No Inventory

[Will!]

I've just signed a contract on a new flat. It was advertised through a regular letting agent with a standard AST contract. When I signed I asked the LA about the inventory and management and he said this would all be done by the landlady herself. So far, so unremarkable.

I e-mail the landlady to check the arrangements for utilities and she phones me. I ask her about the inventory and she tells me that there is no inventory: she bought this flat in December in 'good condition' and she trusts me to keep it that way. I've never encountered this before and I'm worried she may be a new amateur BTL. I'm going to take date-stamped photos of anything in the flat that doesn't look in 'good condition' and e-mail them to her. The contract says my deposit is with TDS and I'll check that of course.

Is there anything else I should do to pre-empt problems with an amateur landlord?

Cheers

Will

[Mrs Bear]

If she's an amateur she might not be aware that she is obliged to register your deposit, or maybe just not bother. If she fails to do this you can claim a fair bit - twice the deposit? Someone here will know. I think she is obliged to send you proof that she has done it, within 30 days or something.

[StainlessSteelCat]

Take pictures of absolutely everything - especially any damage or stains! Get your deposit protected.

Check there is a gas safety certificate (if the place has gas) too.

Our last landlord turned into a complete **** when we left making it impossible to get our deposit back. The place was an utter state when we moved in (e.g. rotting takeaway dinners just thrown in the corners of a room - he claimed it had been deep cleaned beforehand) and he made deductions for dust and a newspaper under the sofa, claimed we'd left a stain on a bedroom carpet, reckoned we'd fly tipped by putting big bagged rubbish in the communal bin store etc. In the end we lost all but £12 of the deposit, and then he kept that because of the hassle we'd caused him by not reporting a damaged joist under the kitchen. No deposit scheme, so no redress. I should have pursued it really - but was just glad to put several counties and renting with that scumbag between us.

Prior to that he'd always been friendly, even helpful if a little slack in getting any repairs done. Assume your landlady will be a total git and take relevant precautions.

Edited January 21, 2015 by StainlessSteelCat

[Crash In The Attic]

Surely better *not* to insist the deposit is protected. If it isn't, then at the end of the tenancy you can, with quite little effort, get your deposit back in full (regardless of condition of the place) plus whatever the multiple is by way of punishment for her.

[Will!]

Thanks for the replies, especially the reminder about the gas safety certificate.

I once had a landlord who didn't protect the deposit and then tried to sting me for mould in the bathroom due to poor ventilation. I threw various sections of the Housing Act at him and he gave it all back, but if he'd refused then the hassle of suing him in small claims court could have been significant.

[Rozza]

No inventory = no claim for damages, the tds or a judge would look to an inventory signed by both parties as agreement as to condition on move in, without this you can pretty much say "it was like that when I moved in" to most things, obviously short of setting the place on fire

[65243]

No inventory = no claim for damages, the tds or a judge would look to an inventory signed by both parties as agreement as to condition on move in, without this you can pretty much say "it was like that when I moved in" to most things, obviously short of setting the place on fire

This is my understanding also. If the landlord wants to keep any of your deposit when you leave then the onus is on her to show that you have caused damage and therefore owe her. If she has no inventory then that will be virtually impossible. It is in your best interests to stay quiet about the lack of an inventory. An inventory exists to protect the landlord, not you.

[Bloo Loo]

In a dispute some years ago, my ex landlord produced a time stamped photo to prove the state of the lawn when we left.

Nobody noticed the time stamp, but there was a child in the photo...I asked who it was and he said it was his son ( this was in the hearing at the Magistrates by the way)...I asked how old his son was now and he mumbled something which the magistrate wanted to hear again. I was shown the photo to agree the state and for some reason flipped it over...there was indeed a time stamp...a year or two before we had even begun the tenancy.

[Damocles]

No inventory = no claim for damages, the tds or a judge would look to an inventory signed by both parties as agreement as to condition on move in, without this you can pretty much say "it was like that when I moved in" to most things, obviously short of setting the place on fire

Is it your experience that this is what happens in practice?

Strictly, the tenant's obligation is to leave the property in the state required by the tenancy agreement, though that obligation may be qualified in various ways.

[Rozza]

Is it your experience that this is what happens in practice?

Strictly, the tenant's obligation is to leave the property in the state required by the tenancy agreement, though that obligation may be qualified in various ways.

Erm, that isnt the tenants obligation in any way shape or form. As often the tenancy agreement states things like professionally cleaned which have already been proven to be an unfair contract term, and also the tenancy agreement may state a condition which would amount to betterment compared to move in state, also not allowed

The tenants obligation is to return the property in a similar state to that encountered during move in, accounting for fair wear and tear. However with an absence of an inventory the landlord will find it extremenly difficult to prove the state during move in, which is the key point.

As i pointed out (obviously tongue in cheek regarding setting the place on fire) so long as nothing extreme is damaged, I'm not saying this is always the case, there are always exceptions. however a statement from the TDS is below

Mike Morgan – Acting Head of Adjudications states: “The absence of an inventory is problematic and they are vital in enabling us to compare the condition of the property at the start and at the end of a tenancy. Without an inventory TDS are normally unable to make any award to the landlord.”

The easiest thing for everyone is to have an independant inventory agreed by both parties, but if a landlord wants to not bother with this, then thats the risk they take, there is a risk to the tenant of course (as in any agreement) but this will be extremely low compared to the risk the landlord takes

Also, see

http://www.rla.org.uk/landlord/tenancy_deposits/tds-Inventories.shtml

Specifically - "What happens when you don't have an Inventory?"

Edited January 26, 2015 by Rozza

[Will!]

As i pointed out (obviously tongue in cheek regarding setting the place on fire) so long as nothing extreme is damaged, I'm not saying this is always the case, there are always exceptions. however a statement from the TDS is below

Mike Morgan – Acting Head of Adjudications states: “The absence of an inventory is problematic and they are vital in enabling us to compare the condition of the property at the start and at the end of a tenancy. Without an inventory TDS are normally unable to make any award to the landlord.”

...

Also, see

http://www.rla.org.uk/landlord/tenancy_deposits/tds-Inventories.shtml

Specifically - "What happens when you don't have an Inventory?"

Thanks very much for this.

[Damocles]

Erm, that isnt the tenants obligation in any way shape or form.

Let's look at this.

As with many thing in the wonderful world of BTL the true legal position has been lost in a mist of confusion.

There are two issues here: the first is what a tenant's obligations are and the second is how the landlord goes about enforcing those obligations.

What are a tenant's obligations?

Where the tenancy agreement is silent the tenant's obligations are very limited. They do not extend beyond using the property in a tenant-like manner the meaning of which has been explained by Lord Denning:

"What does 'to use the premises in a tenant-like manner' mean? The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, when necessary and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do those little jobs about the place, which a reasonable tenant would do. In addition, he must, of course, not damage the house wilfully or negligently; and he must see that his family and guests do not damage it; and if they do, he must repair it. But apart from such things, if the house falls out of repair owing to fair wear and tear, lapse of time or for any reason not caused by him, then he will not be liable to repair it."

If there is a tenancy agreement the obligations are as set out in the agreement, subject to the following:

(i) The tenant cannot be made responsible for anything that statute imposes on a landlord - see for example section 11 L&T Act 1985.

(ii) The damages recoverable cannot exceed the diminution in the value of the landlord's reversion - see section 18 L&T Act 1927.

(iii) Under the general law of landlord and tenant repairing obligations are not interpreted absolutely, but according to the state of the property when the tenant took it, the use to which the tenant puts the property and location. Accordingly, the same words may have different effect in different cases. The overriding principle is that the landlord is not entitled to get back something substantially different to what the tenant took.

(iv) The Unfair Terms in Consumer Contracts Regulations. If there have been any cases on tenants' repairs under the Regulations they have not come to my attention. The now defunct OFT offered some guidance which is no more than that, though likely to be persuasive. Whilst obligations to have property professionally cleaned at the end of a tenancy may be unfair if the property is left in a lettable state, there cannot be any hard and fast rules about what is reasonable. It has to depend on factors such as the length of the tenancy. Subject to (ii) and (iii) above, any requirement which involves leaving the property in a better condition than at the start of the tenancy is not intrinsically unfair, particularly if there is a rent concession which takes the condition into account.

So, if a tenancy agreement says that the tenant must keep the property in good repair and decorative order then that is what the tenant must do irrespective of the condition of the property at the start of the tenancy, subject nevertheless (and very much so) to (i) to (iv) above. However, the parties can contract that the tenant's obligations are limited by reference to a schedule of condition. For establishing the extent of a tenant's obligations a schedule of condition is entirely for the tenant's benefit. It is a shield not a sword. Suppose (a) the agreement says that the tenant is responsible for internal repairs but is not liable to leave the property in any better condition than that recorded in a schedule of condition and (b ) the schedule says that the cellar door is half rotten. At the end of the tenancy the tenant can hand the property back with a half rotten door, but if the door becomes wholly rotten and falls off its hinges he has to replace it. For the tenant to be properly protected the agreement needs to exclude liability for repair of the cellar door altogether.

For the tenant to take the benefit of a schedule of condition it needs to be referred to in the agreement and the tenant's obligations set out with reference to it. In the absence of that it is, strictly, no more than evidence of the condition of the property at the time it was drawn up, though all the circumstances may point to its purpose being to limit the tenant's obligations.

Now it is one thing knowing what the tenant ought to do and quite another proving he has not done it. Just as in any case put before a tribunal where the facts are in dispute you have to prove them. That is where all the advice to landlords about schedules of condition come into it and, also, where the schedule can be of benefit to the landlord. The important thing though is not to confuse the law with procedural rules. However difficult it may be for landlords to get their pound of flesh, there is no rule of law which says that a tenant cannot be put under an obligation to return a property in a better condition than he took it.

Edited January 28, 2015 by Damocles

[Rozza]

Thats an amazing amount of words to fail to come up with an anywhere near correct answer frankly!

Taking your example of the door, If the door is half rotten and falls off, the tenant could quite easily argue this was bound to happen, there are very few people out there who would take the view the tenant has to replace the door. A new door would amount to betterment, therefore... not allowed (it really is that simple im afraid)

You have taken a quite simple matter, which even several landlords groups and the TDS agree on, namely that without an inventory the landlord will find it nigh on impossible (but as i stated above there is always a very slight change) of clamining damages unless anything extraordinary happens.

[Damocles]

The "half-rotten door" illustrates the principle involved. If the tenancy agreement says that the tenant is under no obligation to leave the property in any better condition than he took and a schedule of condition records a half-rotten door then he can hand the property back with the door half-rotten. However, he cannot hand the property back in a worse condition. Accordingly, if the condition of the door worsens he has a problem because he will have difficulty finding a "new" half-rotten door. The only way to ensure protection is to exclude the door from the repairing obligations altogether. The tenant cannot argue that the door would have rotted further anyway because otherwise a tenant could argue that he need not carry out any repairs at all because deterioration is inevitable

But all that is a bit of a side issue. What we have essentially is landlords bringing the problem on themselves because they have misunderstood the whole purpose of having a schedule of condition which is to protect the tenant and not the landlord. Once you have one then the onus shifts to the landlord to prove deterioration. With no schedule of condition the tenant must comply with the repairing obligations set out in the tenancy agreement which may (subject to the qualifications I set out above) involve handing back the property in a better condition than he took it. That is the position under landlord and tent law - and is of course why tenants ask for schedules of condition.

[jammin35]

The "half-rotten door" illustrates the principle involved. If the tenancy agreement says that the tenant is under no obligation to leave the property in any better condition than he took and a schedule of condition records a half-rotten door then he can hand the property back with the door half-rotten. However, he cannot hand the property back in a worse condition. Accordingly, if the condition of the door worsens he has a problem because he will have difficulty finding a "new" half-rotten door. The only way to ensure protection is to exclude the door from the repairing obligations altogether. The tenant cannot argue that the door would have rotted further anyway because otherwise a tenant could argue that he need not carry out any repairs at all because deterioration is inevitable

But all that is a bit of a side issue. What we have essentially is landlords bringing the problem on themselves because they have misunderstood the whole purpose of having a schedule of condition which is to protect the tenant and not the landlord. Once you have one then the onus shifts to the landlord to prove deterioration. With no schedule of condition the tenant must comply with the repairing obligations set out in the tenancy agreement which may (subject to the qualifications I set out above) involve handing back the property in a better condition than he took it. That is the position under landlord and tent law - and is of course why tenants ask for schedules of condition.

In the last place we rented, the Inventory had clearly been prepared by a professional inventory company who had been bribed by the landlady. Gleaming kitchen services were shown; the 2 inches of dust and pet hair behind the dishwasher, deep enough to cover pebbles (?) was not. The beautifully trimmed lawn was shown; the pile of overgrown brambles, that took me two car (Zafira) journeys to clear were not. The lounge floor was shown; the damp patch on the conservatory wall was not. When we met the landlady before we moved in, she seemed ditzy but nice enough. I was careful to get my own photographed and dated inventory done with date stamped images - fortuitously, since although the estate agent expected us both to individually initial a 65 page inventory, we were told that our own inventory would not be signed.

In the two years we lived there, we counted precisely 33 weeks that we could not use the ensuite in the master bedroom because of leaks. When the ceiling eventually collapsed, the extent of the leaks could be seen in the stained wood chip floorboards - stains which covered almost the whole ground floor when the boards were taken up. The twelve year old house had mildew growing around every window frame - we'd wipe it off, in a week it would be back. We'd seal and paint it, it would be back.

We moved out three weeks before the tenancy expired last March. When we did so, i turned the water off at the mains and turned the heating off too (it was late April and warm). The landlord entered the property the next day, found the heating off and turned it back on, damaging her aging boiler in the process. She then proceeded to accuse is, in a long series of emails, of being responsible for all the mildew in the house, of failing to report leaks, of failing to report the damp in the conservatory. The mildew was blamed on "the heating obviously being turned of over a cold winter", the damp in the conservatory down to "gutters not being cleared". She informed us that she would be withholding the deposit to cover this and to replace the landing carpet, which had been damaged by staining from the shower cubicle leaks and she also intended taking us to court to seek a "fine" for allowing her house to get into the condition it was in, which included failing to remove a coke can from the garden (i assume this was thrown over the wall by some miscreant because we certainly didn't leave it).

The estate agent was actually very sympathetic, probably because the woman concerned had decided to sell the house with another estate agent, but was demanding that the letting agent to do viewings! With her help, we managed to piece together a detailed chronology of all the occasions that we'd notified her of problems (fortunately for me, i always backed up with an email both to the agent and landlady) and her responses to them. We also provided the copies of the inventory that we'd done at the beginning of the tenancy (again, fortunately for me, when they wouldn't sign it, i simply emailed them a PDF with a read receipt). I very much enjoyed sending her a picture of the single coke can lying on the driveway, and the 4 foot high, 8 foot long pile of brambles, completely concealing it and preventing access to the garage. She finally accepted that she wasn't going to win, but to save face demanded that we remove what i think was an ironing board in black plastic from the eaves in the garage. By this point i'd totally lost it with her so i refused point blank. The estate agent went to remove it, and rang us, laughing, to say that she'd just delivered it to the landlady....the black wrapping, it turned out, had a name and address on it - the addressee being none other than our landlady.

So while i would agree that there might be a certain advantage in not having an inventory, in a situation like this it is much, much easier to have a very carefully documented set of photographs and copies of all correspondence.

Fortunately in seven years of renting since my divorce, in one 1 bed flat attached to the landlord's, a 2 bed flat owned by an absentee landlord, the 3 bed hovel above, and the 3 bed that i currently rent with my new wife, our experiences have been otherwise very positive.

[Bloo Loo]

you can disagree with the inventory that was submitted to you..mark your comments on it and return it, keeping a copy.

[Will!]

jammin35 - sounds horrendous. I guess with hindsight the selectively incomplete inventory was the first clue that something wasn't right.