Ex tenant threatening court over return of deposit

G_M

DVardysShadow wrote: »

Mostly, I agree, but I tend to think that this tenant has misled the solicitor to some extent.

A short letter to the solicitor stating that

• the deposit is being dealt with via the DPS
• all dealings with the deposit will be addressed with the lead tenant
• no deposit was received directly from this tenant

I agree. The lead tenant's 'agreement' to the deduction via DPS is strong evidence. As previously stated. in a 'joint and several' situation, the agreement of one legally implies agreement of all. 'The Tenant' is a single legal entity which just happens to be comprised in this case of several individuals. 'The Tenant' agreed to the deduction.

As for which individual actually paid the deposit and/or is due its return, that is a matter for dispute between the tenants themselves. You duty is to return the appropriate proportion of the deposit to the lead tenant, which you appear to have done. You might suggest, to the solicitor, the court or the individual, that his dispute should be with the lead tenant, not you.

For future reference, you should distinguish between a 'holding deposit', taken in advance of a tenancy to hold the property for the prospective tenants ie take it off the market, and a 'security deposit', taken when the tenancy begins. It is only the 'security deposit' that has to be registered in a scheme.

I would also in future seek a UK based guarantor for international tenants if possible.

sarahevie

G_M wrote: »

For future reference, you should distinguish between a 'holding deposit', taken in advance of a tenancy to hold the property for the prospective tenants ie take it off the market, and a 'security deposit', taken when the tenancy begins. It is only the 'security deposit' that has to be registered in a scheme.

I would also in future seek a UK based guarantor for international tenants if possible.

Thank you, I agree about 'holding deposit', however the 'friend' said the holding deposit was to be used as the actual deposit, as no other monies were taken and therefore I felt it had to be registered.

I tried to get a UK based guarantor but the 'friend' didn't want to be involved, was happy to view houses on their behalf, but I can't blame him not wanting to get further involved. Being a guarantor is a big deal.

It appears I have made a mistake though as the DPS says when deposits have come through a third party they should be the 'lead' tenant - whereas in this case it was one of the 'tenants' on the AST at their request as 'friend' wanted nothing to do with it. He didn't want to provide his address details etc.

I am questioning the solicitors motives, as their costs shouldn't be awarded in a small claims court, and surely the letter that has been sent will have cost the 'tenant', so surely they feel they have a good case or they are going to incur costs that they won't be able to recoup.

BitterAndTwisted

I don't think you did make a mistake with lodging the deposit; you lodged it in the name of one of the tenants on the AST. That is perfectly reasonable and correct.

Solicitors can be persuaded to write as many useless and pointless letters as long as their client is paying for them to be done. It does not mean that the solicitor in question has agreed with the content or advised their client that it should be written. Write you letter as DVardy has suggested if you want to but take all the time you like to do it.

£400 for clearing rubbish, keys and damage to a door sounds very reasonable to me. Perhaps these students are rich kids who are used to getting their own way by bullying other people. That's exactly what it sounds like from here.

sarahevie

BitterAndTwisted wrote: »

Solicitors can be persuaded to write as many useless and pointless letters as long as their client is paying for them to be done. It does not mean that the solicitor in question has agreed with the content or advised their client that it should be written. Write you letter as DVardy has suggested if you want to but take all the time you like to do it.

I responded briefly to the solicitor in the way Dv suggested. Making it clear who paid the deposit, that it was dealt with via DPS etc. Just in case their 'client' failed to explain it clearly.

Not sure whether to expect a reply but the more I look at my evidence the more I think that I have a case.

They didn't vacate at the end of the AST but the day after, so in theory, the AST should have been periodic, meaning they have to pay for another month. Didn't bother about this at the time as I found tenants to move in the day after. Early Sept is very busy where I am with the 'new' intake.

G_M

sarahevie wrote: »

...

They didn't vacate at the end of the AST but the day after, so in theory, the AST should have been periodic, meaning they have to pay for another month. Didn't bother about this at the time as I found tenants to move in the day after. Early Sept is very busy where I am with the 'new' intake.

Keep this in reserve. If a claim is lodged in the Small Claims Court (which I doubt) then as well as putting in your defence you make a counter-claim for a months rent since they moved to a Periodic and failed to give appropriate notice.

edit: they'de have to pay for just short of TWO months rent in order to include a full rental period!

sarahevie

I have received a response from the ex tenants solicitor this afternoon. So thought I would share.

As you are aware and as you stated in your email dated 03 November 2011, Mr XX acted as agent for the tenants and he paid the deposit on their behalf. Your contract was with our client and you are accountable to our client for the deposit. Dispute this as she isn't lead tenant

Our client has advised us that she did not have any information about the tenancy deposit protection scheme or the protection of her deposit until after the date on which the deposit was partially returned to our client. In any event, whether or not our client was aware of the scheme does not alter the position in relation to whether there is an outstanding debt. Dispute this as well as lead tenant had the repayment information.

As the tenancy agreement was a joint tenancy agreement and the tenants were, as you have stated, jointly and severally liable under it, our client is entitled to pursue you for the total outstanding deposit. If the outstanding balance of the deposit is not returned in full to our client, our client’s former joint tenants may, in any event, choose to make a joint claim in the county court with our client. Agree they would have to make it as one, rather than one individual or the others position is compromised.

Further, we understand from our client that the current tenants have signed a statement to confirm that they moved into the property on X date and that the property was in good condition, with no damage to it, on that date. Don't understand how this has any relevance. Not sure current tenants have done this. The inventory that they signed when they moved in highlighted A LOT of snagging points they weren't happy with.

In the event that you do not consider that you should return the outstanding £400 to us, please send a schedule of the deductions that you made to them and contact the Writer, to discuss this matter, so that we can endeavour to narrow the issues in dispute before court proceedings are issued. Does this mean they want to negotiate.

G_M

Dear Mr Solicitor,

Thank you for your letter of xx/xx/11.

The tenancy agreement was with joint tenants. The Lead Tenant was Mr LT. Since the tenants were jointly and severally responsible, my dealings with Mr LT constituted dealings with the tenants as a whole including your client.

Mr LT was provided with full details of the deposit protection scheme. Since the tenants were jointly and severally responsible, my notification of the scheme to Mr LT constituted notification to the tenants as a whole including your client.

As a joint tenant your client can, of course, bring any action she wishes, with or without the other joint tenants. That does not mean such action will be successful.

I fail to see how the condition of the property at the start of the tenancy succeeding your client's has any bearing on the condition at the start/end of your client's tenancy. Furthermore the inventory signed by the current tenants highlights their snagging list and outstanding issues which are now (being) resolved.

For details of the deductions made to the deposit I would refer your client to MrLT with whom these were agreed on behalf of the joint tenants. Mr LT signed off release of the deposit with the deposit scheme in accordance with the scheme's process.

If your client continues to feel she is due the share of the deposit she contributed, I suggest she take this dispute up with her joint tenants.

Yours sincerely

edit: please note I am not a solicitor...

dkmax_2

G_M +1 (minus the minor typos)

Their solicitor is either trying it on or is clueless.

paddyrg

I read the solicitor's letter as fishing a bit - I'd ignore the bit about them signing about the condition of the property, and if you have receipts to back up your withheld amount then what's the harm in sending them a scan of them, saying 'this is what I witheld and why', and 'if your client has any further claim, I suggest it is with the LT, not myself' or similar.

DVardysShadow

sarahevie wrote: »

Does this mean they want to negotiate.

No, it means that they can see that this will run to some amount of fees which they judge their client will be good for. Much wringing of hands "we nearly won that one, but ... Please pay us £800"