Bond Deposit not returned and negotiations proved fruitless.. - ** WON **

[pursueingjustice]

Hi all, I've been reading about for a few weeks now as I try and figure out where I stand and how to proceed. This site has been a great help so far so thanks!

 

Anyway down to the facts;

 

Moved into a flat with an AST of 6 months September (2010). Done an inventory (on my own) and signed it and ammended it as I saw fit and returned it to my landlord, all very well. Paid my £550 deposit and £550 first months rent a few days before I moved in. Standard job.

 

Signed an additional 5 month extension after having been in the flat for 7 months as the landlord never bothered to contact me regarding a new agreement (Had gone on to monthly rolling and I signed to keep the peace, didnt want things to get awkward). Did a new inventory on the flat, and a new contract agreement. I have copies of mine AND his, as he never bothered to collect them from me.

 

Left the property after he said I needed to give him 2 months notice on October the 30th of this year meaning the 5 month second contract had been dragged to 6 months anyway as he made me stay an extra month. Not sure if this was legal.

 

Oh and I forgot to mention he never protected the deposit in a deposit scheme..

 

Anyway now he claims (after an email I sent to him on Novemeber 16th) that I'm getting zero of my deposit back, for about a million different reasons;

 

1) First off he claimed it was not a security bond/deposit because it was a months rent in advance and therefore he did not have to protect it, although he calls it a bond in several emails I still have and he is witholding the money to pay for "repairs" so thats b/s right?

 

2) LL claims damages to his designer sofas (:/) mean that he has to send them back to Italy to get fabric replaced at a cost of £2,000 at least. On top of that apparantly I left the flat in a disgraceful condition.

 

Bear in mind I have in an email the result of a "pre-inspection" of the flat, in which LL issues me with some things he wants doing before I move out including hiring a cleaning company to clean the sofa (and oven which is pathetic but nevermind..). How can this change to needing to send it off to Italy? And he states "The place was in a reasonable conditon" and "the flat was in great condition - thanks for looking after it".

 

LL claims photographic evidence will be enough to support his argument, however I think I would have had to sign these with him? Plus he didnt do a final inventory with me he did it himself. As far as I am aware after reading up on it, I should have been present for this. (Actually he requested a date for this and I responded by saying I was travelling away for a week and he did it without me then..)

 

Basically we have emailed a few times and he will not be drawn on repayment at all, constantly citing the sofa's damage for keeping the money, and the fact it was "not a deposit" as the reason he did not protect the money.

 

I have informed him of my willingness to take him to court over the non-compliance of the Housing Act 2004 to protect my bond and yet he still argues it wasn't a bond.

 

I am aware of form N1 for claiming back my money and form N208 for claiming the 3x bond amount for non compliance,. I've read the N208 is less successful than N1, but to be honest I only want my £550 back as it is a lot of money for anybody to lose/have stolen from them from, for want of a better word, a grimey sleaze bag!

 

Would love some feedback on whether or not I stand a chance and what to do next!

 

Thank you all in advance.

 

PJ

[rebel11]

Hi pur

 

Heres some info:- http://england.shelter.org.uk/get_advice/paying_for_a_home/tenancy_deposits

http://www.adviceguide.org.uk/index/h_tenancy_deposits.pdf

[The Carpet Cleaners]

You should kindly point out to LL that if it was 2 months rent in advance then by law you should have paid £1100 every 2 months, however I will bet that you paid £1100 to move in and then the next rent was 1 month after that etc, if that was in the tenancy agreement, then it was a deposit. However having said that you will be whistling into the wind to get 3x back.

 

Did you take photo's as you moved out?

was the sofa damaged?

[pursueingjustice]

That is true ! I have pointed out that if it was advance rent then he owes me it and has no right to it as i paid each month of the tennancy..

 

No photos as I moved out, I'm afraid I didnt have a clue about any of these laws until recently. I dont mind 3x back, that is irrelevant to me really.

 

The sofa had some mild stains, enough to be effecftively removed by a cleaning company, and I agreed to this initially.. Its a 5 year old sofa so some stains and frayed fabrics are to be expected I imagine. Im still willing to pay for cleaning of the sofa as I feel responsible for its damage but I want the rest of my money back, but I am unsure as to whether or not I'd be wasting my time as some of the cases I've read about leave me feeling nervous.

[raydetinu]

Did you in fact pay the last months rent? which if it was as he said you did not have to as you paid it up front.

If no inventory/condition was agreed and signed at the start of the second tenancy agreement then he does not have a leg to stand on IMO.

So if he owes you money take him o court.

[pursueingjustice]

Yea paid last month of rent, as the agreement of it being "One months rent in advance" was alien to me. I think court is the next step, I'm just looking for clarification really of what to do next?

[danielr]

Do you have an inventory/schedule of condition from when you moved in?

[pursueingjustice]

Do you have an inventory/schedule of condition from when you moved in?

Sorry for the late reply busy Xmas schedule!

 

Yea I have a tenancy agreement and a inventory.

 

Now I feel I need to point out that my tenancy started in Sept. 2010. I have no tenancy agreement from then; lost in the move :/. However I have a copy of the tenancy agreement from April 2011, which to me is the more important tenancy agreement as it rendered the first one useless no?

 

I also have his copy of the inventory like I said, he didn't collect it from me.

 

I need to know from you lovely people if I can sue for my deposit returned due to non-compliance, and if I will be likely successful due to everything I posted in my original post.

 

Thanks very much for taking the time to help! Going to issue the claim by the end of this week if you can all help me out!

 

PJ

[raydetinu]

If you believe he owes you money then take him to court.

you must first write to him claiming your deposit back and give him 7 days to respond and if money not forthcoming you will start court action.

This is court protocol; letter before action.

[pierceandco]

If the rent up front was not a deposit I do not know what is. Whatever label he puts on it it is still a deposit. Why else would he take a deposit (Sorry rent up front?)

 

He could say the rent advance was in case of non payment or for damage so it is a deposit. Get the picture? It is quite a straight forward case. He has not protected your deposit therefore he is at risk of being fined 3 x the rent. The law is the law and his attempt to circumvent it in this way will only serve to enhance your case to get your money back.

 

Each and every case is judged on its own merit but you are in a strong position, but given he has not even bothered to witness and sign the inventory he is in a weak position. The money handed over is considered as your money until the end of the tenancy and any damages are then claimed via the ADR service (in the DPS case).

 

Check this article from a good friend of mine who is also well respected in the industry. She also lectures on landlord/tenant matters. Look for Mary Latham's comment

 

Mark is right any money taken to cover a landlord

- Search for that text

 

I can't post any links as my post count is not high enough! So go to property118 dot com. Under "property news" menu item click the guest columnists. Select Mary LATHAM and look for the article "The devil is in the detail"

 

If you are in any doubt whatsoever seek legal advice -

 

Regards

[danielr]

therefore he is at risk of being fined 3 x the rent.

Except he's not at all at risk of that any more.

 

your tenancy started in September 2010 and the inventory from this time is the one that matters, the second inventory is pretty pointless.

indeed how could a decent inventory have been performed during a time that you were living there? (how can they see the condition of the furniture (say wardrobe) when it's full of your clothes, etc)

 

If you were to take the guy to court, it's not tremendously likely that you're going to get all your deposit back, after all, you say that there is an original inventory, and that there is damage beyond reasonable wear and tear, (stains from spills etc).

 

what you might do is get some of it back.

it's not reasonable for him to say that he's had to send a sofa back to Italy to be re-upholstered in fabric, because that has improved the sofa, from when you moved in, (unless the sofa was new when you moved in). -the landlord has a right to expect that the furniture that he leaves in the house would be looked after, and returned in a similar condition, the only differences being what would be reasonable due to normal wear and tear.

 

who did the original inventory?

do you have any photos of your own from when you moved in or when you moved out?

[pursueingjustice]

who did the original inventory?

do you have any photos of your own from when you moved in or when you moved out?

I did myself, and had to note on there things that hadn't been updated since the last tennants moved out such as vases no longer in the property and a washer dryer that was only a washing machine. Anyway... I have no photos of my own and like I said I don't have my original paperwork, if anything this whole thing has taught me to be more organised!

 

Does the fact I had a throw over the sofa to protect it help my case at all? I mean I want the bond back as a result of non compliance primarily, the fact he's being unreasonable with his uses of my money is just evidence against him.

 

Im in the process of filing for this online at the minute using MCOL, and I'm now wondering whether or not I should only claim for £475, as I am willing to pay the £75 for a sofa cleaning company to clean the sofa; as he said was ok originally.

 

Thanks again for the feedback people.

 

PJ

[pursueingjustice]

Also, I just realised, on the contract my LL and his wife are named under the Landlord(s) name. However under the section requiring a signiture, only male name is signed, his wife has signed it as the witness..

 

Isn't this a bit naff considering shes one of the "landlords" but acting as a witness?

[danielr]

That original inventory is going to be vital to your landlord to show the condition of the property when you moved in. if he can't show the state of the property when he moved in, then he can't really have a claim to keep any of the money. (without an idea of the state of the place when you moved in, how can he prove that you damaged it).

 

I guess that the landlord gave you a typed copy and you amended that copy with hand written notes and gave it back to him.

did you keep a copy for yourself?

(you want a copy because what if he produces only the un-amended copy?)

 

The emails you have from him saying that the flats in a good condition you need to keep safe. -it'll show how he's changing his story later.

the fact that he did the inventory without you doesn't matter, you should have made sure you were available, he obviously wants to turn around the flat as quick as possible, and that doesn't account for your holidays or business trips or whatever. you don't have to be there, there is no requirement for you to be there.

 

as for how much you should claim when taking him to court.

 

the 3x penalty is pointless trying to claim for, you just won't get it, nobody gets it any more, certainly not after they've moved out.

 

if you think that it's reasonable that he had cleaners come in, and you knew that was £75, then claim for the deposit less £75

if you know that the oven needed cleaning too take that off of the deposit too...

 

Be fair.

 

A court won't be impressed by him trying to keep it all, but they similarly aren't likely to be impressed with you saying "yeah, I caused damages but because he's bad I don't want to live up to my responsibilities."

 

 

no, you saying that there was a throw over the sofa won't help.

you can't prove it, it wouldn't stop the sofa getting stained, and you already agreed with his email to spend £75 getting a cleaning company in. if you thought that the stains didn't exist you should have fought that at the time.

 

If I were you I'd go with claiming £400, it shows a willingness to be fair.

 

on the other hand you could be greedy and go for the whole lot, unless he can show that there were dilapidations above and beyond normal wear and tear he'd have a job convincing anyone that you owed anything.

[pursueingjustice]

If I were you I'd go with claiming £400, it shows a willingness to be fair.

Yea, I have quotes from companies for cleaning the sofa and cleaning the oven amounting to £125, so I might well claim £425. That way I only have to pay £35 fee too

 

My only problem now is whether to complete forms with just LL or LL and wife as this is what is on contract in parts. Hmm

[The Carpet Cleaners]

forget the signatures and witness signature...... AST can be verbal anyhow

 

sue the names who are LL on the AST, if both then sue both, that way you will get the right one.

[The Carpet Cleaners]

Oh yes forget willingness to be fair.

LL has to prove that you abused his property, if you admit anything then the cost can just keep rising, make LL prove the lot.

[mariner51]

Ts quotes for cleaning are not rel. LL can appoint whom he likes or not even undertake the work. LL is claiming for damage and will have to provide evidence claim is reasonable. Adjudicator will decide

[danielr]

Adjudicator will decide

That's what I was alluding to earlier, the trouble is that you (OP) already sent emails agreeing to a deduction of £75 agreeing that the damage was done.

 

if/when the landlord brings this proof that you agree that damage has been done, what do you think this will do to your claim for all the money back? what light will you be seen in if you've agreed that you damaged the place/furniture/fittings, yet a little later you're saying that you want all the deposit back?

what I'm saying is that the magistrates are just normal people, it's their opinion, and what they believe that they see that is important. I think that this would make me think that you were trying to be a bit dishonest.

 

I don't see a reason that you couldn't write £400 on the claim, and if the judge in your small claims case decided that there is no evidence that the landlord should get to keep any money at all, why they shouldn't award you the full £475, even though this is more than you originally asked for. -Seek some real advice on this though, perhaps go to citizens advice, or phone the court and talk to them.

 

Also, don't forget to ask for costs, (if you do win) it's not cheap going to court, and you shouldn't be out of pocket for that either.

 

I don't think that quotes are irrelevant though, the landlord would have a duty to mitigate costs for the tenant, (it's not his money he's spending) -that doesn't mean using the absolutely cheapest.

it does mean that if there was some hoovering to be done the landlord couldn't employ a family member, and claim to have paid them £2000, he also would be on a hiding to nothing even if he produced a receipt for £2000 of cleaning work for (just) the hoovering of carpets. (in a normal sized flat)

 

Without receipts and without doing any work I think that they'd be on a bit of a sticky wicket also, especially if the tenant was contesting the check out assessment.

 

the situation I'm thinking is:

inventory says, additional cleaning required.

tenant says that no cleaning is required.

Landlord agrees that no cleaning is required, but charges anyway.

 

In that case cleaning isn't required, and it's empirically obvious that the landlord agrees that no cleaning was required (because they never had cleaning done) and would be trying to keep the deposit as a windfall, which is exactly what the tenancy deposit schemes are meant to stop.

 

But, there are other situations where it's valid for the landlord to keep money without work being done, where damage has been done, in this case the charge isn't for the direct replacement, but a contribution towards the cost of renewal based on the normal lifetime of an item and how much you have shortened it.

[LaughingGirl]

I don't think that quotes are irrelevant though, the landlord would have a duty to mitigate costs for the tenant, (it's not his money he's spending) -that doesn't mean using the absolutely cheapest.

 

I agree, but I find the concept of sending sofas back to Italy for re-upholstering suspicious. Assuming that the sofas were so badly damaged that they did in fact need to be reupholstered in the first place, sending them to Italy to do so seems highly excessive. Combined with claims that the deposit wasn't a deposit to start off with, and emails to the tenant stating that the flat was in good condition, I don't think a judge would be particularly sympathetic to his cause. I can't imagine much sympathy towards the fact he failed to protect the deposit either. To be quite honest, I find the whole thing very suspect.

[danielr]

it depends doesn't it.

what if the original fabric was Italian? what if the fabric was end of line, and the only remaining fabric in the world were in Italy? what if the fabric used was actually second hand or end of line? -so it's not like the landlord even has a new sofa out of this, -that'd avoid claims of betterment also.

 

You're right, IF I were adjudicating this, I wouldn't look favourably upon the landlord... it seems very open/shut... that's not to say it is though.

and that's why I've suggested making sure that anything you do is whiter than white, make sure that there isn't anything for anyone to grab hold of... any adjudicator shouldn't be at all bothered about the kind of person that you are or character types, likewise they shouldn't be bothered about the kind of person that the landlord is either. they should be only interested in the black and white. did you cause damage, and what's a fair amount to compensate for that damage. going to court and saying, "he's a bit of a dodgy geezer who tried to keep all the money, so now I don't deserve to have to pay anything/should get everything back" won't be a good argument at all.

[pursueingjustice]

Hi guys, just wondering; does the fact that the landlord never protected the bond in a TDS itself mean that I can claim back the deposit? Just wondering how best to present this as this is the main reason I'm taking him to court. The fact that he's asking for ludacrous damages is just his way of deflecting the fact that it WAS a bond and therefore SHOULD have been protected.Whats my position?

Edited January 6, 2012 by pursueingjustice

[pursueingjustice]

Sorry to spam this just don't want it I drop off the

Page as I need some advice still.

[mariner51]

Yes, you can claim for return of full deposit by virtue of not proetcted IMO. LL will prob countersue for full 'damages'

[pursueingjustice]

Yes, you can claim for return of full deposit by virtue of not proetcted IMO. LL will prob countersue for full 'damages'

 

Yea I guess so he has threatened that, still think il get away with most of my money back the sofa is taking the mick big time.

 

Thanks mariner, any other feedback is greatly welcomed.