Deposit not placed in proper scheme

clowe74

I have had a lot of information regarding this from these pages but have hit a new hurdle.

Ex landlord didnt place our deposit in proper scheme so have asked them for the details which never appeared but I was presented with a letter off them saying not to contact them and to go via their solicitor. There was also some photots they had taken of inside the house. My daughter had spilt some horrible putty stuff on the carpet and it had stained and really should of been replaced but I was fully prepared to have the money for this carpet taken from the bond. There was photos of the carpet, photos of a light that was broken when we moved in which he is insinuating I broke (no inventory) and also of a phone number that was written on a wall again all there when we moved in but its their word against mine.

So I downloaded the letter off the shelter website to say I was prepared to take this to court.
I get a letter back off their solicitor saying they were more than happy to go to court and would put in a counter claim for damages.
This has me worried as it is purely their word against mine and if it went in their favour I would not be able to pay their £800 (god knows how they came up with this figure) they are saying I caused in damages

G_M

Without a check-in inventory, the landlord cannot prove you caused the damage. You simply claim it was like that when you moved in and the onus is on the LL to prove you wrong.

You sue in the small claims court for
a) your deposit AND
b) 3 times the deposit for non registration.

Solicitors fees cannot be claimed in a SCC so the LL will have to pay his solicitor win or lose. You will not.

clowe74

I dont understand why a solicitor is giving them the advice to go to court if they are in the wrong though

Enfieldian

Not every solicitor is an expert in every aspect of the law.

I had an issue with a friend's LL a while back which was alsmost the same, no scheme used and no return of deposit.

I drafted a letter for them and the LL's first response was "I have spoken to my solicitor and he says that if we go to court your friend will lose"

It turned out that the solicitor was a relative of the LL and didn't normally deal with property, LLs or tenants.

I suggested that the LL speak to his solicitor again.

My friend got their deposit back a couple of days later.

rpc

clowe74 wrote: »

I dont understand why a solicitor is giving them the advice to go to court if they are in the wrong though

The solicitor may not have advised them to go to court, but they are hardly likely to tell the other party that! The solicitor is telling you what their client has told them to say.

Take em to court for the deposit and penalty.

RabbitMad

G_M wrote: »

Without a check-in inventory, the landlord cannot prove you caused the damage. You simply claim it was like that when you moved in and the onus is on the LL to prove you wrong.

You sue in the small claims court for
a) your deposit AND
b) 3 times the deposit for non registration.

Solicitors fees cannot be claimed in a SCC so the LL will have to pay his solicitor win or lose. You will not.

2 Myths here:

MYTH 1. "Without a check-in inventory, the landlord cannot prove you caused the damage. You simply claim it was like that when you moved in and the onus is on the LL to prove you wrong."

THIS IS WRONG

In court it is who the judge believes is more likely to be telling the truth - on the balance of probabilities. The LL could for instance show that they returned the full deposit to the previous tenant - that will add weight to their argument that you caused this damage and if the OP said they didn't then it would look more like they are being untruthful.

MYTH 2: Solicitors fees cannot be claimed in a SCC

THIS IS WRONG

They can be in some circumstances, however deposit claims for the penalty should not be allocated to the small claims track.



MY Advice to the OP is to make a without prejudice offer to settle their case for deposit non compliance for a full return off the deposit.

If they refuse find a solicitor that is well versed in housing law that will take this claim on - I assume your deposit is a reasonable amount.

G_M

clowe74 wrote: »

I dont understand why a solicitor is giving them the advice to go to court if they are in the wrong though

As suggested, the solicitor may be following his client's instructions ("Write and tell the tenant I will take him to court").

Or the solicitor may not be a landlord/tenant specialist. Bear in mind the rules on deposit protection changed only this year (Localism Act) so the solicitor would have to be up to date.

The solicitor may be happy to advise his client to bluff ("I'll send a letter and your tenant is likely to back down")

N79

G_M wrote: »

Without a check-in inventory, the landlord cannot prove you caused the damage. You simply claim it was like that when you moved in and the onus is on the LL to prove you wrong.

You sue in the small claims court for
a) your deposit AND
b) 3 times the deposit for non registration.

Solicitors fees cannot be claimed in a SCC so the LL will have to pay his solicitor win or lose. You will not.

To G_M a claim for the deposit non-registration is not a small claims track case. It will be fast track case which means that solicitor's fees can be claimed (by whichever party wins).

Also, the OP can not claim that the carpet damage already existed at the start of the tenancy as it wasn't. To claim as you propose would be perjury, which, of course, can lead to gaol time. Indeed, in my view, your post is dangerously close to conspiracy to pervert the course of justice - I guess you are having a bad day!

To the OP - your deposit should have been protected so you should not be put off making a claim as you have good grounds to expect to win and should get the return of your deposit plus 1 to 3 times the value of the deposit (at the courts discretion). However, as with all court cases, there is a risk of losing however strong you believe your claim.

If the LL counterclaims then you will need to concede a reasonable amount for the carpet while rejecting claims for other items of pre existing damage. The onus will be on the LL to prove the damage was caused by you and in the absence of an agreed inventory this will be difficult but not impossible for the LL to do.

For the carpet, the LL is entitled to either the costs of cleaning or, if the carpet must be replaced, to a proportion of the replacement costs taking into account the age of the carpet at the end of the tenancy. EG if you assume a carpet would last ten years and was 5 years old at the end of the tenancy then you would need to pay 50% of the replacement costs based on at least one estimate provided by your LL. As a rough guide, cheap carpet (Nylon / Polyester roll job) in high wear areas lasts around 5 years in rented properties while a good 80/20 mix will last around 10 years in high tread areas (and a living room is a high tread area).

G_M

Thanks for this:

RabbitMad wrote: »

2 Myths here:

MYTH 1. "Without a check-in inventory, the landlord cannot prove you caused the damage. You simply claim it was like that when you moved in and the onus is on the LL to prove you wrong."

THIS IS WRONG

In court it is who the judge believes is more likely to be telling the truth - on the balance of probabilities. The LL could for instance show that they returned the full deposit to the previous tenant - that will add weight to their argument that you caused this damage and if the OP said they didn't then it would look more like they are being untruthful.
This is all true but the inventory is the most compelling evidence the judge will look at/look for. Without it, the LL has to show the property's condition in some other way. A receipt proving professional cleaning dated at the time would certainly be significant for example. I doubt return of the previous tenant's deposit would be enough without also showing the check-in inventory of THAT tenant - the LLmay have returned the previous deposit despite the property being a mess if it was a mess when that tenant moved in....

Additionally, in weighing up the evidence in this case the judge is likely to start out with a poor view of the LL due to the non-registration of the deposit. AND the lack of inventory. So the LL will have to work hard to convince him the deductions are justified.
MYTH 2: Solicitors fees cannot be claimed in a SCC

THIS IS WRONG

They can be in some circumstances, VERY rare
however deposit claims for the penalty should not be allocated to the small claims track.
This I was unaware of - thanks for the correction

MY Advice to the OP is to make a without prejudice offer to settle their case for deposit non compliance for a full return off the deposit.

If they refuse find a solicitor that is well versed in housing law that will take this claim on - I assume your deposit is a reasonable amount.

Despite the above I would still contest this.

Fire_Fox

clowe74 wrote: »

I have had a lot of information regarding this from these pages but have hit a new hurdle.

Ex landlord didnt place our deposit in proper scheme so have asked them for the details which never appeared but I was presented with a letter off them saying not to contact them and to go via their solicitor. There was also some photots they had taken of inside the house. My daughter had spilt some horrible putty stuff on the carpet and it had stained and really should of been replaced but I was fully prepared to have the money for this carpet taken from the bond. There was photos of the carpet, photos of a light that was broken when we moved in which he is insinuating I broke (no inventory) and also of a phone number that was written on a wall again all there when we moved in but its their word against mine.

So I downloaded the letter off the shelter website to say I was prepared to take this to court.
I get a letter back off their solicitor saying they were more than happy to go to court and would put in a counter claim for damages.
This has me worried as it is purely their word against mine and if it went in their favour I would not be able to pay their £800 (god knows how they came up with this figure) they are saying I caused in damages

Which Shelter letter did you use, the short or longer version with evidence? http://webcache.googleusercontent.com/search?q=cache:kROXpXTlONIJ:www.shelter.org.uk/__data/assets/rtf_file/0010/437887/D._Tenancy_deposits_-_Letter_before_action_after_a_tenancy_has_ended.rtf+shelter+letter+before+action+deposit&cd=4&hl=en&ct=clnk&gl=uk

It is your word against theirs, but the onus is on the landlord to prove the damage, not you to prove you did not. Have you received a breakdown of the charges claimed to date? Have you offered/ paid the cost of the carpet minus wear and tear?

The landlord has broken the law, that is hardly likely to go in his favour. And now they are trying to intimidate you by only going through their solicitor and threatening a counter claim. Also doesn't exactly cover them in glory and I would certainly be mentioning that in court.

It's costing them money every time their solicitor writes to you, if you were feeling awkward you could ask a question, then when you get a reply you think of another question ..... :rotfl: If you were feeling really silly you could send them copies of the itemised mobile telephone bills for every person in the household covering the entire period of the tenancy, inviting them to find the phone number that was scrawled on the wall. That's hours of expensive work only to find out there is no evidence you ever called that number. :rotfl:

clowe74

Thankyou for replies.

We were their first tenants and TBH I dont think they realised the troubles LL have to go through eg deposits and also in the 19 months we lived there no gas checks were ever done.

I hae never had any "dealings" with them since I asked if everything was ok with the house as hadnt heard from them and was then told they had to spend £800 on decorating, the next letter came from the solicitor.
They probably would of had to give the house a lick of paint to cover damp patches, I scrubbed them (after moving all the furniture out the walls were black behind drawers and cupboards etc) but it was never back to perfect. I was told though that damp wasnt a tenant issue but maybe I have that wrong.
As for the carpet with hte marks, I really should of just replaced it but would of handed money back for that out of the deposit.
Im so worried by the whole case and its stressing me out so much