Tenancy Deposit Scheme - I'm utterly confused

sbloxxy

As the title says, I really am confused by various recent legal rulings. Very simply, my son's landlord has said that he is going to deduct a fairly large amount of money from their deposit for various items of damage and cleaning. My son disagrees with the amount asked for. My son (along with three students) rented the house in London and the tenancy ended around two months ago. The landlord has admitted that he did not register their deposit with anyone.
However my understanding based on recent posts on here is that if we take him to court, he will not have to pay the penalty of 3xrent as the tenancy has now ended (thats presuming of course, that the court rules in our favour). Is this right?
Presuming this is the case, we can can still issue proceedings though he will have the right to deduct any amount for damages etc. Am I right in thinking that my son has simply been denied the right to any of the Dispute Services?
Any advice woulod be most welcome.

Hump

The case you are referring to is http://www.bailii.org/ew/cases/EWCA/Civ/2011/604.html which effectively means you are left with a claim via the small claims track in your local county court

Werdnal

Yes it is correct that after the tenancy, it is unlikley that the 3x penalty will ever be enforced. If your son and his mates took action whilst the tenancy was in place, they could have a valid claim, but in reality, even that could have been countered by the LL merely protecting the deposit immediately, albeit late, and the 3x claim would be invalidated.

There are moves afoot in the recent Localism Bill, to change and tighten the rules and regs surrounding deposit protection, but this is obviously too late for your case.

Only option would be a claim for the deposit return through the courts. Did you son have a check-in and check-out inventory proving the state of the property at the start and end of the tenancy? LL has to prove their claims, so if an inventory wasn't completed, this will go against the LL in the court's eyes.

G_M

The law was very poorly drafted so does not accomplish what it was originally intended to accomplish. So yes, you are right.

The tenants will need to make a claim for the deposit (NOT the 3 x penalty). As Werdnal asks:
Check-in inventory? Signed?
Check-out inventory?
Photos?
Witnesses to condition at start/end?
Itemised breakdown by LL of deductions?
Admission by tenants to damage? Condition?

Is the dispute over the amount of deductions or justification for deductions at all?

sbloxxy

Thanks for clarifying that everyone. I do find it annoying that the landlord has managed to neatly avoid his responsibilities by simply not bothering to protect the deposit. It now means that instead of being able to use one of the dispute resolution services, we are going to have to chase him through the court, a more expensive option.
We are disputing the justification for damages at all plus the amount of some of the damages. For example, he claims that a carpet was damaged and wants to claim for a new carpet, while my son and the other tenants claim it was like that when they moved in.
He's saying that he's not claiming for the full amount that he actually could, but out of the goodness of his heart, he'll accept a lower amount if we don't argue and agree to his claims. Again, if he had protected the deposit, he would not be able to attempt to blackmail them like this.

Brb

Whilst it does seem to make a mockery out of deposit protection the LL could have chosen to opt out of ADR and your Son would need to use the court system anyway.

Is there a signed check in inventory stating the condition of the property ?

dancingfairy

Hi. Just to say that even if your son (and friends) did damage the carpet they shouldn't necessarily have to pay for a brand new carpet. Landlords expect to replace the carpet every so often. Say a carpet has a natural life of 7 years ( this is a guess) and they damaged it after it had been there for 5 years and it needed a new carpet - they would then have to pay 2/7 of the cost of a new carpet as that is all they have deprived the landlord of - the landlord can't charge new for old if you see what I mean.
Best of Luck
df

jjlandlord

Let's not overlook the fact that the 3x deposit penalty is in addition to either being obliged to refund the deposit in full or to protect it.
I believe that this should still hold even after cases mentioned.

So OP's son should pressure LL to refund deposit in full on these grounds. A money claim against LL should also imo seek refund in full.
In any case, it is for landlord to prove that he is entitled to keep some of it.

wastedtalent

So, check in/check out reports? Were these done?

G_M

sbloxxy wrote: »

.... I do find it annoying that the landlord has managed to neatly avoid his responsibilities by simply not bothering to protect the deposit. It now means that instead of being able to use one of the dispute resolution services, we are going to have to chase him through the court, a more expensive option.
....

Although the leglislation is flawed, it still provides protection.

Tenants only need to use a little commonsense and take a little responsibility for their self-protection.

It's really not hard to check that 'their'money is being protected in a registered scheme.

Sadly many tenants just hand over their money (as well as signing inacurate check-in inventories or guarantee deeds they don't understand etc) and then act shocked at the end of the tenancy when things go belly up.

I'm not excusing bad landlords, but many tenants could do more to protect themselves. The leglislation is there. Until 2007 there was no deposit protection at all and tenants had no choice other than the courts.

franklee

G_M wrote: »

Although the leglislation is flawed, it still provides protection.

Tenants only need to use a little commonsense and take a little responsibility for their self-protection.

It's really not hard to check that 'their'money is being protected in a registered scheme.

Right so say T checks and it's not in a scheme and L ignores T's request to comply. What can T do about that? He can sue for 3 x but the tenancy could end before it gets heard and oops the T has lost. Or L can protect on the court steps and and oops T has lost again. In losing T probably has to pay costs. It seems to be the best a T can do is sabre rattle and hope L doesn't realise how toothless the law is? (I know it means L can't serve a S21 but that's not really of much use if it's T who wants to leave).