs, so I'm happy to take this route.

 

Of course, it would be my preference to avoid court altogether, however I do not believe I am responsible for the structural issues in your property and cannot find anything in the law, or tenancy agreement, that would support such a claim. Therefore, I am unable to make you an offer for something I am not liable for.

 

My previous email still stands and at the end of the 14 days I will begin court proceedings.

 

Best,

Claire

 

Advice, please. Thank you!

Claire x

[clairey]

Just to let you all know that I sent the email. Expect I will need to send LBA shortly.

 

Thanks!

claire

[clairey]

Hi, I received the following email from the LL today and would like someone to look over it if poss! LL is trying to intimidate me and it's working to some extent. Her confidence in this clause 11 thing is confusing.

 

The case is fairly cut and dried. The evidence shows clear and obvious marks of progressive deterioration on the wall of my property, which must have been developing over a period of months. Only after this would the black mould have grown. You failed to report to me the marks on the wall and even the mould until it grew back a second time. This is a clear breach of clause 11 of the contract as quoted in my email below.

 

It is unfortunate that you feel the ADR process will not give you the outcome you are hoping for. The courts take a dim view of people who take up the courts time unnecessarily, so I will be making it clear that I did all in my power to reach an amicable settlement, and I tried to initiate the ADR process.

 

If you still choose to pursue this in the courts, please ensure that the papers are addressed to me, care of this address

 

As I think I've mentioned previously in this thread, we did inform her as soon as we realised there was a problem, however when the mould appeared the first time it was wiped off due to me being asthmatic and it being an outside wall and having rained, we thought it could have been due to that. There was about a period of a week between the time it first appeared and we reported it.

 

Thanks,

Claire

Edit: Also, what kind of evidence could she possibly have? I think she has pictures from after I moved out, but they're not dated. The marks she's talking about weren't there when I lived there. There was absolutely no evidence of anything until the black mould.

Edited September 12, 2011 by clairey