Unlawful withholding of part rent deposit - relevant case law or Act ref please ** SUCCESSFUL CONCLUSION **

[KiwiMike]

Hi everyone, we have spent quite a lot of time carefully reading all the post we could find on similar cases here. We are new to the UK so not 100% up to speed on the Laws here and seek your help please!

Our former landlady who was a resident landlord (hence no protection under any TDS and thus it was not an Assured Shorthold Tenancy) is we fell unfairly/unlawfully withholding part of our tenancy deposit. Her reasons for doing so have also changed a few times too and dispute numerous attempts to resolves this we are now at the point of sending a Letter Before Action along with a draft copy of the N1 form which will include the following Statement of Particulars which will hopefully give you a good insight to what has been happening.

FYI, there was no check in or check out inventory done, nor are we aware of the stains which she claims were on this mattress. In fact we don't even think that the photos that she subsequently sent are of the same mattress that was in our room. (There are four other rented rooms in this house all which we think might need new beds too!)

Our question is are there any Acts or Case Studies we should be reference to in this statement of particulars or is it just all done under common law?

Plan to file this in the next few days so quick replies gratefully received

Mike

IN THE SOUTHEND COUNTY COURT

BETWEEN

XXXX, THE TENANT (CLAIMANT)

AND

XXXX, THE LANDLORD (DEFENDANT)

PARTICULARS OF THE CLAIM

 

1. I XXXX claim the sum of £150 plus interest, being the unlawfully withheld amount of the £250 security deposit which I paid in cash on 19th May 2012 under a tenancy agreement of premises at 24 XXX Leigh on Sea, SS9 XX.
   
2. The tenancy was created verbally by an agreement made on 19th May 2012 made between XXXX, 24 XXX, Leigh on Sea, SS9 XX, the landlord, and XXXX, 28 XXXX, XXXX, CB11 XX, the tenant. The periodic tenancy on a month by month basis was commenced on 19th May 2012, at a rent of £450 per calendar month, payable monthly.
   
3. The tenancy was amended verbally on or about the17th Nov 2012 when the landlord gave her permission for the tenant’s partner to also occupy the property. Additional compensation was offered by the tenant to address any additional cost but the offer was declined by the landlord and the monthly rent remained the same for a dual occupancy of the room.
   
4. The tenancy was terminated on 26th July 2013, by notice given by the landlord via text stating that she required the room for her family due to the pending birth of her grandchild and that the room would be required to be vacated not later than the 19th August 2013. The Landlord also offered the opportunity to vacate the room earlier than the required 4 weeks’ notice with a suggested departure of two weeks which fell on the date of 9th August. On confirmation that in addition to the security deposit refund, the portion of the unused monthly rent, that being for the period 9 August until 19 August 2013 would also be refunded which equated to the sum of £150 the landlords offer was accepted with a mutually agreed termination date of 9th August 2013.
   
5. On 31st July 2013 a further text was received by the landlord stating that she had a change of mind and would not be refunding the unused portion of the rent irrespective of an early departure. The landlord’s reasons for the termination of the tenancy at this point also changed as she now stated she needed the money due to the departure of another tenant.
   
6. The tenants had some concerns over the deteriorating nature of the relationship with the landlord and her behaviour and in light of this the tenants considered that their private property including specialised work equipment and clothing to be at risk, they vacated the room on the 1st August 2013 advising the landlord of the same.
   
7. One week later on the 8th August 2013 a refund of £250 was deposited into the tenant’s bank account by the landlord. This is shown on the tenant’s bank statement.
   
8. On 9th August 2013 the tenant advised the landlord that the security deposit had been received in her bank account however the balance of the unused rent for the period 9th August to 19th August 2013, namely £150 was still owed.
   
9. On 12th August 2013 the landlord advised that her position had changed again and that now she was withholding £150 against the security deposit claiming alleged stain damage to the mattress supplied in the room. This was queried by the tenant.
   
10. On 19th August 2013 the landlord sent via mail, two digital photographs dated 9th August 2013 showing an image of a portion of a mattress with some staining.
    
11. The tenant advised the landlord on 27th August 2013 that they have no knowledge of the stain shown in the photographs and has never seen them before and thus accepts no liability. The tenant questioned in any case the landlord’s position that the mattress was no longer operational or functional thus requiring replacement. Furthermore the tenant believes that given the considerable age of the mattress supplied in the room, the apportionment calculation proposed by the landlord which equalled the disputed £150 was in any case excessive and that the landlord was seeking unlawfully to use the tenancy deposit to effectively discount the purchase of a new item of furniture for the landlord’s betterment.
    
12. The tenant has been chasing repayment of the full £150 from the landlord but without success.
    
13. The tenant has sent a letter before claim to the landlord on XXth September 2013.
    

AND the claimant claims:

 

1. The outstanding tenancy security deposit being the sum of £150.
   
2. Interest pursuant to section 69 of the County Court Act 1984 at an annual rate of 8%.
   
3. Costs.
   

[citizenB]

I have asked someone to look in - hopefully they will be able to do so, soon.

 

Have you spoken to Shelter ? They might be able to offer some advice

 

http://england.shelter.org.uk/get_advice

 

Free advice helpline

 

0808 800 4444

 

 

8am-8pm Monday-Friday

8am-5pm Saturday-Sunday

[mariner51]

Whilst I hesitate to criticise a respected member of the site team with multiple friends, CitizenB posts to this Forum consist mainly of a standard reply to contact Shelter without considering a response to OP problem. The inference being that CitizenB is more concerned with increasing their post count to beyond 50K in last month.

Shelter is a valuable Charity resource for advice, available to all-comers, of which OPs may need a reminder of contact details for further advice.

CitizenB may be a Shelter volunteer advisor, in which case they could offer rel lay advice to OP on this forum in addition to Shelter contact details

Edited September 17, 2013 by mariner51

[citizenB]

It is not my usual way to respond to unwarranted criticism in a public manner. However, in this instance I will.

 

Mariner, I am shocked at your accusation. I am neither a Shelter advisor nor did I have any desire to rush to 50,000 posts.

 

I am also saddened that you would use a public thread to level this accusation and would offer an opinion that you did so deliberately as you have not actually offered any advice for kiwimike !!

 

When there is a cry for "Urgent" response and I see that there is no relevant cagger available, I will advise the OP to contact Shelter who are able to help and in a timely manner.

 

If you believe that I have behaved inappropriately, then please feel free to contact a Senior Administrator for a full review of my posting habits. All caggers who are affiliated with companies or charity agencies are obliged to report that affiliation to CAG Admin - that includes Site Team members.

 

I have no knowledge in this area and previous attempts to chase down help for newbies by way of S.O.S to caggers who DO have the experience, have been met with silence - whilst a thread has gone without response.

 

I am sure that as an equally respected member of CAG, you will offer me an apology in the same way you offered your criticism.

[KiwiMike]

Hi CitizenB, thanks for your offer of Help. With regards to Shelter yes we have spoken to them and they have been very helpful thus far around the process and what steps to take and when etc but in regards to the finer Legal points about our specific claim and if there was any relative case law it was a bit beyond what they could help with hence the posting here to seek assistance from any legal eagles out there.

 

Any ideas from readers??

[citizenB]

Righto, I have left an S.O.S for those with more legal knowledge - hopefully they will look in ASAP

[Lea_HTH]

You don't need case law for such a basic claim.

 

I have no idea why people always want to make things complicated for themselves. Your PoC is over-inflated and contains extraneous information that the court will have zero interest in.

 

It is simple - you are claiming £150 which your LL has kept for alleged damage to an item. That is pretty much all you need to say in your particulars, and then it is for the LL to enter her defence and you, if necessary, respond to that.

 

The small claims court decides on the facts: was a deposit paid, was it returned, why was it not returned - and then decides on the evidence before it, on the balance of probabilities, who is telling the truth and makes a judgment.

 

I can't imagine that the time and effort it's going to take to take this to court is worth £150.

[KiwiMike]

Dear Lea_HTH Thank you for your advice on the reliance on common law only. The verbose nature of the POC is more for the benefit of the Landlady who will hopefully see that the case does not read well for her and that that it would be in her best interest to settle. Trust this makes sense. If she won’t then yes we will seek the assistance of the courts if for nothing else than the principle and because we can.

[raydetinu]

If OP has any knowledge of the actual age of the mattress which is referred to in point 11 then they should state what age they know or think it is; then take the expected original cost and then apply a wear and tear reduction based over 10years ( i.e. 10% for one year to 90%for 9 years etc.). LL cant claim full new cost replacement anyway.

can LL prove the stains were not there at start of tenancy?

[citizenB]

I see others have popped in and Leah has advised pretty much what I have been on your behalf

 

 

PoC is sufficient but too long for MCOL....short synopsis required for the claim and then the particularised served separately

 

If it his intention to serve it through S on S CC he can't it will have to go through Salford.

 

Case law should not be quoted in the particulars and there are no acts applicable as the LL is not TDS.

[KiwiMike]

Thanks for this feedback Citizen8, we will have a look at editing the POC.

 

An additional question for the readers, As eluded to in the current POC, the landlord behavior became quite unacceptable to the point not only ourselves but one of the other tenants also departed early. (forced evection?)

 

In our case, we left on the 1st Aug rather than the 9th Aug which was the original written agreement (which she later went back on after we had made other arrangements) and because we became concerned about her behavior (harassment??) and as such we felt we had no choice but to leave even earlier than planned.

 

Could we sue for cost for a Breach of 'covenant for quiet enjoyment' and/or perhaps a either;

 

Breach of section 3 of the Protection from Eviction Act 1977: a landlord must obtain a court order to evict all tenants and licensees (apart from excluded occupiers) under section 3 of the Protection from Eviction Act 1977 and/or

 

a Breach of section 27 of the Housing Act 1988 : this makes unlawful eviction or harassment that leads to eviction a civil offence. It can be used by any residential occupier

 

If yes to any of the above what value of claim should be sort and would this be procedurally permitted under the N1 track??

 

Any suggestions from readers??

Edited September 17, 2013 by KiwiMike

[raydetinu]

You will have restricted rights if as you say the LL lives on the premises and even less if you share any facilities;

see; http://england.shelter.org.uk/get_advice/renting_and_leasehold/private_tenancies/checking_the_tenancy_type#your_landlord_lives_on_the_premises

 

Having said above anybody can bring an action for anything; and let a judge decide?

 

However confused at reading your POC again as you say the £250 deposit was returned and it is a portion of the rent that she is in fact holding due to you leaving early.

have you got any of the discussions and agreement, saying you could leave early and she will repay the rent for the rest of the period, in writing?

or you relying on a purely verbal agreement, which could be hard to prove. I also think she may well have the right to change her mind IMHO.

Also have you any evidence of the harassment you claim.

 

If you occupied only one room, then you would be Lodgers with very limited rights as you occupying somebodies house/living area and it is their rules; if you don't like it leave.

Edited September 17, 2013 by raydetinu

[KiwiMike]

Hello raydetinu and thanks for your reply.

We have written confirmation of acceptance of early surrender date of the 9th August and agreement that the unused rent of £150 would be paid along with the security deposit of £250 (Total owing to us £350)

 

Then four days later she says she changed her mind and was not going to pay the £150 for the unused rent.

 

We became very worries about her state of mind and vacated the room earlier on the 1 Aug because of this.

 

On the 8 Aug we then received £250 into our bank account which was the security deposit and queried the next day with her the unused rent portion of £150 for the period 9 Aug to 19 Aug which had not been refunded.

 

She then changed her mind again and stated that the £250 paid was made up of £150 for unused rent and £100 for security deposit as she was now withholding £150 for damage to a mattress.

 

We think the case for the refund of the £150 should be straight forward given all the written correspondence with have with her and the lack of a check in check out inventory. Our question is with regards to a early departure which is paramount to forced eviction as we felt our personal property to be at risk, could/should we also seek damages in this area??

 

Edited September 18, 2013 by KiwiMike

[KiwiMike]

Hi Again everyone- I think I have an answer and that is under the civil procedure rules 26.7(4) state that The court will not allocate a claim to the small claims track, if it includes a claim by a tenant of residential premises against his landlord for a remedy in respect of harassment or unlawful eviction. So not possible to pursue this via the N1 process

 

Asked and Answered! Thanks again for everyone help over the last few days

 

Mike

[KiwiMike]

Hello Everyone

 

Just an update on progress. I am please to advise that after we sent the following letter before action, along with the earlier particulars of claims (see start of this thread) and a draft completed N1 form with the claim details the Landlord paid up in full!

 

I hope the following is helpful for others in our situation. Best of Luck to you all Mike

 

Dear xxx

LETTER BEFORE ACTION

As it has not been possible to resolve this matter amicably, and it is apparent that court action may be necessary, I write in compliance with the Practice Direction on Pre-Action Conduct.

Further to my letter dated 27th August 2013 please find enclosed a copy of court form N1 and Particulars of Claim. This relates to my repeated requests that you return the full balance of my deposit that you are unfairly and unlawfully withholding that I paid for the accommodation at xxx Avenue, Leigh on Sea, SS9 xx.

This form will be submitted to the county court at Southend on Sea fourteen days from the date of this letter unless I receive a cheque or bank transfer into my account for £150 before then.

Listed below are the documents and correspondents on which I intend to rely in my claim against you:

 

• Text correspondence dated 26th July 2013- Landlord notice to quit and offer of early surrender
  
• Text correspondence dated 30th July 2013 -Tenants request for confirmation of terms, refund of security deposit and refund of unused rent.
  
• Text correspondence dated 30th July 2013 -Landlords acceptance of terms of early surrender.
  
• Text correspondence dated 31st July 2013 -Landlords notice that she wishes to break contact for early surrender.
  
• Text correspondence dated 1st August 2013 -Tenant rejects notice to break contract for early surrender.
  
• Text correspondence dated 1st August 2013 -Landlord sent hostile and harassing text message to tenant resulting in a further deterioration of the nature of relationship.
  
• Text correspondence dated 1st August 2013 -Landlord sent hostile and harassing text message to tenant resulting in a further deterioration of the nature of relationship.
  
• Text correspondence dated 1st August 2013 –Tenant expresses concern at Landlords hostile position.
  
• Text Correspondence dated 9th August 2013 –Tenant advises Landlord of receipt of security deposit of £250 and seeks payment of outstanding amount of £150 for unused rent.
  
• Text Correspondence dated 12th August 2013- Landlord advises her position has changed and now she withholding funds against the security deposit for damage to the mattress supplied in the room.
  
• Letter dated 13th August 2013- Tenant advises that they have no knowledge of a damaged mattress and challenges Landlords reasons for and timing of withholding £150 security deposit to same value as unused monthly rent.
  
• Letter dated 19th August 2013 - Landlord seeks to justify withholding of security deposit and provide two photographs.
  
• 2x Photographs provided by Landlord in her letter dated 19th August 2013.
  
• Letter dated 28th August 2013- Tenant reconfirms with Landlord that they no knowledge of the alleged stain damage, accept no liability, and again question the Landlords justification for costs.
  
• Letter incorrectly dated 7th August 2013 but received on the 12th September 2013 from the Landlord claiming that the mattress was in good condition at the commencement of the tenancy and seeking to justify non betterment.
  
• XXXX Bank Statement for the Month of August 2013
  

In accordance with the Practice Direction on Pre-Action Conduct I would request that you provide me with copies of the following documents:

 

• An itemised copy of your mobile phone account showing date and time of text transactions between your cell phone numbers 078XXXXXXXX and 07 XXXXXXXX for the period July and August 2013 inclusive.
  

I can confirm that I would be agreeable to mediation and would consider any other system of Alternative Dispute Resolution (ADR) in order to avoid the need for this matter to be resolved by the courts.

I would invite you to put forward any proposals in this regard.

In closing, I would draw your attention to section II (4) of the Practice Direction which gives the courts the power to impose sanctions on the parties if they fail to comply with the direction including failing to respond to this letter before claim.

I look forward to hearing from you within the next 14 days.

Should I not receive either payment of £150 or a response to my letter within this time frame, then I anticipate that court action will be commenced with no further reference to you.

Yours sincerely,

[citizenB]

This is excellent news - well done for persevering. I will amend your thread title to reflect the successful conclusion.

[raydetinu]

Well it worked, well done.