witholding deposit to damaged property

carmenarmen

hi, possibly a contentious posting but would welcome any advice.
I let a flat that I used to live in. I did not register with any TDS and fully acknowledge that I should have - why didn't I? Simply didn't register that I should, always return deposits, keep the money in its own ringfenced account, I thought it was for 'professional landlords'. However I was wrong and it is the law.

My problem is that a tenant rented and left the place in a mess. Dirty, furniture dismantled, no forwarding address, smoked in a non-smoking flat. I have pictures and evidence to show the general disregard and ironically if I had registered with a Tenancy Deposit Scheme I would be better protected. Tenant's dad who acted as guarantor (tenant was a student) did not accept my holding back some of the deposit to clean and replace items. The tenant contravened several clauses in the lease. The dad is chasing for all back. Says the flat was dirty when let etc. Which is nonsense. He's annoyed, I understand. And in the eyes of the law I'm in the wrong undoubtedly for technical reasons.

Should i swallow my moral issues (I love the flat, lived in it myself and am really bothered that it was so badly treated and that there's a suggestion I could have let it in any kind of poor state - but that's just emotionally useless stuff i guess) and the sting to my pocket when he moved out having to fix it up again, and pay him back the full amount, given that technically I did not comply with the law?

And if I do pay him back the full amount because I'm at risk, does that suggest an admission of guilt on my part - if he were to proceed to take me to court to get 3x is it likely to succeed?

Or should I continue to insist on the legitimacy of the neglect and the evidence I have to support it?

Or pay something more to attempt to agree to settle it now (have already paid about half back after deduction for damaged items)

To compound things I did not have an official inventory either. I now have registered with the scheme and have an inventory. I have let the flat for about 6 years and only once previously held back some of a deposit to fix an oven that had been left broken. This is the worst anyone has ever treated it.

Would welcome any constructive comments re options I might have if any and vulnerability to being chased to return 3x deposit if I do return full amount.

roses

Theoretically you might be able issue small claims against the dad as the guarantor and put a charge on his house if he doesn't pay up assuming you do have evidence. However if you go to court and it may transpire that you were supposed to protect it but and hence you might get fined 3x the deposit. Either way unfortunately it doesn't look good

Jowo_2

You have been probably been caught out due to your sloppy screening, non-compliance of the law with TDS, poor approach to paperwork and probable failure to inspect the property regularly. Unless you have an inventory signed by the tenant at the outset of the tenancy, a later one produced by yourself isn't worth the paper its written on. You should do your best to head-off the risk of being sued for x3 the sum of the deposit by paying it back in full. If you have compounded your sloppiness by not having a gas safety certificate (if a boiler or gas appliances are present in the property) then you should be grateful that the tenant has not reported to the local environmental health department (potential imprisonment and fine of up to 20k).

If you had a proper inventory/schedule of condition and protected the deposit, you could have been taken the tenant and guarantor to court. Your negligence and unbusinesslike approach to being a landlord means you disadvantaged yourself.

Wee_Willy_Harris

Jowo wrote: »

You have been probably been caught out due to your sloppy screening, non-compliance of the law with TDS, poor approach to paperwork and probable failure to inspect the property regularly. Unless you have an inventory signed by the tenant at the outset of the tenancy, a later one produced by yourself isn't worth the paper its written on. You should do your best to head-off the risk of being sued for x3 the sum of the deposit by paying it back in full. If you have compounded your sloppiness by not having a gas safety certificate (if a boiler or gas appliances are present in the property) then you should be grateful that the tenant has not reported to the local environmental health department (potential imprisonment and fine of up to 20k).

If you had a proper inventory/schedule of condition and protected the deposit, you could have been taken the tenant and guarantor to court. Your negligence and unbusinesslike approach to being a landlord means you disadvantaged yourself.

Fully agree. It's only half the deposit being questioned, but if they seek advice from CAB or Shelter, you could be looking at that PLUS 3 x the deposit, a much more bitter pill to swallow. Look on it as an expensive lesson, but a lesson all the same, and get the deposit balance back to the tenant ASAP. You aren't the first LL to fall foul of TDP, and you won't be the last.

princeofpounds

You have two choices, assuming you do not want the 3x penalty.

The first is to hand the full deposit back *only if you have written evidence that it is in full and final settlement and that the tenant agrees not to sue for non-protection*. Just handing the deposit back doesn't get you any protection, athough a judge would probably be lenient.

The second option is to protect the deposit. The advantage of this method is that you have a chance of recovering your repair costs. But frankly it's the slimmest of chances because you did not do your inventory properly. If you do protect it, you will probably avoid a penalty but the law here turned out to be a bit of a mess. The only precedent setting case to date (though I haven't looked for a couple of months) indicates that because the law was drafted badly what matters is if the *scheme* required you to protect on time. And only one of the three schemes did, and in that case only after a certain point. I don't know what the exact requirements are right now but you should check this. The case was reported on nearlylegal.

So I'd try to go for option A, hopefully not alerting the tenant to a 3x award. If they want to sue, then you should go for option B.

clutton_2

pay up.... get a surrender of tenancy signed by tenant... move on.. do it better next time...

carmenarmen

Thanks. Good sound advice. The Gas/boiler and electrical safety checks are carried out yearly. I was loose around the admin and checking re inventory and regular dropping in on all this. Interesting suggestion re protecting the deposit now but he's been gone a year in september and this has only become a bigger issue now. Best thing i think is to swallow it all and close up and move on. Appreciate the responses.

tbs624

carmenarmen wrote: »

hi, possibly a contentious posting but would welcome any advice.
I let a flat that I used to live in. I did not register with any TDS and fully acknowledge that I should have - why didn't I? Simply didn't register that I should, always return deposits, keep the money in its own ringfenced account, I thought it was for 'professional landlords'. However I was wrong and it is the law.................
I have let the flat for about 6 years and only once previously held back some of a deposit to fix an oven that had been left broken. This is the worst anyone has ever treated it.

My highlighting

The Tenancy Deposit Regs came into force on 6 April *2007* - you say you have been letting the property out for 6 years. How many AST's and changes of T over the relevant period?

Sorry, but I get tired of reading posts complaining about what a T has done wrong, when the LL thinks it's okay to plead ignorance of the law regarding their own shortcomings. Simple type "tenancy deposit" into Google and up pops http://www.direct.gov.uk/en/TenancyDeposit/index.htm as first link.

The tenant contravened several clauses in the lease.

You clearly expect a T to treat you and your property with respect yet you fail to meet even the most basic of legal obligations.

=And in the eyes of the law I'm in the wrong undoubtedly for technical reasons.

The T, according to you, "contravened several clauses" you ignored Statute but that's just a mere technicality in your eyes?

It's not just a "technicality":you are legally obliged to scheme register the tenants deposit and to give him/her the scheme's prescribed information. You did not do so. For how many Ts was this the case?

You can try doing as other have suggested or you can push your luck:let your T pursue to court for non registration of his tenancy deposit,with him asking for the return of it in full, plus the 3x penalty payment plus court costs and then you can chance your hand at claiming against him for the damage you say he has caused.

And if I do pay him back the full amount because I'm at risk, does that suggest an admission of guilt on my part - if he were to proceed to take me to court to get 3x is it likely to succeed?

There does not need to be an "admission of guilt" - the *facts* are that you did not act within the law, but its civil not criminal law. For your own claim against the T to succeed you would need good evidence of the condition of the property at the start of the tenancy and its sounds as though you do not have that.

For your own sake, and that of your future T,s sign up to the NLA or RLA and familiarise yourself with your obligations as a LL:tax deductible membership fees and much useful information.

carmenarmen

I don't need a sermon thank you. I admit to not adhering to the law but I also treat people and property with respect, behave fairly (if naively, ignorantly and illegally in this case) and have done with every tenant that has been in the property, which this tenant didn't do in return. The law is there to protect victims whether tenants or landlords and I'm a bigger fool in this case for being sloppy. And yes, I suspect the victims are more often than not, the tenants.


Thanks however for the practical information.

mustrum_ridcully

Seeing as you've been so lax regarding TDS, I have to ask this - you have been declaring your rental income to HMRC haven't you?

carmenarmen

Not that it's any of your business, but yes I have of course. Back off on the assumptions please.