Unprotected Deposit Tribunal Help

akira181

I live in Scotland and I'm taking my previous landlord to the FTT for failure to protect my deposit for 6 years, mainly because the LL became quite unfriendly after we notified her we were moving out and charged us for items we believe to be fictitious. She also replaced all the "damages" with new items without factoring in 10+ years of wear and tear.

Anyway, the tribunal paperwork has been processed and a date set for next week. The LL has responded with the below 3 points and I'm wondering if I should reply or if I should just wait till the tribunal?

1) she didn't know she was supposed to protect the deposit and if we had asked her to, she would have rectified the issue immediately. (So she's blaming us for her failure to recognise her duties as a LL)

2) A list of damages and other "damages" that she didn't charge for because she was being fair. (when we disputed the charges, she basically said no and deducted whatever she wanted)

3) Breach of tenancy agreement as a business was registered at the address (but never traded from the flat) and she believes my girlfriends's brother was living with us because it was his business and some mail addressed to him was delivered. (we already told her multiple times that no business ever traded from the flat, it was only for correspondence only as he was between flats and needed a stable local address)

Points 2 and 3 are irrelevant to the tribunal and she admits her failure to protect it in point 1.

Is it worth replying to the case worker with evidence showing the contrary to her points (emails, addressed bills showing where her brother was living, etc) or should I just wait till the tribunal?

G_M

akira181 wrote: »

I....I'm wondering if I should reply or if I should just wait till the tribunal?

1) she didn't know she was supposed to protect the deposit and if we had asked her to, she would have rectified the issue immediately. (So she's blaming us for her failure to recognise her duties as a LL)
Ignore. If anything, the tribunal will come down harder on her for
1) admitting to ignorance of a key piece of tenancy leglislation and
2) trying to blame the tenant

2) A list of damages and other "damages" that she didn't charge for because she was being fair. (when we disputed the charges, she basically said no and deducted whatever she wanted)
The tribunal is likely to disregard this.

As well as claiming the penalty for non-protection, are you claiming your deposit back?

Since the LL has listed some items for which she is making deductions, are you contesting these deductions? Have you submitted evidence?

3) Breach of tenancy agreement as a business was registered at the address (but never traded from the flat) and she believes my girlfriends's brother was living with us because it was his business and some mail addressed to him was delivered. (we already told her multiple times that no business ever traded from the flat, it was only for correspondence only as he was between flats and needed a stable local address)
The tribunal will not be interested in this. Ignore.

..... or should I just wait till the tribunal?

This............

akira181

I'm not claiming the deposit back as I stupidly didn't take any pictures before I left.

I have emails that argue some of the points and some dating a few years back where we asked her to remove some of the really old furniture and utensils, for which she tried to claim were "missing" when we moved out. She conceded but a few items are still on the list of "damages".

Also emails saying thanks for leaving a flat clean and sorry for turning up 2 hours earlier than agreed for handover and letting herself in. In her response to the tribunal, she's also complaining about how the flat was dirty and she didn't bill for her time cleaning because "she was being fair".

And just other emails telling her repairs to the flat were needed but never carried out, like cracks were forming in ceilings. Also an email 3 months later saying half the ceiling has fallen down (21kg of rubble I had to clear up).

these were not submitted as part of the tribunal application though

G_M

OK.

* So you are claiming the penalty. Clearly you will win - it's just a matter of how much the tribunal awards you. I suspect the LL's attitude (blaming you!) will increase your award.


* you are not claiming back your deposit (for whatever reason!) so you do not need to respond to the LL's reasons for deductions. The deposit it seems is not in dispute.


unless
* the LL is counter-claiming against you for the difference in value between your deposit, and the value of the damage/dirt etc that she claims you are responsible for. Has she entered a counter-claim? If so, for how much?

gt94sss2

akira181 wrote: »

I'm not claiming the deposit back as I stupidly didn't take any pictures before I left.

I'm not familiar with the situation in Scotland but isn't it for the landlord to justify any deductions to the deposit - ideally with an inventory check in and out report - not for you to do so?

G_M

gt94sss2 wrote: »

I'm not familiar with the situation in Scotland but isn't it for the landlord to justify any deductions to the deposit - ideally with an inventory check in and out report - not for you to do so?

Like you, I'm unfamiliar with the Scottish system.

But where a deposit is unprotected, then by definition there is no scheme arbitration process to follow.

Thus, if the tenant/OP wants their deposit back. he'll have to make a claim for it. For whatever reason, the OP has decided not to, so the tribunal will not get involved (unless Scotland is different).

If the OP had claimed back his deposit (as well as the penalty for non protection) then yes, the LL would have to justify his deductions

akira181

So the tribunal was today (my girlfriend attended as I couldn't get out of work) and basically my GF said we were denied our rights to the arbitration service due to the LL's failure to protect the deposit during our 6 years there and the LL said she didn't know about the scheme and there were additional "damages" that she did not charge for. I can provide more details once I get home from work.

The tribunal said we should try and settle it ourselves and gave us a new tribunal date 6 weeks from now if we couldn't settle, whereby the LL will need to bring in all invoices and proof of damages and charges.

The LL spoke to my GF and basically said "We'll offer £200 to settle otherwise we go to the tribunal in 6 weeks and the penalty gets paid to the tribunal so you'll get nothing". My GF replied saying she needs time to think about it, the LL replied "it's now or never", to which my GF said tribunal it is, then the LL back tracked and "allowed us time to think about it".

We already gave the LL 2 chances to return the deposit in full or go to a tribunal when we moved out and the LL ignored it. So my question is why is the LL getting a second chance at disputing damages after she deducted what she saw fit and why is the tribunal letting her off with the penalty for non protection?

nyermen

"We'll offer £200 to settle otherwise we go to a tribunal and the fine gets paid to the tribunal so we'll get nothing". My GF replied saying she needs time to think about it, the LL replied "it's now or never", to which my GF said tribunal it is, then the LL back tracked and "allowed us time to think about it".

I'll let G_M rip your landlords argument apart again (theyll do it so much better than me!) . Just one question, do you have any of this in writing? I'm pretty sure the tribunal will look very unfavourably on this...

akira181

nyermen wrote: »

I'll let G_M rip your landlords argument apart again (theyll do it so much better than me!) . Just one question, do you have any of this in writing? I'm pretty sure the tribunal will look very unfavourably on this...

This exchange was done verbally outside the tribunal, so nothing in writing unfortunately.

Apparently it's something to do with Section 22, where the LL is allowed to submit any relevant documents and witnesses 7 days before the tribunal and this never happened, I think they were late in sending out the documents saying when the appointed tribunal date was.

My GF said to the tribunal that she felt we were past the point of negotiating the deposit and we were here for the penalty of the unprotected deposit. But they said this was a case discussion and set a new tribunal date to hear all the evidence.

What should have been straightforward is now getting quite convoluted. It seems the tribunal really want us to settle this ourselves instead of making a decision. And the LL is still refusing to admit she wronged us even though the tribunal / case discussion / whatever that was told the LL the deposit should have been protected.

I don't think we're going to be able to settle with the LL privately or prove to the tribunal that we didn't damage all the things the LL claims or prove that none of the furniture was new when we moved in. What I thought was a clear case in my favour doesn't seem to be any more.

nyermen

prove to the tribunal that we didn't damage all the things the LL claims or prove that none of the furniture was new when we moved in.

As I understand in England/Wales at least, the landlord will need a signed independent check-in report (not just one sent to you afterwards) as well as a proven checkout that indicates subsequent damage etc.
They can't claim for betterment (eg. new for old) and they can't claim for expected aging (eg. standard carpet wear over time - its up to them to factor that into the rental costs).
I'd maybe write formally (or email) to restate intention to negotiate - try and get a written response back along the lines of the above. Then you'll have proof for the tribunal.

Foootnote - Sorry I don't know the scottish rules. In england, the law states in relation to an unprotected deposit something like that the court will order a penalty of between one and three times the value of the deposit. It's not discretionary, its a minimum of 1x (on top of return of the deposit, subject to deductions). The size depends on how serious the breech is (1 day late vs never done for example). So I'd be going to small claims court if in your position in england for example.

nyermen

I should add that the tribunal is there for these things. They'll want you to sort it out yourselves (better for everyone), but if you say we've proposed X and the landlord/lady is saying no i want Y, and we think thats unreasonable, then its up to the tribunal to make a decision. Keep things fair and reasonable, say it wasn't that way when you moved in etc, and its up to the landlord/lady to prove otherwise.