Landlord refusing to return full deposit (not protected)

akira181

First off, my apologies for such a long post and a truly heartfelt Thank You to any advice given as this is causing me and my girlfriend a great deal of stress since we just purchased a flat and money is extremely tight at the moment. I just want to highlight all the big points in case it has an affect on the outcome.

I had a different thread asking about damages and learned about the tenancy deposit scheme (I'm in Scotland) and have some questions about the process and how to proceed. My LL was private at the time and did not protect my deposit of £900.

My girlfriend and I lived there for 6 years so a lot has happened and I'll try to summarise as quickly as I can. We signed a 12 month lease every November, last one was mid November 2017 for a 12 month lease starting 1 December 2017. We had a good relationship with our LL but when we informed her we will not be staying on at the end of our term, her attitude changed and became increasingly annoyed like we were causing her a great inconvenience by moving out.

In those 6 years we stayed there, we were never late on a single rent payment, took great care of the place and got on well with the neighbours. No renovation work or basic maintenance was ever done by the LL for any defects that we notified her of, unless absolutely necessary. For example:

• Some windows were difficult to close and leaked - her response: don't open the window (ignored the leaking part). Wasn't surprised since she told us not to open one of the windows the first day we moved in
• Reported growing cracks in the kitchen and hallway ceilings multiple times - LL only repaired the hallway ceiling after ~21kg of plaster came crashing down (I weighed it after I cleaned it all up). Kitchen cracks were never repaired
• the fire alarm was going off randomly at all hours of the day (most annoying when it was the middle of the night) and after multiple visits over 6 WEEKS she eventually admitted she couldn't fix it herself and called out an engineer
• told her the fridge was randomly making very loud noises when the compressor was running - she came out to have a look, it made no noise in the 2 minutes she was there, cracked a Grenfell tower joke (!) and left

Now I do hold my hands up to a few mistakes we made, such as:

• my girlfriends brother stayed with us for the final year due to his personal circumstances and we didn't inform the landlord
• No business ever operated from the flat but the address was used to register a company that ran for 2 years (dissolved Sept 2017)
• We broke and chipped some plates and glasses as accidents happen but we failed to replace a couple of glasses
• we failed to bleach the bathroom sealant often enough as it was PAINTED on and therefore got mouldy frequently due to the rough finish
• window sealant got a bit mouldy due to water ingress that we felt wasn't our responsibility as we informed her the windows leaked. We gave it a wipe to stop it growing but never bleached it so the sealant was discoloured.

So after we moved out and learned that the LL was going to make deductions, I sent her an email asking for:

1. an itemised list of the damages
2. details of which tenancy deposit scheme she used as we have no details for it and may have lost it in the move

She replied with an itemised list of charges she deducted from our deposit, including:

• light bulbs (even though I replaced all her old filament/halogen light bulbs with energy efficient LED ones that were still working and left spares in a cupboard
• Charged for new bathroom sealant materials and her personal labour even though the old sealant was completely perished after 6 years
• A "missing" door handle that fell off and was in her hand when we done the exit inventory
• Some other random stuff that she believed to be broken or missing

No mention of the toaster, kettle, microwave, and dyson vacuum cleaner we left her, which were significant upgrades from the old junk originally provided. She also ignored my question of the deposit protection scheme. I sent a follow-up email saying

I have checked all three deposit schemes in Scotland for details of my deposit and it seems you have failed to register my deposit I provided to you in 2012. This is a breach of the law and prevents us from using the arbitration service the deposit schemes provide so we can address our dispute. Therefore, can you please provide information to the contrary or return my deposit in full within 5 working days.

She replied saying she suspected my girlfriends brother was living there and she never charged him rent (a couple letters addressed to him got delivered since we left apparently), a business was run from the flat in violation of the tenancy agreement, the fridge was not cleaned (she said it was okay not to clean the fridge as she turned up 2 hours early and let herself in on day of handover), and some other nitpicky stuff. She says she is being "extremely fair" and is within her rights to retain even more of my deposit than she actually is. £500 was transferred to me from her personal bank account a few days later.

If she returned my deposit in full, I would have been more than happy to leave it at that. As she deducted money from my deposit and continues to ignore any mention of the protection scheme after I told her I know she hasn't done it and is in breach of the law, I feel like I have no choice left but to take her to a First Tier Tribunal.

I guess my questions are:

1. Am I correct in thinking it's within my rights?
2. Do I need a solicitor (who pays the fee if so?)
3. What documents do I need?
4. How do I start the process?

I have checked on the Shelter website but their information is from 2013 and still refers to the old Sheriff County Court process, so I'm guessing it's no longer relevant.

If you made it this far, thank you again and hopefully you can give us some advice!

Comms69

akira181 wrote: »

First off, my apologies for such a long post and a truly heartfelt Thank You to any advice given as this is causing me and my girlfriend a great deal of stress since we just purchased a flat and money is extremely tight at the moment. I just want to highlight all the big points in case it has an affect on the outcome.

I had a different thread asking about damages and learned about the tenancy deposit scheme (I'm in Scotland) and have some questions about the process and how to proceed. My LL was private at the time and did not protect my deposit of £900.





No mention of the toaster, kettle, microwave, and dyson vacuum cleaner we left her, which were significant upgrades from the old junk originally provided. She also ignored my question of the deposit protection scheme. I sent a follow-up email saying - She could charge you for removing these items...

She replied saying she suspected my girlfriends brother was living there and she never charged him rent (a couple letters addressed to him got delivered since we left apparently), - irrelevant. You could've had anyone you wanted living there. a business was run from the flat in violation of the tenancy agreement - irrelevant , the fridge was not cleaned (she said it was okay not to clean the fridge as she turned up 2 hours early and let herself in on day of handover) - should've told her to Foxtrot Oscar and to come back at the agreed time, and some other nitpicky stuff. She says she is being "extremely fair" and is within her rights to retain even more of my deposit than she actually is. £500 was transferred to me from her personal bank account a few days later. - ok so the issue is £400 + the non protection

If she returned my deposit in full, I would have been more than happy to leave it at that. - I wouldn't. I would sue her no matter what. As she deducted money from my deposit and continues to ignore any mention of the protection scheme after I told her I know she hasn't done it and is in breach of the law, I feel like I have no choice left but to take her to a First Tier Tribunal. - excellent.

I guess my questions are:

1. Am I correct in thinking it's within my rights? yes - 1-3 x the value of the original deposit as a penalty (£900-£2700)
2. Do I need a solicitor (who pays the fee if so?) - No, but if you want one, you pay for it.
3. What documents do I need? - Well technically you don't need any. But it would be sensible to contact the schemes and confirm that no deposit was protected in relation to that property / period.
4. How do I start the process? - Typically a letter before action (not sure if Scottish terminology is different) basically giving her a chance to pay up.

I have checked on the Shelter website but their information is from 2013 and still refers to the old Sheriff County Court process, so I'm guessing it's no longer relevant. - sorry cant help there - Artful or Pixie will no doubt be along shortly

If you made it this far, thank you again and hopefully you can give us some advice!

Edited most of the irrelevant info out

Pixie5740

That's odd because the Shelter Scotland link I provided on your [URL="https://forums.moneysavingexpert.com/discussion/5932450thread[/URL] directs you to the First-tier Tribunal for Scotland (Housing and Property Chamber) website which has guides on how to make an application.

https://www.housingandpropertychamber.scot/home

You need to get your skates on though because you've only got 3 months from the end of your tenancy to do it.

akira181

Comms69 wrote: »

Edited most of the irrelevant info out

Thanks for the edit and comments! I was thinking it was irrelevant but decided to include all the big points as I'm confused by this process.

Am I right in saying that a letter before action is basically a letter stating that she has broken the law, details the sanctions, and where I ask for the remainder of my deposit to be returned or face legal action and risk being sued for up to 3x the amount plus any court fees?

If she pays up, is the matter closed?

Pixie5740 wrote: »

That's odd because the Shelter Scotland link I provided on your [URL="https://forums.moneysavingexpert.com/discussion/5932450thread[/URL] directs you to the First-tier Tribunal for Scotland (Housing and Property Chamber) website which has guides on how to make an application.

https://www.housingandpropertychamber.scot/home

You need to get your skates on though because you've only got 3 months from the end of your tenancy to do it.

Thanks for helping again, much appreciated! I wasn't entirely clear about the Shelter bit and I also just noticed I completely misread the page. I thought the letter templates Shelter provided could be used during your tenancy and after (that second letter template still refers to the SCC).

I went to the tribunal page too but couldn't find much relevant infomation. I called them today and they pointed me in the right direction on their website so I'm planning on reading through that tonight.

My tenancy ended 3 weeks ago, so I still a good part of the 3 months remaining but I am aware it's Christmas and things take longer than expected so I will make this a priority

Comms69

A letter before action should be straight forward and to the point.


I am claiming £x in relation to Y, because of Z.


So in your case £3,100, in relation to the tenancy at <whatever address> because deposit not fully returned and penalty sought for non protection.


3 months is to start the process. So as long as you apply by then youre ok.

akira181

So the letter is just to inform her that I am proceeding with the first tier tribunal and nothing else?

I'm guessing if she's smart, she'd make a counter offer to settle the matter cheaper but since she's refused to acknowledge the tenancy deposit scheme at all, she'll probably just complain about more fictitious damages she never charged for.

Wish I never left the toaster now, one of the slots on mine just died.

baldelectrician

The FTT is funded by the landlord through their fees so it will cost you nothing
It is straight forward as well

I would write to the landlord and point out that she failed to provide you an electrical certificate, smoke detectors, and EPC and carbon monoxide detectors

You will apply to the tribunal and can do it online- you can send the documents in by email.

Sibz

I went through a solicitor regarding unprotected deposit when a dodgy LL tried to with-hold some of my deposit unjustly - leading me to look into my options.

I didn't want the hassle of all the paperwork etc. Obviously I'd to pay the lawyer a cut but I still came out with a considerable amount more than just the deposit (also in Scotland).

Pixie5740

The FTT has been set up so that tenants don't need to use a solicitor.

akira181

Comms69 wrote: »

A letter before action should be straight forward and to the point.

I am claiming £x in relation to Y, because of Z.

So in your case £3,100, in relation to the tenancy at <whatever address> because deposit not fully returned and penalty sought for non protection.

I found a letter before action template for the English process and modified it to suit Scottish law. Is the following suitable as a letter before action?

If everything is OK, I will post this recorded delivery via snail mail and not email.

Thanks again in advance

Dear [LL Name],

Letter before action: Failure to protect my tenancy deposit in accordance with The Tenancy Deposit Schemes (Scotland) Regulations 2011

I am the former assured shorthold tenant of [address of property] which you rented to me on [insert date].

I am writing concerning the deposit of [add amount] I paid to you on [add date] as a security against my obligations under the terms of my tenancy agreement. I attach a copy of my bank statement detailing this transaction as proof.

The rent, bills and council tax were all fully paid to the end of my tenancy and I feel that the property was left in good order. However, you disputed the latter and have deducted what you saw fit from my deposit.

I wished for this matter to be mediated by the dispute resolution process provided by the tenancy deposit schemes, however, repeated requests for you to provide the information of the scheme were ignored. Upon checking myself, I discovered that you failed to protect my deposit for the entirety of my rental period. I have attached proof from the 3 government-backed schemes in Scotland.

I wrote to you on [add date] to request that you provide information to the contrary of this or return my deposit in full as you were in direct violation of the law; to which you did neither and returned [add amount] of my original [add amount] on [add date] from your personal bank account.

Regulation 3 of The Tenancy Deposit Schemes (Scotland) Regulations 2011 require that you, as a landlord, protect my deposit with a government-backed scheme within 30 days of the start of the tenancy. You were also required to provide me with details of the scheme you’ve used along with certain other information within 30 days of payment into the scheme as per Regulation 42.

Regulation 10 of The Tenancy Deposit Schemes (Scotland) Regulations 2011 provides that if the court is satisfied that the landlord did not comply with any duty in Regulation 3 of the law relating to tenancy deposit protection, it must order the landlord to pay the tenant a penalty of up to but not exceeding three times the amount of the original tenancy deposit.

Your continued avoidance in addressing my questions regarding the deposit protection scheme, and the proof provided by the schemes themselves, confirm that my deposit was unprotected in your personal bank account for over 2,400 days. Therefore you, as a landlord, undisputedly failed in your duty to protect my deposit as per Regulation 3.


To settle this matter, I expect the remainder of my deposit, [add amount], be returned to me as well as three times the original deposit [add amount] as penalty, for a total of [add amount].

If I do not hear from you or have received payment in full to the account below, by [add date allowing at least 14 days from receipt of your letter], I will issue court proceedings in the First Tier Tribunal for Scotland without further notice.

This will include my right to claim for interest on the unprotected deposit and an order to cover any and all court fees incurred. I will be relying on court rules for pre-action conduct that say you may have to pay more in costs if you ignore this letter.

Yours sincerely


[Add your name]

Contact telephone number: [Add your phone number]

Account details: [Add account details]

Comms69

Dear [LL Name],

Letter before action: Failure to protect my tenancy deposit in accordance with The Tenancy Deposit Schemes (Scotland) Regulations 2011

I am the former assured shorthold tenant of [address of property] which you rented to me on [insert date].

I am writing concerning the deposit of [add amount] I paid to you on [add date] as a security against my obligations under the terms of my tenancy agreement. I attach a copy of my bank statement detailing this transaction as proof. - I wouldn't include a copy of anything.

The rent, bills and council tax were all fully paid to the end of my tenancy and- I'd delete this. It's not relevant I feel that the property was left in good order. However, you disputed the latter and have deducted what you saw fit from my deposit.

I wished for this matter to be mediated by the dispute resolution process provided by the tenancy deposit schemes, however, repeated requests for you to provide the information of the scheme were ignored. Upon checking myself, I discovered that you failed to protect my deposit for the entirety of my rental period. I have attached proof from the 3 government-backed schemes in Scotland. - again I wouldn't include anything

I wrote to you on [add date] to request that you provide information to the contrary of this or return my deposit in full as you were in direct violation of the law; to which you did neither and returned [add amount] of my original [add amount] on [add date] from your personal bank account.

Regulation 3 of The Tenancy Deposit Schemes (Scotland) Regulations 2011 require that you, as a landlord, protect my deposit with a government-backed scheme within 30 days of the start of the tenancy. You were also required to provide me with details of the scheme you’ve used along with certain other information within 30 days of payment into the scheme as per Regulation 42.

Regulation 10 of The Tenancy Deposit Schemes (Scotland) Regulations 2011 provides that if the court is satisfied that the landlord did not comply with any duty in Regulation 3 of the law relating to tenancy deposit protection, it must order the landlord to pay the tenant a penalty of up to but not exceeding three times the amount of the original tenancy deposit.

Your continued avoidance in addressing my questions regarding the deposit protection scheme, and the proof provided by the schemes themselves, confirm that my deposit was unprotected in your personal bank account for over 2,400 days. Therefore you, as a landlord, undisputedly failed in your duty to protect my deposit as per Regulation 3.


To settle this matter, I expect the remainder of my deposit, [add amount], be returned to me as well as three times the original deposit [add amount] as penalty, for a total of [add amount].

If I do not hear from you or have received payment in full to the account below, by [add date allowing at least 14 days from receipt of your letter], I will issue court proceedings in the First Tier Tribunal for Scotland without further notice.

This will include my right to claim for interest on the unprotected deposit and an order to cover any and all court fees incurred. I will be relying on court rules for pre-action conduct that say you may have to pay more in costs if you ignore this letter.

Yours sincerely


[Add your name]

Contact telephone number: [Add your phone number]

Account details: [Add account details]



Snd first class, twice if you want, recorded mail can be rejected