Moving Out - Deposit Issue

[Bovril]

Hi all,

As always expected we are having deposit issues now we have come to the end of our tennancy. The LL sent us an email at the end of last week saying that we could have our deposit back in full apart from £50 to pay his cleaner to give it a onceover (which is quite annoying as we spent two full days scrubbing the place spotless, we wouldnt have bothered if we knew he was planning on making a deduction anyway). We agreed for an easy life and he said he would send the cheque out once he had taken the money out of his savings account.

Arrive into work this morning (another tennant has moved in over the weekend) and he wants another £100 out of the deposit for a replacement freezer drawer. The draw he wants replaced never existed, it was a drop down interior door, that was cracked when we moved in (the freezer was 4 years old then) and gave up the ghost halfway through our 5 year tennancy, it doesnt impact in anyway the functionality of the freezer. We considered it wear and tear, the freezer still works, and is now near on 9 years old anyway, so we didnt bother him with it at the time, it seemed like a non issue, I guess that was silly.

How should we deal with this now? Is he being unreasonable? We dont really want to give him the extra £100 out of our deposit, we could do with the cash and feel that he is trying it on, especially now he has new tennants in the property and had agreed on returning our deposit 4 days before. We know the deposit isnt protected as he has already mentioned that it is in his savings. We moved in before the deposit schemes came into place, but he has made us sign a fresh yearly agreement every year, so I guess he should have had it protected once the law came into place after we signed the agreement that year? As it stands we would rather not go down that route, it is nearly Xmas and we have just bought a renovation project that we have our hands full with.

Any advice gratefully recieved..

[You Ain't Seen Nothing Yet]

Why not kindly and politely point out to them what you mention in the email, and that given fair wear and tear, £100 seems excessive. If they're not prepared to see reason or compromise, then you can commence with a plan B.

[Dr Elk]

Hi all,

As always expected we are having deposit issues now we have come to the end of our tennancy. The LL sent us an email at the end of last week saying that we could have our deposit back in full apart from £50 to pay his cleaner to give it a onceover (which is quite annoying as we spent two full days scrubbing the place spotless, we wouldnt have bothered if we knew he was planning on making a deduction anyway). We agreed for an easy life and he said he would send the cheque out once he had taken the money out of his savings account.

Arrive into work this morning (another tennant has moved in over the weekend) and he wants another £100 out of the deposit for a replacement freezer drawer. The draw he wants replaced never existed, it was a drop down interior door, that was cracked when we moved in (the freezer was 4 years old then) and gave up the ghost halfway through our 5 year tennancy, it doesnt impact in anyway the functionality of the freezer. We considered it wear and tear, the freezer still works, and is now near on 9 years old anyway, so we didnt bother him with it at the time, it seemed like a non issue, I guess that was silly.

How should we deal with this now? Is he being unreasonable? We dont really want to give him the extra £100 out of our deposit, we could do with the cash and feel that he is trying it on, especially now he has new tennants in the property and had agreed on returning our deposit 4 days before. We know the deposit isnt protected as he has already mentioned that it is in his savings. We moved in before the deposit schemes came into place, but he has made us sign a fresh yearly agreement every year, so I guess he should have had it protected once the law came into place after we signed the agreement that year? As it stands we would rather not go down that route, it is nearly Xmas and we have just bought a renovation project that we have our hands full with.

Any advice gratefully recieved..

Contest absolutely everything with the TDS. You have nothing to lose.

[gilf]

Contest absolutely everything with the TDS. You have nothing to lose.

He already said his deposit is not in the scheme.

Just send a letter to your Landlord along the lines of

Dear Landlord

With regard to the £100 freezer draw, we feel this would be covered under normal wear and tear. We therefore would like to refer this matter to the TDS scheme which you have no doubt put our deposit in as per the law.

We cannot find any record of which TDS scheme you placed the deposit in but, we are sure you would have done so as failure to do so would result in a fine of 3.5 x the original deposit. If you do not wish to involve the TDS then please return the deposit in full when you are able to.

Regards

Tennants

[Pauly_Boy]

He already said his deposit is not in the scheme.

Just send a letter to your Landlord along the lines of

Dear Landlord

With regard to the £100 freezer draw, we feel this would be covered under normal wear and tear. We therefore would like to refer this matter to the TDS scheme which you have no doubt put our deposit in as per the law.

We cannot find any record of which TDS scheme you placed the deposit in but, we are sure you would have done so as failure to do so would result in a fine of 3.5 x the original deposit. If you do not wish to involve the TDS then please return the deposit in full when you are able to.

Regards

Tennants

+1

In fact, if you've stayed there for 5 years then should he even be taking £50 for cleaning? That's his job!

[Bovril]

Thanks all.. We were expecting it from this landlord, he isnt the most reasonable of men (in fact the initial email from him saying we were getting the whole deposit back minus £50 cleaning surprised us as we always expected him to try and pocket some of it). It is very annoying as we have treated the property extremely well during our 5 year tennancy, went above and beyond in cleaning it, have never once been late with rent etc etc, and left it in spotless condition, practically as we found it with very, very minor wear and tear that I would consider to be under what would usually be expected of a tennancy of our length..

Anyway, we have sent a polite reply back, telling him that there was never a freezer draw, only a pull down door that has come away (quite normally I think for an appliance of its age), and that we would appreciate our deposit back, as per his email of 4 days ago. Will have to see where it goes from there. If he still gives us aggravation, we will send out the email gilf suggested.

Many thanks.

[Dr Elk]

Thanks all.. We were expecting it from this landlord, he isnt the most reasonable of men (in fact the initial email from him saying we were getting the whole deposit back minus £50 cleaning surprised us as we always expected him to try and pocket some of it). It is very annoying as we have treated the property extremely well during our 5 year tennancy, went above and beyond in cleaning it, have never once been late with rent etc etc, and left it in spotless condition, practically as we found it with very, very minor wear and tear that I would consider to be under what would usually be expected of a tennancy of our length..

Anyway, we have sent a polite reply back, telling him that there was never a freezer draw, only a pull down door that has come away (quite normally I think for an appliance of its age), and that we would appreciate our deposit back, as per his email of 4 days ago. Will have to see where it goes from there. If he still gives us aggravation, we will send out the email gilf suggested.

Many thanks.

you should send a letter before action as the first step to taking him to court. He will still have to prove in a court that his deductions are beyond 'fair wear and tear' which after 5 years can be said to include a lot. Try sending this and get a proof of posting. Only communicate by letter and always get a proof of posting. He will most likely back down when he realises you are serious. Don't settle for any deductions.

Letter before action

Dear MrXXX

Re: Flat/houseXXX

With reference to the above property

Between XXX and XXX we were tenants of this property. During this time we have never missed a single rent payment and believe we have been good tenants

The property, as per our contract, was left in the same condition as it was found, minus fair wear and tear. We are writing directly to you to demand the immediate return of our full deposit of £XXX.

If this money is not received in its entirety by XXX we will be making an application to court to obtain a county court judgment (CCJ) against you for this amount plus any court costs we accrue in the process

We look forward to receiving full payment of our deposit presently.

Yours Sincerely

[porca misèria]

+1

In fact, if you've stayed there for 5 years then should he even be taking £50 for cleaning? That's his job!

If you've stayed there 5 years then waving the TDS at the landlord is a display of ignorant folly ...

[yokel]

We had a similar issue (albeit over bigger sums of money - put it is the principle that really gets you)

If you end up going to the small claims court it's best if you can prove that you have tried to solve the dispute at the onset - don't just go straight to court. I think you should write to your landlord (proof of posting essential) stating clearly that you dispute the deduction for the fridge (you could even dispute the deduction for cleaning at this stage even though you were prepared to go along with it initially)

Ask for details of how much money he has allocated for wear and tear (bear in mind that the tax situation is that he can set aside 10% (I believe) of the rent for wear and tear and wont be taxed on it).

Ask for a copy of the invoice and receipt for the money paid to the cleaner (he will find this difficult if it was cash in hand), and for a copy of the corresponding cleaning before you moved in.

Ask for details of how he arrived at a sum of £100 for the fridge door (it won't look good at court if he has plucked a number out of the air)

Presumably he did a check out inspection visit - if he did not bring up the fridge issue then, remind him of that and ask why he did not do so when he had the chance.

Point out that the deposit is legally your money and you expect it returned in full by a specific date.

Point out that any money he wishes to deduct cannot be used for betterment of the property (i.e. to bring it to a standard better than when you moved in minus wear and tear)

Don't know if this bit is relevant, but if you feel that any internal maintenance of servicing of gas/electrics was below required frequencies, point this out too. We were advised by solicitors that the overall game is to paint a picture of a landlord who neglects the tenant and property and tries to get money to which he isn't entitled.

Say that if you do not receive a satisfactory answer, you will consider taking the issue to the small claims court. (better than the TDS as the TDS tends to go for a compromise rather than right/wrong). Use the on-line version, we found it very smooth, it is based in Northampton so no local influence (I assume) and the costs are only £60 ish - which the landlord risks having to pay in the end (ours did).

Others may wish to comment on this aspect as well, but if you ensure your letters state `without prejudice' somewhere at the top, then any offer you make to compromise during the correspondence cannot then be taken as `cash in the bank' by the landlord and such offers can be withdrawn if there is no compromise.

If you are clearly seriously starting a legal process, you would think the landlord would not think it worth the hassle for £100 so appearing serious, well informed and determined is half the battle..

Y

Edited December 7, 2010 by yokel

[Bovril]

Many thanks again everyone.

He has emailled back to say he thinks he is being fair for taking the money for the freezer because the (8 year old) vacuumn cleaner broke down during our tennancy and he didnt charge us for the repair (!!!)

We will have to do something further, which, I was really hoping we wouldn't have to, we will send the letter as suggested. Should we also ask about the deposit protection? The last contract we signed was March 2010 even though we have been there 5 years.. I just want to put as many things in as possible to try and just get him to give it back.

Edited December 7, 2010 by Bovril

[angrypirate]

Many thanks again everyone.

He has emailled back to say he thinks he is being fair for taking the money for the freezer because the (8 year old) vacuumn cleaner broke down during our tennancy and he didnt charge us for the repair (!!!)

We will have to do something further, which, I was really hoping we wouldn't have to, we will send the letter as suggested. Should we also ask about the deposit protection? The last contract we signed was March 2010 even though we have been there 5 years.. I just want to put as many things in as possible to try and just get him to give it back.

Your deposit should have been protected as your last AST was signed in March this year. Ask about the deposit protection and if it isnt notify your landlord you will begin legal proceedings to claim back 3 times your deposit unless the full amount is returned within 24 hours.

[Dr Elk]

Your deposit should have been protected as your last AST was signed in March this year. Ask about the deposit protection and if it isnt notify your landlord you will begin legal proceedings to claim back 3 times your deposit unless the full amount is returned within 24 hours.

Angry pirate is quite correct. If it had been a rolling contract he wouldn't have need to, but if you signed a new one then he does. Now you have an added incentive of getting back triple what you were hoping for. There are a couple of threads here about people winning cases concerning a lack of TDS protection, I'd heartifly recommend reading them.

[MacGuffin]

Bovril, I'm just not feeling the anger from you.... You need to feel THE ANGER. It's your money, and this guy is trying to rip you off.

Cleaning: You should reject the £50 for the cleaning, even at this late stage. Was there a check-out inventory? Can the landlord prove that your cleaning was insufficient? No? Then the TDS or courts will not let him keep the money (YOUR money, as I have pointed out).

Fridge Drawer: This is within fair wear-and-tear. Tell your landlord he'll need to provide receipts for the replacement. I suspect he has just bought a new fridge and the £100 figure just popped into his head as a plausible figure to lie to you with. Don't allow yourself to be drawn into a discussion of the vacuum cleaner. That is a completely separate issue.

The 3x deposit penalty for not protecting the deposit: Give your landlord a scare with this. Even if he wasn't obliged to protect your deposit (I am not certain what the law is for pre-existing tenancies that get renewed in the manner you describe), he probably is even less aware of the law. Give him a good scare. I reckon he will agree to return the entire deposit in exchange for avoiding a big penalty.

[MacGuffin]

Your deposit should have been protected as your last AST was signed in March this year. Ask about the deposit protection and if it isnt notify your landlord you will begin legal proceedings to claim back 3 times your deposit unless the full amount is returned within 24 hours.

You don't even need to wait for your landlord to tell you. Call the deposit schemes yourself, and they will tell you. There are three deposit schemes:

The Deposit Protection Service (The DPS) 0870 707 1 707

http://www.depositprotection.com/

My Deposits 0871 703 0552

http://www.mydeposits.co.uk/

The Tenancy Deposit Scheme (TDS) 0845 226 7837

http://www.tds.gb.com/

Edited December 7, 2010 by MacGuffin

[sleepwello'nights]

[i am not certain what the law is for pre-existing tenancies that get renewed in the manner you describe

Mydeposits regard a tenancy renewal as a new tenancy and require the deposit to be registered anew. That's the reason why I allow my tenancies to change to statutory periodic tenancies once the initial AST expires. What's the point of paying £30 to them every time an AST is renewed.

I'm pretty sure their rules are based on a competent interpretation of the tenancy deposit regulations.

[zebbedee]

Mydeposits regard a tenancy renewal as a new tenancy and require the deposit to be registered anew. That's the reason why I allow my tenancies to change to statutory periodic tenancies once the initial AST expires. What's the point of paying £30 to them every time an AST is renewed.

I'm pretty sure their rules are based on a competent interpretation of the tenancy deposit regulations.

It would appear that the deposit on a renewal of an AST must be protected as there is precedent

http://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/

Edit:spellink

Edited December 8, 2010 by zebbedee

[Bovril]

Thanks for everyone's help on this. I feel a lot more confident now.

Letter sent yesterday asking for the return of the full deposit.

Ill keep you posted on how it goes.

B

Edited December 8, 2010 by Bovril

[Bovril]

**update**

We have recieved an email from him calling us pathetic and other such names for threatening him with the deposit scheme if he didnt pay up (thus meaning that of course he didnt protect our deposit). But, hey ho, he is returning it to us in full.

Result! Many thanks to everyone on here for helping. Moral of the story is not to give in to these LLs money grabbing demands.

B

[MacGuffin]

**update**

We have recieved an email from him calling us pathetic and other such names for threatening him with the deposit scheme if he didnt pay up (thus meaning that of course he didnt protect our deposit). But, hey ho, he is returning it to us in full.

Result! Many thanks to everyone on here for helping. Moral of the story is not to give in to these LLs money grabbing demands.

B

That's excellent news, well done.

How dare he insult you. Any landlord should be grateful for long-term tenants.

You obviously gave him a scare with the deposit scheme threat. I hope he has learned his lesson.

[Rozza]

**update**

We have recieved an email from him calling us pathetic and other such names for threatening him with the deposit scheme if he didnt pay up (thus meaning that of course he didnt protect our deposit). But, hey ho, he is returning it to us in full.

Result! Many thanks to everyone on here for helping. Moral of the story is not to give in to these LLs money grabbing demands.

B

Wait until you have your cash and then email back saying "for calling us names we are going after the 3x deposit!! YOU MUG!!"

Ok dont, not worth the bother.. but you could.... ooh the amusement

;-)

[sleepwello'nights]

It would appear that the deposit on a renewal of an AST must be protected as there is precedent

http://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-renewal-of-tenancy/

Edit:spellink

Thanks for the link. I've just read the blogging. Confirms my opinion of lawyers, the answer is a definitive "maybe".

I wonder how much would it cost you in Court to get a decision. And then I wonder how long before that decision is distinguished by an opposite decision because of a miniscule difference in circumstances.

How about an argument that a renewal is not a new tenancy but nothing more than the modification of an existing tenancy extending the term?

[Venger]

The 3x deposit penalty for not protecting the deposit: Give your landlord a scare with this. Even if he wasn't obliged to protect your deposit (I am not certain what the law is for pre-existing tenancies that get renewed in the manner you describe), he probably is even less aware of the law. Give him a good scare. I reckon he will agree to return the entire deposit in exchange for avoiding a big penalty.

The Court of Appeal. I'm not happy with what they've come out with in a case of tenants seeking the x3.

In full here at Nearly Legal, with snippet ending below.

Therefore the Court has held that the monetary penalties for non-protection of the deposit are not available to the tenant when the tenancy has come to an end. In other words tenants cannot make claims against their landlords for three times the deposit at any point once the tenancy is over.

The decision is pretty surprising. It seems that the Court of Appeal wanted to avoid tenants taking claims for the penalty a substantial time after the end of their tenancy. Personally, I always though that this is what the Limitation Act was for and that if Parliament wanted to have a claims limit that was different to that then they should legislate for it but clearly the Court did not agree. However, in a time where there are complaints about judges overriding the will of Parliament this would seem to be an unwise decision. I am looking forward to the Daily Mail highlighting this case as an example of the problem in the next few days.To be blunt, I think the Court of Appeal has got this one wrong. Sorry chaps (and Mrs Justice Baron of course) but there you are.

One of the main places in which they seem to have led themselves into error was their apparent belief that the Act says that the Court must order the landlord to repay the deposit or to pay it inot a custodial scheme. It is this fairly common error which has led to the whole discussion about the Court ordering landlords to pay back monies they do not actually have. In fact, the Act requires that the person who appears to the court to be holding the deposit should pay it back to the tenant. If the landord has returned the money to the tenant then this section drops neatly away as the tenant would only be ordered to pay it back to himself. It was in seeking to avoid the issue of ordering landlords who have already paid the deposit back to do so again, which led the Court to come up with their new limitation on claims. I see no reason why both alternatives set out in s213(3) have to be available to the Court for s213(3) to operate. In fact, it was the very fact that both alternatives would not be available that must have been in the mind of the drafter when he placed at the start of s213(3) the qualification "as it thinks fit" and thereby gave the Court the power to choose which of the two options was suitable in the circumstances before it.

The other area in which I take issue with the reasoning of the Court is when they try to justify their decision by suggesting that s214(1) should have extra text added to it so that it reads that the necessary obligations have not been complied with and are still capable of being complied with. I just don't see the purpose in adding in this sort of text when it has no real value. If the Court really wanted to save Gladehurst from the fire they could have simply read the phrase "must also" in s214(4) in a very narrow manner and ruled that this meant that if the deposit had been returned apart from legitimate agreed deductions (which would probably count as returned anyway as they were agreed) then the three times the deposit penalty could not be applied.

Finally, as my fellow blogger, Dave, has highlighted the Court has erred by agreeing with the Court in Tiensia that the purpose of the legislation was not to punish landlords. It was. The government was crystal clear that it intended the penalties to be there to punish bad landlords. By trying so hard to avoid this scenario the Court of Appeal has now successfully destroyed the legislation in two straight decisions.

One of the new issues raised by the decision is what is the position if a tenant does what is required by the Court and starts a claim during the tenancy which the landlord ignores and then, as often happens, the tenancy ends before the issue finally appears before a Court.

Following the decision in Tiensia the Court should consider the position as at the day the matter comes before them, conclude that the tenant cannot make the claim, and would then presumably strike out the tenant's case. I am not sure if the Court would award the tenant costs in this scenario. This would be a totally ludicrous outcome. In fact the only really solid way I can think of to actually claim the penalties is as a counterclaim to a possession action based on rent arrears.

The government has hinted again that it will use the Localism Bill to amend the tenancy deposit legislation to deal with these issues. If that is the case then one wonders why they objected to the amendments already tabled by Shelter and NACAB which were perfectly suitable. If they are planning to use the Localism Bill to sort this out then they had better hurry as it had its 3rd reading yesterday. In the meantime the only real penalty for a landlord who does not protect a deposit is that they cannot serve a section 21 notice.

[MacGuffin]

The Court of Appeal. I'm not happy with what they've come out with in a case of tenants seeking the x3.

In full here at Nearly Legal, with snippet ending below.

That is an appalling decision. So, it's back to the bad old days for tenants trying to get their deposits back.

[Venger]

That is an appalling decision. So, it's back to the bad old days for tenants trying to get their deposits back.

It is bad, and not a penalty as originally intended to make a landlord comply with the deposit rules. Protecting a deposit is not difficult, it helps make for a smooth process, and having it protected gives tenant some security if landlord goes bankrupt or is letting on a residential mortgage and gets property repossessed where the tenant might not be able to recover any deposit. Only upside at the moment as I remember it, a landlord can't serve valid notices on a tenant to leave until deposit is protected.

There is this from yesterday at Nearly Legal, but I'm thinking a landlord would have really had to acted very badly to get this sort of ruling made against them, and possibly because of the time lines, and maybe discretion of judge to prevent appeal a landlord can't slip out of it.

Both cases here with the x3 deposit also had claims of landlord harassment tenants too. Importantly in the 2nd case the judge also awarded the tenant £13,000 in damages, as well as the x3 deposit.

Posted: 01 Aug 2011 01:44 PM PDT

There are two appeals on cases involving claims for the return of deposits and the three times penalty in both of which – astonishingly, given the recent history of High Court and Court of Appeal decisions – the tenant was awarded the penalty. We have said before that it would now be a somewhat incompetent landlord who would be caught by a claim.

http://nearlylegal.co.uk/blog/2011/08/tenancy-deposit-penalties-awarded/

[tim123]

That is an appalling decision. So, it's back to the bad old days for tenants trying to get their deposits back.

No it's not.

You start the action against the LL before the tenancy ends and in order to avoid the fine, your deposit gets protected.

whats the problem?

tim