Tenant refusing to move out until deposit returned, but flat has been damaged!

Wellington_B

Dear anyone,

I'm new to all of this, so please could I have some advice.

I've had a tenant in my flat for the past 6 years. She has been fine, is on housing benefits and has usually paid the rent on time. She's always been a bit dipsy, but has become awful now that she's moving out.

I've asked letting agents to take over the property, and they've gone in with prospective new tenants to find that the carpets are, in their words, disgusting, that there is water damage on the wooden floor boards, her children have crayoned all over the walls and it's generally in a state. I last saw the property about two years ago, and knew that she had put some wallpaper up, but was trusting her to remove that at the end of the tenancy. I was expecting wear and tear, but the letting agents think it's way beyond that. At that point, I re-sent her a copy of her tenancy agreement, and suggested which parts she needs to re-read before moving out. However, the letting agents advised me not to enter into discussion with her in case she became difficult. She now has!

She phoned today, asking for her deposit back early (her tenancy expires on Saturday, but she wants her deposit back on Thursday), saying that she needs it to provide the deposit on her new place. She is not planning on moving out until Saturday! I explained that the letting agents feel that what she has done goes beyond fair wear and tear, that she needed to remove the wallpaper she had put up, look at if there was water damage etc. at which point she started shouting at me down the phone, saying that she had to redecorate because there were mice in the flat. First I've heard of it! She has also given my letting agents lots of abuse, and is saying that until I give her her deposit back early, she won't be able to move out and that I've put her in an unfair position!!

I really want her out of the property, but just can't afford to give her back her deposit just so that she goes quietly when I'm going to have to pay out to repair damage. I also don't see why I should on moral grounds - I've been a really easy-going landlady, I've kept her rent down for her because I wanted to give her a chance in life, and she has breached her contract. I'm happy to return any money that she is owed, I'm not out to fleece her, and I've been at the receiving end of letting agents who ham up problems with returning deposits, but the contract clearly states that she should not cause damage, and also says that any remaining deposit will be forwarded to her new address within a month. She is expecting me to brush that aside. However, I'm also very heavily pregnant and am dreading confrontation with her and her family when I go to check her out of the property.

Any advice on what I should do?

Thanks,

WB

townendwig

Hi WB

Sounds painful! You say you haven't visited the property for 2 years had there been any inspections in that time? Surely the letting agents would have inspected at some point no?

You also mentioned you need the deposit as you can't afford to pay for the damage - it sounds like you must have already had a lot of unbudgeted spend during the six years this tenant has been there?

I imagine six years without voids should be enough to pay for the upkeep at the end of that six years although I don't know the scale of the costs, will the deposit cover what you have to spend?

Regards,
Wig

girleight@

Have you decorated in the last 6 years? If not then you would probably expect to have to replace carpets and decorate after that amount of time anyway so you're not allowed to profit by taking the tenant's money. Look at apportionment and expected lifespans.

http://www.chrisulph.co.uk/blog/2011/01/23/tenancy-deposit-deductions-and-apportionment-case-studies/#2

Yorkie1

By following your argument, girleight@, no LL could ever claim any deposit from a T for any damage once the T had been in for a certain length of time.

Yes, LL cannot 'profit' but equally T cannot expect to walk away from damage scot-free. For example, if repairs have to be done to walls before standard redecoration. Or repairs to flooring which should not have damage under normal use.

I'd be telling this T that she is not entitled to her deposit back before leaving. Otherwise there is no way that a proper inspection for damage, or fair wear and tear, and a considered assessment of betterment etc, can be reached.

OP, I assume there was a check-in inventory, though? If not, you're on a sticky wicket.

princeofpounds

Do you have a proper inventory from when the tenancy started?

Has she been there on one contract since the beginning, or have you renewed?

Is the Deposit in a protection scheme? (It may or may not need to be depending on the previous answer)

If you want her out, and she is not in a fixed term, then you will need to issue a Section 21 and/or Section 8 notice, properly, then get a court order. This will not take forever, but it will take some time. You run the risk of her stopping paying rent, which you would be able to get an order to recover, but actual enforcement can sometimes be difficult (easier if you know where she works or if she has accounts with money in them and you know the details).

Some people might advise you to give in on the deposit to save time and worry, especially given enforcement issues as noted. But if you do that you need to do it carefully, with a written acknowledgement that she has surrendered the tenancy, preferably executed as a deed and witnessed. Otherwise she can just say thanks and walk back into the house.

You do not need to confront her personally. Send an agent or personal representative to inspect if you like.

Werdnal

Firstly, leaving aside any willful damage caused by the tenant/her kids. after 6 years I feel you are very unwise to be showing prosective tenants around without atleast attempting to refresh the property, re-decorate, or possibly re-carpet. Whether the carpets are dirty or not, surely after 6 years wear, they are coming to the end of their useful life, and crayon on the walls is one thing, but the paintwork must be looking a little tired anyway!

As for the tenant refusing to leave without her deposit, do not feel pressured into giving it back until she has gone.

When you say she has been there 6 years, when exactly did the tenancy start, and have there been any renewals of the tenancy signed since? I ask because since April 2007, all tenancy deposits should have been secured in a government scheme. If the tenancy has been renewed since then, you should have lodged the deposit in the required scheme.

Did you have a written inventory at the start of the tenancy, detailing the condition of the property, each room, the carpets, fixtures and fittings etc. This is imperative as otherwise you cannot prove what the start and end condition is.

When is tenant due to leave? Does she have another property lined up? Rather than having any confrontation, write to her, stating that under no circumstances can you permit return of her deposit until the property is handed over with vacant possession, and you have conducted a check-out inventory to verify the condition and substantiate any damage claims you may wish to make from her deposit. Send this first class, keeping a copy.

If she then goes off on one, you can call her bluff by issuing her notice - you will need help with this as you might have to go to court to enforce it so it needs to be 100% correct and water-tight.

As for the damages, you might need to resort to a moneyclaim to get the cost back from her, but do not get into any arguments now, as the most important thing is to get rid of her and get your property back, although even this may take some time.

For the meantime, do yourself a favour and stop showing prospective tenants around, as until the property is vacant and in a fit state to let, you cannot offer it to anyone anyway!

Wellington_B

Hi,

I've only just appointed the letting agents as I was managing the property myself (bad mistake, not doing that again!). However, I moved a considerable distance away so haven't done a property inspection for a couple of years (again, stupid mistake, shouldn't have been so trusting!).

I do still have the tenants original deposit (she moved in before the Deposit Protection Scheme, so I've kept it in a separate account), and I've told her that I consider repainting to be covered under wear and tear and would not consider charging her for that. But I can't afford to both return a deposit to her and then start paying out to get decorators in to resand the floor boards to repair the water damage and remove marks where she put down laminate flooring without permission, to steam off wallpaper, remove glow starts from the ceiling, etc. Also, morally, I don't see why I should.

I haven't seen the damage yet - the letting agents that I've appointed would be happy to send in a decorator to get a quote but she's now said that she's not allowing them back in the flat. I know that letting agents do tend to exaggerate the extent of damage, but I can't assess until I get in there. I'm also not a professional so won't know how much it will cost to put right any damage. I don't want to go in until the tenancy ends because of her attitude towards me on the phone, but I'm also not looking forward to her and her family surrounding me on Saturday and demanding cash off me then and there!

Anyone want to come and hold my hand?!

WB

jjlandlord

[Assuming AST in England or Wales]

Regarding deductions to deposit, as others have pointed out you must have a schedule of conditions / inventory dating from when T moved in in order to prove any damage beyond wear and tear. Considering T has been there 6 years wear and tear is probably important.

her tenancy expires on Saturday

Based on what?
You, as landlord, cannot end the tenancy. Only T can by serving a valid notice to quit, or one that you accept as such.

You say that you have hired a letting agent. If they haven't asked you the question you've been asked in this thread, and have not otherwise been able to help you, I would suggest sacking them quickly...

Wellington_B

Thanks, everyone, for the replies and advice - it's very appreciated.

The tenant moved into the flat in May 2006, so before the tenancy deposit scheme. I've not renewed the contract since then as I didn't put her rent up, and she wanted a year's lease on renewal, which I didn't ever want to do in case we came up against redundancy etc. and I needed to sell the property. The tenancy agreement is one of those generic ones from WHSmith, which states that if the tenancy is not renewed it moves to a periodic tenancy. We also had a very basic inventory that only recorded what was in the flat rather than the condition of it. So it doesn't explicitly state that the flat was newly decorated and painted throughout, but it also doesn't note any damage. She signed all of that in front of witnesses.

It's the new letting agents who have been showing the property, and they have just found new tenants who want to move in in a month's time, on the understanding that the place will be repainted and the carpets sorted. The carpets were good ones and brand new when she moved into the property, and are meant to have a ten year life according to the paperwork (that's one area where I have been good as I've kept all receipts from when I redecorated the flat and they have the address of the flat on them). However, the letting agents say that they are completely stained. The letting agents know the situation, so we won't be entering any formal agreements with the new tenants until I know that I can get the old one out.

Thanks for the suggestion of a letter first class - I think I'll send it recorded delivery! Also, if I have to go down the eviction route and it takes me a couple of months to get her out of there, does anyone know if I would be able to claim back-rent, as if so, it would have to come from the council. The current situation is that her benefits are paid to her, and then she pays the rent to me. I'm in two minds about whether to try to contact her housing officer and explain the current situation to them.

WB

townendwig

Hi WB,

Devils advocate here but I would say after six years of no spend and no voids you've probably done ok financially?

Compare it to say three tenants in six years you'd be looking at some light redecorating each time as well as any wear and tear over that time. I guess the shock here is because it is all coming at once?

The water damage sounds the only real worry as the rest would come under 'long overdue redecorating' to me from the way you describe it! How about getting a quote for tidying up the water damage and taking it from there?

Wallpaper, glow stars, crayons can all be painted over.

Regards,
Wig

Wellington_B

Her tenancy ends on Saturday as she gave me a month's notice on 7th March. She has a new property to move into, but says that she cannot pay the deposit on it until I give her deposit back. She should have this, as she did not have to pay rent for March as she was paying a month in advance, but it's not up to me to question why she isn't using this for her deposit.

The new letting agents are not acting officially until the new tenancy begins. They've been brilliant and very supportive, but I'd also appreciate advice from people who may have been in this situation and have some practical suggestions, such as the one about only communicating by post and going with the notice drawn up.

WB