Landlord withholding deposit - No longer in DPS

MrTito9

Hi all, was hoping if someone good give some advice here.

I started renting a flat in London over 5 years ago and have paid my rent on time every time with no problems from my side. The property I rented is one of many owned by a landlord in a holding company it seems. On check-in the employee in charge never did a proper check-in where they went through an inventory which I could then then sign off on. The place was in a proper nasty way when we moved in (hadn't been cleaned with various broken items). I complained and repeatedly asked for an inventory form but never got this. I also had my deposit covered by the DPS.

Fast forwards 5 years and I have now moved on and have vacated the property. A new employee did the checkout and then listed all kinds of stuff (mostly small insignificant wear and tear) but, funnily enough a lot of them existed before we moved in (that we even highlighted!). Worse still their version of the inventory schedule provided photos on 'check-in' when the flat was in obviously a much newer state (probably a few tenants before me). I also find out that my deposit was released from the DPS last year as apparently it was no longer a requirement once the tenancy moved from AST to a periodic tenancy.

So, I have 2 questions:
1) Does the fact that I never saw an inventory schedule on check-in let alone sign off on one mean that the landlord can not say I am liable for anything beyond fair wear and tear? Apart from the bear faced dishonesty from their side the burden of proof should be on them.

2) Are they breaking the law now that my deposit is now no covered in any DPS, or as the tenancy moved to a periodic tenancy is it no longer a legal requirement?

What would you recommend as the best recourse now? I'm happy escalate this all the way given the way they have done this.

grumiofoundation

1) Yes - the onus is on the landlord to prove the condition at check-in. If they can't* won't be able to claim for anything. Will be much harder without inventory. Plus the fact you had highlighted the issues is evidence of the condition at check-in. (Do you have any photos of condition when you moved in)

2) If landlord does not protect your deposit you can claim for compensation of 1-3 times the value of the deposit. (This is separate from the deposit which is legally your money and also needs to be returned)  Still needed to be protected during periodic tenancy.  To check sounds like you have proof deposit was not protected for entirety of tenancy? 


https://england.shelter.org.uk/housing_advice/tenancy_deposits/how_to_make_a_tenancy_deposit_compensation_claim

I guess the 'best' resource would depend on what you want and how much effort you are willing to put in.


*Edited - see comment below

anselld

(1) The burden of proof is indeed on the Landlord but that does not necessarily fail just because you didn't see or sign an inventory.  It does weaken their case though.

(2) Yes it is illegal not to protect the deposit throughout the tenancy.  It is complete nonsense to say it stops being a requirement after the fixed term.  You may therefore sue the Landlord for return of the deposit plus a penalty of 1-3x the deposit.  Even a firm threat to do so may get your deposit returned.

Which DPS scheme was it btw?  In a custodial scheme it is impossible to unprotect the deposit without your agreement or some kind of fraud.  It seems a bit easier to do with insured schemes.

macman

Who told you that protection was not required under a periodic tenancy? The agent/employee? It's absurd.
Do you have confirmation from the DPS scheme that your deposit was ever protected at all?

nyermen

I seem to recall that the legislation says something along the lines of the tenant "will be awarded between 1 and 3 times the deposit"?  ie. Whether or not to award is not even discretionary on the magistrate/judge, only the amount.

The inventory they've produced, is it easy to prove it wasn't at the beginning of your tenancy? (dates on photos etc?).  They can't just pull up any old inventory, otherwise every LL could play the game of photos of their just refurbished property when it came to checkout.

MrTito9

grumiofoundation said:

1) Yes - the onus is on the landlord to prove the condition at check-in. If they can't* won't be able to claim for anything. Will be much harder without inventory. Plus the fact you had highlighted the issues is evidence of the condition at check-in. (Do you have any photos of condition when you moved in)

2) If landlord does not protect your deposit you can claim for compensation of 1-3 times the value of the deposit. (This is separate from the deposit which is legally your money and also needs to be returned)  Still needed to be protected during periodic tenancy.  To check sounds like you have proof deposit was not protected for entirety of tenancy? 


.....

I guess the 'best' resource would depend on what you want and how much effort you are willing to put in.


*Edited - see comment below

1) Yes, I have some photos attached to an email I sent them on the day I moved in showing some already existing damage and highlighting it was unacceptable to take on a flat which had not been cleaned at all.

2) It was in the MYDEPOSITS scheme, I even got a certificate every year and then 6 months ago I got an 'auto-unprotect' email from the scheme (unfortunately I didn't see this in my inbox at the time), 

'End of Tenancy

At the end of the fixed term tenancy agreement it is the responsibility of your landlord/agent to notify my|deposits of the tenancy status.

We have not been notified by your landlord/agent that you will be remaining in the property therefore your deposit is no longer protected with my|deposits'

anselld said:

(1) The burden of proof is indeed on the Landlord but that does not necessarily fail just because you didn't see or sign an inventory.  It does weaken their case though.

(2) Yes it is illegal not to protect the deposit throughout the tenancy.  It is complete nonsense to say it stops being a requirement after the fixed term.  You may therefore sue the Landlord for return of the deposit plus a penalty of 1-3x the deposit.  Even a firm threat to do so may get your deposit returned.

Which DPS scheme was it btw?  In a custodial scheme it is impossible to unprotect the deposit without your agreement or some kind of fraud.  It seems a bit easier to do with insured schemes.

It was with my|Deposits, so probably not a custodial scheme as I I never agreed to anything.

macman said:

Who told you that protection was not required under a periodic tenancy? The agent/employee? It's absurd.
Do you have confirmation from the DPS scheme that your deposit was ever protected at all?

The landlords minions (ie employee), when I asked why it wasn't currently in the DPS. I have confirmation that the deposit was previously protected.

 Yes,nyermen said:

I seem to recall that the legislation says something along the lines of the tenant "will be awarded between 1 and 3 times the deposit"?  ie. Whether or not to award is not even discretionary on the magistrate/judge, only the amount.

The inventory they've produced, is it easy to prove it wasn't at the beginning of your tenancy? (dates on photos etc?).  They can't just pull up any old inventory, otherwise every LL could play the game of photos of their just refurbished property when it came to checkout.

Yes it is, by the fortune I took photos and emailed them when I checked in highlighting damage. Even the photo of  the oven they sent as a 'before' was a newer one. It looks like they are playing this unscrupulous game.

I am now very willing to take this all the way and see if I can get this compensation based on the principle of them trying their best to cheat. 

 ... now I better find a 'no win no fee' firm who deals with this!

Thanks everyone, and any more advice is greatly appreciated!

 

grumiofoundation

MrTito9 said:

grumiofoundation said:

1) Yes - the onus is on the landlord to prove the condition at check-in. If they can't* won't be able to claim for anything. Will be much harder without inventory. Plus the fact you had highlighted the issues is evidence of the condition at check-in. (Do you have any photos of condition when you moved in)

2) If landlord does not protect your deposit you can claim for compensation of 1-3 times the value of the deposit. (This is separate from the deposit which is legally your money and also needs to be returned)  Still needed to be protected during periodic tenancy.  To check sounds like you have proof deposit was not protected for entirety of tenancy? 


.....

I guess the 'best' resource would depend on what you want and how much effort you are willing to put in.


*Edited - see comment below

1) Yes, I have some photos attached to an email I sent them on the day I moved in showing some already existing damage and highlighting it was unacceptable to take on a flat which had not been cleaned at all.

2) It was in the MYDEPOSITS scheme, I even got a certificate every year and then 6 months ago I got an 'auto-unprotect' email from the scheme (unfortunately I didn't see this in my inbox at the time), 

'End of Tenancy

At the end of the fixed term tenancy agreement it is the responsibility of your landlord/agent to notify my|deposits of the tenancy status.

We have not been notified by your landlord/agent that you will be remaining in the property therefore your deposit is no longer protected with my|deposits'

anselld said:

(1) The burden of proof is indeed on the Landlord but that does not necessarily fail just because you didn't see or sign an inventory.  It does weaken their case though.

(2) Yes it is illegal not to protect the deposit throughout the tenancy.  It is complete nonsense to say it stops being a requirement after the fixed term.  You may therefore sue the Landlord for return of the deposit plus a penalty of 1-3x the deposit.  Even a firm threat to do so may get your deposit returned.

Which DPS scheme was it btw?  In a custodial scheme it is impossible to unprotect the deposit without your agreement or some kind of fraud.  It seems a bit easier to do with insured schemes.

It was with my|Deposits, so probably not a custodial scheme as I I never agreed to anything.

macman said:

Who told you that protection was not required under a periodic tenancy? The agent/employee? It's absurd.
Do you have confirmation from the DPS scheme that your deposit was ever protected at all?

The landlords minions (ie employee), when I asked why it wasn't currently in the DPS. I have confirmation that the deposit was previously protected.

 Yes,nyermen said:

I seem to recall that the legislation says something along the lines of the tenant "will be awarded between 1 and 3 times the deposit"?  ie. Whether or not to award is not even discretionary on the magistrate/judge, only the amount.

The inventory they've produced, is it easy to prove it wasn't at the beginning of your tenancy? (dates on photos etc?).  They can't just pull up any old inventory, otherwise every LL could play the game of photos of their just refurbished property when it came to checkout.

Yes it is, by the fortune I took photos and emailed them when I checked in highlighting damage. Even the photo of  the oven they sent as a 'before' was a newer one. It looks like they are playing this unscrupulous game.

I am now very willing to take this all the way and see if I can get this compensation based on the principle of them trying their best to cheat. 

 ... now I better find a 'no win no fee' firm who deals with this!

Thanks everyone, and any more advice is greatly appreciated!

 

You don’t need a solicitor - see the link I posted earlier from Shelter. 

The first step would be to send a letter before action (shelter has a template) to negotiate.

In letter you say what you want to not take legal action - what do you want? 

TripleH

Excellent.

1. If the deposit was not protected for the length of your tenancy that is good news. Contact MyDeposits and ask for your deposit to be released. Keep any correspondence saying it wasn't protected at the end of your tenancy.

2. Ask the agent where the deposit was protected at the end of your tenancy, keep the email saying it wasn't (if you have an email saying this don't bother with this step).

3. Ask for your full deposit to be returned by close of business say next Friday (I'd give minimum of 5 working days) otherwise you'll pursue it through the courts for being unprotected (there is better wording to use) and that you have been denied the right to arbitration.

You would argue that you never received the checkin report they used so it should not be used by them. That you sent an email with evidence of the state of property is great. If you haveca response to that then that shows the agent has seen it. But don't get carried away. You need to ask for your deposit back in full first.

TripleH

" now I better find a 'no win no fee' firm who deals with this!" NO DO NOT DO THIS. IT IS A TERRIBLE IDEA!

You can fill in a form online to claim via the courts. I understand it is straightforward and plenty on here will help you with it.

Your claim will be small and you may find yourself worse off using one. People here will help you put forward a case.

It's quite an informal process and when your evidence is presented the other side may settle before court if they know you're no mug.

Apologises for shouting