Deposit issues

davidbecker

Hi,

I would really appreciate your advise on the following two matters. My fiancee and I are pulling our hair out and getting quite concerned.

1. We moved into a property with an assured shorthold tenancy agreement in October 2007.

We have recently moved and at are incurring some major disagreements with our now ex landlord.

We are strongly disagreeing re the state of the flat and I am concerned that the only way to resolve the matter will be through the courts.

I believe that we have a strong case. No inventory was produced when we moved in and I am now under the impression that our deposit has not been protected for the duration of our tenancy.

Even though we are getting married next year and could do with the money we are not out to get the 3x the deposit that we may or may not be entitled to. Just the money we are owed.

Should the above be the case please advise the best course of action and our chances of being successful. I have read that this can be a difficult matter to resolve. Particularly if our landlord now secures our deposit over the coming weeks whilst it is under dispute.

2. During our stay we had a water leak in the toilet that caused a large water bill. It is my understanding that all sanitary fixtures are the responsibility of the landlord. The landlord arranged to fix the leak but is denying responsibility for the bill even though we advised them when it first came to our attention. From speaking to friends and our contents insurers I am confident she should claim it through her buildings insurance but she continues to deny responsibility. Please advise.

Thanks in advance.

David

honeyD

Hi,
Not sure about your second question but to help a little with the first:
Check with all 3 tenancy deposit schemes by telephone to see if your deposit is protected. Im not sure if the landlord can protect it now the tenancy is over but someone else with more knowledge will answer that.
Due to there being no inventory the landlord cannot prove the state of the flat before you moved in and it is up to them to prove you did it, and without the inventory they cant. If you are not wanting to go to court about your deposit, first like I said check with the schemes and then send a letter recorded delivery to the landlord saying to return your deposit within x amount of days or you will start court proceeding for non-protection of the deposit which could mean you get 3x the amount as they broke the law. Obviously better written than that though! I think you may have to write "Without prejudice" on the letter but again someone more knowledgable will be along soon I am sure, so if I am wrong anywhere please someone correct me as I am not an expert, just an interested reader of this forum.

princeofpounds

- check with the three deposit schemes to see if your deposit is protected or not.

- if it is, raise a dispute with the agency. Arbitration will be organised and they will decide on your liability. The burden of proof rests with the LL, but obviously any evidence you have (photos, written records etc.) will be of use.

- if it is not, you need to write a 'letter before action' to your LL. This does not need to be complicated. Simply state that you dispute their account of the condition of the property and note that the deposit has not been protected within 14 days of receipt as required by law. Point out that a court can award a penalty of 3x the deposit to the tenancy for failure to comply. State that if you do not receive your full deposit back within 7 days you will initiate a small claims court case.

Do not write 'without prejudice' on it. This is a phrase which makes a document unadmissable in court, which is useful for conducting negotiations to reach settlements without compromising your position in court. You simply need to demonstrate that you tried to notify the LL before you resorted to court.

- The next step is to fill out an N208 form and actually start the case, but it's easier to take this one step at a time. They may return the deposit or come back with a more reasonable offer. Or they may protect the deposit late which will give you access to the independent arbitration procedure.

- This will involve a bit of leg work and a bit of cost (but costs are potentially chargeable to the loser in a court case so keep a record of all of them!) but it is not actually that hard to do if you are organised.

davidbecker

Thank you both for your responses. So if the landlord puts the deposit into a scheme will I still be able to go to court if we are unhappy with the result of the arbitration precedure?

Secondly, does anyone have an answer to my second question.

Thanks again.

David

princeofpounds

Thank you both for your responses. So if the landlord puts the deposit into a scheme will I still be able to go to court if we are unhappy with the result of the arbitration precedure?

You cannot go to the court for a deposit if it is put in the scheme and you accept arbitration.

You can refuse arbitration and go to court but you need a good reason to do so or the judge won't be impressed.

Arbitration is actually quite fair and evidence-based. In fact some LL's complain about it because of the requirement for proof (when the old system was always deduct first and prove later!). You shouldn't expect to get a particularly different decision from a court.

You can still go to court for the 3x penalty, but unfortunately some judges (though a minority according to nearlylegal) are too lenient with LL and won't apply a penalty for late protection even though that seems to go against the law itself. There has not yet been a precedent-setting decision as no-one has appealed to a higher court on the matter yet as it involved serious costs.

But the main point is that you will at least get your deposit under proper custody.

Question 2 I am less certain about. I think if the LL was reasonably quick in dealing with the problem it is not her liaiblity - that is only if she was unreasonable in fixing the problem. But I am not sure. Landlordzone forums would have people who would know.

clutton_2

""It is my understanding that all sanitary fixtures are the responsibility of the landlord."

many ASTs include a set of clause as to what the LL is responsible; but if yours does not, then i think it fairly safe to assume that the repair of the sanitary ware was the LLs responsibility. You would have to prove excessive water useage, by bills, useage figures incomparative months etc , and include these in your consequential losses claim, alongside your claim for the deposit return

davidbecker

many thanks for all the advice.

-Ad-

If there was no inventory before hands then you will win the arbitration with the deposit company, if there even was one.

If the LL doesn't return your deposit then he will be a silly person indeed.

The other posters have covered your next course of action. FYI I contested a desposit deduction, and even with an inventory at the beginnning (done) by me, I still won. IT wasn't hard and just involved putting across the facts, e-mails, pictures, etc.

davidbecker

Looks like we are going to court. Has anyone used the online service (MCOL)? If so is it straightforward and worth using?

Jowo_2

I'm not sure if you can use MCOL for the x3 penalty but someone else will know.

But remember you have to be able to demonstrate court action is a last resort - did you send the landlord a letter before action to make it clear that he has one final chance of settling this before you take him to court?

davidbecker

Thanks. We have corresponded with them through mostly email. These are all saved and on record. She has been failing to respond and ignoring our questions and requests. She has now not met two agreed deadlines and has deposited some of our deposit into my account (less fees we are disputing)without prior notice or agreeing the amount. She seems unkeen to enter negotiations and we have made it clear throughout that we do not want to go to court.
My latest email gave her a further deadline before we will have to take court action. She won't put it into a deposit scheme and go through arbitration and is just ignoring our questions.