Tricks tenants get up to

clutton_2

""I thought that you could hand the money to mydeposits but not accept ADR and the tenant would have to prove case in court or the deposit amount would be returned to you""

i wonder how long the tenant gets to issue proceedings before the LL can claim the money ?

if this is the case, then clearly it is a slightly better scenario from the landlords point of view - but - there is always a but

"mydeposits" charge a fee for LLs to a) join the scheme and b) register each deposit - and ANOTHER fee for every AST renewal !!! - so that i dont lose even more of my cash flow, as far as i am concerned, this will mean me having all my ASTs on periodic - no bad thing for me - but less security for the tenants.


i am currently researching arbitration legislation to see if i have a right to appeal to the courts to look again at the DPS decison - anyone got any experience of this ?

franklee

Hi clutton,

As far as I can see this does no one any favours as it increases uncertainty for both sides as if we haven't got enough of that already.

You (and us readers here) should at least be able to understand the ruling which as of now we can't as it doesn't make any sense.

It almost reads like a junior office drone, who has never heard of a periodic tenancy, applying the OFT unfair terms without understanding them. This is clearly not right.

The only other thing may be as you say, that the tenant submitted evidence that you have not seen. I am surprised if you do not have a right to ask for the whole file now which seems the next step to me, I'd ask anyway.

clutton_2

thanks franklee - i am looking at court action, and could then ask DPS to provide copies of all the evidence submitted to them - which no doubt they would want to hide - but full disclosure is what courts can order.

i know you and i differ on section 21 etc, but, all my tenants were on periodic for long long periods - years some of them (until LHA came in when we needed new agreements to change from HB to LHA) - and only one tenant in 10 years has asked me for a renwal of her AST - i was more than happy to oblige. If the LL/T relationship is good, then fixed period/and/or/statutory is simply not an issue.


i have, in truth, not decided what to do re future tenancies, other than i have already amended my forfeiture clause, and have added further paragraphs re notice requirements in my T&Cs which form an attachment to the AST - and wil now get the tenant to sign to say they understand.

i think the "drone" has arrived at the conclusion that as my "forfeiture" clause (notice clause") was deemed unfair - therefore the tenant did not have to comply with it. However, the Cadwallader case which set an important precedent in 2000 re periodics, blows this DPS decision out of the water - i think the "drone" needs to go on a NLA landlord training course and learn some law !!

you also say ""I am surprised if you do not have a right to ask for the whole file now which seems the next step to me, I'd ask anyway."" DPS T&Cs categorically state that once LL & T agree to arbitration, they agree that DPS decision is final, and there is no appeal.

Oddly enough one of their T&Cs clauses says that if they make an error the maximum amount the injured party can claim is the amount of the deposit - so no consequential losses then ...... Unfair term ?? methinks yes !!!

franklee

clutton wrote: »

might you be able to provide me with "" (see Group 18(c) for our views on these terms"" please franklee ?

Don't know if you still want this as you've probably found it already but just in case here it is:

Group 18(c): Unfair enforcement powers starts on page 101 but as it's in a table it's hard to copy out. I think this is it:

Forfeiture and similar termination clauses

Unfair terms
If the rent or any instalment or part thereof shall be in arrears for at least seven days after the same shall have become due (whether legally demanded or not) or if there shall be a breach of any of the terms and conditions of this agreement on the part of the tenant herein contained the landlord may re-enter the property and immediately thereupon the tenancy may shall absolutely determine without prejudice to the other rights and remedies of the landlord.

Ways of revising terms
If the tenant is at least 21 days late in paying the rent or any part of it, whether or not the rent has been formally demanded, or has broken any terms of this agreement then, subject to any statutory provisions, the landlord may forfeit (ie: bring to end) the tenancy and recover possession of the property. Any other rights or remedies the landlord may have will remain in force. (Note: This clause does not affect any rights of the tenant under the Protection from Eviction Act 1977. The landlord cannot enter the property or evict a tenant without a court having first made an order for possession).

Unfair terms
If the premises shall be left unoccupied for more than 21 days the landlord may give notice that the landlord seeks possession of the premises.

During the last three months of the tenancy or at any time if any rent or part thereof shall be in arrears and unpaid for a period of 14 days or more to permit the landlord to re- enter on the premises to affix notice boards for the re-letting or selling of the property and not to remove or obscure the same.

Ways of revising terms
The Landlord can only remove the Tenant from the Premises by giving the Tenant notice in writing of his intention to seek a possession order (even after the Term of this Agreement has expired) and by obtaining a court order. The court will only order the Tenant to leave the Premises before the expiry of the Term if one of the reasons set out in paragraph 25.1 of this Agreement is proved.

Goods belonging to the tenant

Unfair terms
In the event that the tenant's belongings are left in the property after the tenant has vacated it, such belongings will be deemed abandoned and the landlord may remove, sell or dispose of these without being liable to pay for any compensation. The tenant will be liable for all costs of removal and disposal or any other losses and these costs and losses may be taken out of any deposit.

Ways of revising terms
The tenant will be responsible for meeting all reasonable removal and/or storage charges when items are left in the premises. The landlord will remove and store them for a maximum of one month. The landlord will notify the tenant at the last known address. If the items are not collected within one month, the landlord may dispose of the items and the tenant will be liable for the reasonable costs of disposal. The costs may be deducted from any sale proceeds or the deposit and if there are any costs remaining they will remain the tenant's liability.

All charges as rent

Unfair terms
The tenant agrees to pay as additional rent all other moneys which may become payable to the landlord under the terms of the agreement ...

Ways of revising terms
Term deleted.

franklee

clutton wrote: »

thanks franklee - i am looking at court action, and could then ask DPS to provide copies of all the evidence submitted to them - which no doubt they would want to hide - but full disclosure is what courts can order.

i know you and i differ on section 21 etc, but, all my tenants were on periodic for long long periods - years some of them (until LHA came in when we needed new agreements to change from HB to LHA) - and only one tenant in 10 years has asked me for a renwal of her AST - i was more than happy to oblige. If the LL/T relationship is good, then fixed period/and/or/statutory is simply not an issue.


i have, in truth, not decided what to do re future tenancies, other than i have already amended my forfeiture clause, and have added further paragraphs re notice requirements in my T&Cs which form an attachment to the AST - and wil now get the tenant to sign to say they understand.

i think the "drone" has arrived at the conclusion that as my "forfeiture" clause (notice clause") was deemed unfair - therefore the tenant did not have to comply with it. However, the Cadwallader case which set an important precedent in 2000 re periodics, blows this DPS decision out of the water - i think the "drone" needs to go on a NLA landlord training course and learn some law !!

you also say ""I am surprised if you do not have a right to ask for the whole file now which seems the next step to me, I'd ask anyway."" DPS T&Cs categorically state that once LL & T agree to arbitration, they agree that DPS decision is final, and there is no appeal.

Oddly enough one of their T&Cs clauses says that if they make an error the maximum amount the injured party can claim is the amount of the deposit - so no consequential losses then ...... Unfair term ?? methinks yes !!!

Have you asked the NLA (is that the one you are a member of) about this? Do they have any views on the levels of skill in these arbitrations.

I did realise there was no appeal in DPS, but had thought you'd at least be able to see all the evidence that went into the ruling. It seems not from what you've said which seems odd as, speaking generally about all cases, how can lessons be learnt from it if both parties don't get to know in detail how and why the decision was reached?

I'd be curious to see the before and after version of your "forfeiture" clause. Have you managed to pin down what the problem was then or it is just a general modification?

tbs624

Clutton - have you posted this adjudication up on LLZone for their comments?

clutton_2

yes i have posted on LLZ

yes i am an member of NLA - i am waiting to hear back from them

i will write and ask them for the evidence they considered but doubt they are under any legal obligation to provide me with it unless a judge so orders

franklee many thanks for all the "right and wrong - clear/unclear clauses" - this just makes my blood boil even more actually !! whatever happened to being responsible for ones own actions ? i have only once in my life signed something without understanding it - and that led to a court case !

why cant folks just take responsibility and talk to their landlord, ask questions, go to CAB or talk to someone about their ASTs - why all this perishing nannying of tenants ? if i buy something in a shop, or enter into a credit agreement i am expected to read the T&Cs and understand them ? Why not with tenancy agreements ? hey ho - thats life and thats part of being a LL.

talking of T&Cs, DPS's T&Cs are in the smallest typeface "small-print" known to man - even when i asked for paper copies they still sent them in this tiny type-face.

neas

Haven't read all the thread (its confusing)... can you summarise whats happened in 3-4 lines?

1. You served a Section 21 at some point during the tenancy i.e the sword of damocles? Is this why they are siding with tenant?

If so, then no offence but as a tenant sitting on the other side of the fence my letting agent did this to me too.. and when i found out the true meaning of 'this bit of paper'.. i was furious and also tempted to do what your tenant did to you... just out of 'teaching them a lesson'. I dislike being told at the start of a contract that I have to move out at the end of the tenancy (no matter how a S21 is worded its purpose is to gain possession of a property).

If a S21 is not a 'I need possession of the flat on this date' and does not allow you to start immediate court proceedings for possession then you'd have a leg to stand on in my eyes... but its not... a S21 is meant to give 2 months notice... at which point typically court proceedings would start to gain possession.

This thread should be renamed to 'Tricks Landlords get up to'.. as the Sword of Damocles is a nasty trick to play on a new tenant.. and altho i feel bad for your loss of rent.. i'm on the tenants side as I have personal experience of this shoddy letting/landlord practice. And in some ways karma has been restored... play nasty tricks on your tenants... get a nasty trick played back?

silvercar

neas, I think you've missed the point. Clutton's tenant decided to leave 5 days after the end of a fixed term.

Clutton was led to believe that they were moving onto periodic tenancy but then they changed their mind and wanted to leave. Clutton told them they needed to give one month's notice (ending on a rent day) but they decided that they were leaving 5 days after the fixed term finished. They used the fact that it was the end of the fixed term and so could leave with no notice. Clutton (correctly in my view) pointed out that the tenancy was now periodic as the fixed term had finished and 1 months notice was required. The deposit scheme people sided with the tenant.

clutton_2

neas - you admit you have not read the thread, yet you already side with the tenant ?? how is that sensible ?? before jumping to incorrect conclusions you might at least understand the proper story ...... clearly as you are both judgemental and too idle to read the whole thread, silvercar has summed it up perfectly for you

yes, i do normally issue Section 21s at the beginning - but in this case i did not - and when i do i always explain its function very clearly.

there is ample case law to warrant the deposit being returned in full to me

had i been a "trickster" landlord i would have claimed damage as well - as it is i have not claimed any of the deposit for damage (there wasn't any, althuoght it was very dusty) - so please dont lump me in with landlords who have treated you badly.