Landlord trying to keep deposit

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  • cherrie
    started a topic Landlord trying to keep deposit

    Landlord trying to keep deposit

    My former landlord and letting agent are trying to withheld my deposit. (England 12month AST).
    They are trying to claim I caused damage to the carpets and walls but this damage actually belongs to the second flat in the same building and was caused by the previous tenant of that flat who left the flat 4 months ago. I took photos (have exif data) before I left the property that shows it was in a good, clean condition is this enough? The flats layout and decor are identical.
    I gave them 6 weeks written notice and 5 days before the end of the tenancy I handed the keys into the letting agents office and got a receipt. Now they are claiming I never gave notice and want another months rent. Was I naive in sending the notice by standard post?

    There is also some discrepancy with the protection of the deposit.
    Deposit was protected on time.
    Prescribed Information was given at the time I signed the tenancy agreement.
    I didn’t receive the DPS terms and conditions or any leaflet.
    I didn’t receive any proof or receipt the deposit had actually been protected until I asked for the deposit to be returned, this was 2 weeks after I left the property.

    The prescribed Information actually states I should have received this information within 30 days of the tenancy starting and if not to seek legal advice. I actually had no idea where the deposit was, as although the agreement says it is held with the DPS when I put my details into the website it says no deposit matching them could be found. It wasn’t until the letting agent emailed me a copy of the DPS certificate/receipt (2 weeks after the end of the tenancy) that I knew the deposit ID but the website still wouldn’t show the deposit as being held. Only when I phoned DPS and gave them the ID did they confirm they were holding it but I still can’t use the details to log into the DPS website. Is this a DPS error or something relating to the landlord?

    Should I win a claim through DPS (providing I can actually log in)? Failing that because they didn’t provide all the correct documents on time would court be an option? I really just want the actual deposit I paid returned.

  • jpkeates
    replied
    While it's common to give the Prescribed Information to the tenant with the Tenancy Agreement it can backfire if the deposit isn't actually protected at that point, because the Prescribed Information is technically not correct.

    It will be almost impossible to take legal action from outside the UK (unless you come back when required).

    I would suggest dealing with the two issues separately.
    Ask the letting agent for details of the deposit because you can't find any evidence that it was protected. They can be sued for that as well as the landlord, so it should focus their minds a little.
    So suggest that you might have to sue them for the penalty (they may claim that you have to sue the landlord, but they're wrong, you can sue whoever you paid it to - which would have been them.
    The DPS does send emails, but that requires the agent (or landlord) to enter them correctly and it's easy to get wrong (done it myself).
    But you can put the onus on the agent to get you the information - don't tell them you're going abroad, though, as that might encourage them to try and delay things.


    There's a reasonable chance that the deposit wasn't protected and if it wasn't, I'd suspect that they'll fall over themselves to get it back.

    If the landlord is trying to make a claim against the deposit or you for damage using a photograph of a different property, that's probably fraud.
    Once you know where you are with the deposit, suggest that the agent checks their records to see if the photo was used to make a claim against the other tenant, otherwise they're supporting the landlord's crooked activity.

    Your chances of getting anyone to do anything about the attempts, other than paying a solicitor to write and tell them to stop it as very small.

    Leave a comment:


  • cherrie
    replied
    Thank you for all your help.

    The prescribed information was signed by myself and the letting agent at the same time the tenancy agreement was signed and the keys were handed over. I wasn’t actually given a chance to read the prescribed information before I signed it. The prescribed information is a few pages long, there is one clause in it that says if I don’t receive proof the deposit has been protected within 30 days to seek independent legal advice.

    I’m going to dedicate Tuesday to getting the deposit issue sorted.
    First with DPS, I still can’t log in online. I’ve checked my email inbox and the only emails I have from them are regarding a previous tenancy of mine. Are emails automatically sent by them? The letting agent has my correct email address as it is printed in the tenancy agreement. Also never received anything by post.
    The letting agent. If I contact them saying I’ve sought legal advice, I know they have no claim to the 13 months rent and as they failed to provide proof/receipt the deposit was protected within the time frame I do have a right to claim for the penalty in court but will settle for the amount I paid a good idea? Or could this horrendously back fire?
    Again not seeking any penalty but with moving outside the UK soon I am hoping to have this wound up before I leave. If it goes through the DPS then I have to take court action I guess I will be stuffed if I no longer reside in the UK?

    Regarding the other flat; I didn’t want to make my initial post too long but the building itself was once a two-story house that has been converted into two flats. I assume that the same person owns both flats as I found the sale and planning data online and no sales have happened since the conversion. When the other flat was put back up for rent I also found the advert online and it had photographs including the floor plan, the only difference between the two flats is a small area in the hall and the location of the front door but I think this could easily be hidden in photographs.
    It seems the previous tenant never took the bins out and the rubbish/bags were stacked up inside the flat. I lived in the upstairs flat when leaving the property I had to talk past the downstairs flats front door. When the tenant left the landlord/agent hired a professional cleaning company who wedged the front door to the flat open and I could see in, so when the letting agent emailed me the pictures I immediately knew where they were from. I suppose the view out of the window would be different but pictures the letting agent sent were of the carpet and skirting boards.

    Leave a comment:


  • MdeB
    replied
    Originally posted by cherrie View Post
    My former landlord and letting agent are trying to withheld my deposit. (England 12month AST).
    They are trying to claim I caused damage to the carpets and walls but this damage actually belongs to the second flat in the same building and was caused by the previous tenant of that flat who left the flat 4 months ago.


    I took photos (have exif data) before I left the property that shows it was in a good, clean condition is this enough? The flats layout and decor are identical.
    You appear to be saying that there are two identical flats in the building and that they do not share any common facilities.

    You further appear to be saying that the other flat was vacated 4 months ago and left in a poor state, AND that the Agent is using photos of that flat to claim money from you.


    Could you tell us:
    1. How you know that the flats are identical?
    2. How you know that the other flat was left in a poor state?
    3. Are there no distinguishing features of the flats (e.g. mirror image; views from windows)

    I knew the deposit ID but the website still wouldn’t show the deposit as being held. Only when I phoned DPS and gave them the ID did they confirm they were holding it but I still can’t use the details to log into the DPS website. Is this a DPS error or something relating to the landlord?
    You need to phone them again, explain that you cannot access your deposit information on-line, and insist that they sort it out whilst you are on the phone.
    If necessary, insist on speaking to someone more-senior until you get access.

    Also ask them when the deposit was protected.

    Should I win a claim through DPS (providing I can actually log in)?
    If all is as you say, then you should be OK.

    Failing that because they didn’t provide all the correct documents on time would court be an option?
    I really just want the actual deposit I paid returned.
    Court is an option if you believe LL/agent have unlawfully withheld your money.
    There are two things you could consider:
    1. the return of your money.
    2. penalty for non-compliance with deposit protection law.
    For non-compliance, the failure to provide the DPS Ts & Cs may be difficult for you to prove (LL/Agent will claim they did and you have forgotten).
    But here are 2 other possibilities for this:
    • If DPS records show deposit was protected more than 30 days after receipt, then you have a case.
    • Did the LL/gent provide you with the opportunity to check and sign the document containing the prescribed information, and provide you with a certificate signed by the LL/agent stating that they believe the PI to be correct and had given you the opportunity to check and sign the document?
    If they have failed in either of these, then pointing it out to agent may persuade them to return your deposit.

    Leave a comment:


  • jpkeates
    replied
    Originally posted by MdeB View Post
    Yes, the tenancy ends, but what about the contract?
    It would depend on the wording, but generally speaking the tenancy agreement documents the terms of the tenancy and doesn't have an existance separate to it.
    It's not helpful that in England, land law and contract law operate slightly differently, but the idea (for example) that the contractual agreement to pay rent has an existence independent and parallel to the land law notion of rent is particularly problematic.

    In this case it's probably academic.
    "If, on coming to the end of the fixed term agreed above, the landlord does not seek possession and the Tenant remains in the property, they will be considered by virtue of the Section 5 of Housing Act 1998, to have a statutory periodic tenancy and this will continue until ended by either party. "
    As the two necessary conditions were not met, the contract's attempt to restate the legal position (which is wrong) mean that even in this agreement, the tenancy would come to an end at the end of the fixed term.

    "If the Tenant or Landlord intends to terminate the Agreement at the end of the fixed term, or at any later date, the Tenant agrees to give the landlord at least one month’s prior Notice in writing and the Landlord agrees to give the Tenant at least two months prior notice in writing." Neither the landlord or tenant needs to intend for the agreement to end at the end of the fixed term, it simply happens.

    For the tenant to have breached this clause the landlord would have to rely on the tenant's notice to prove intent, while simultaneously claiming not to have received it.

    That term is so badly constructed, it's hard to rely on it at all. On the face of it, if the tenant intends to leave both they and the landlord have to give notice to each other

    Worst case, ​​​​​​​let's say the contract doesn't end, in which case the tenant might be in breach of some of the contract terms (possibly a lot of them).
    The landlord would have the right to compensation for any loss arising as a consequence, which is zero.

    Leave a comment:


  • MdeB
    replied
    Originally posted by jpkeates View Post
    Because the initial tenancy ended (technically, and rather beautifullly because of "the effluxion of time"), there is no need for you to give notice to end it. It simply ends on its own.

    There have been lots and lots of cases where this happens and there isn't anything the landlord or agent can do about it.
    Yes, the tenancy ends, but what about the contract?

    The contract says that it will continue beyond the fixed term unless notice is served to prevent that.
    Shelter seem to believe that if the contract says T must give notice, then LL has a case if T does not.(https://england.shelter.org.uk/housi...d_term_tenancy), but they too seem to be conflating "tenancy" and "contract".

    Do those cases include contracts with a notice clause?

    Leave a comment:


  • MdeB
    replied
    Originally posted by cherrie View Post
    Below the second reference it says how to give notice.
    Sent by ordinary post in a prepaid letter, properly addressed to the landlord or agent…..If any Notice or other document is sent by ordinary post it shall be deemed to have been served 48hours after it was posted.
    You did exactly what your contract required, so notice is deemed served.

    You may wish to point this out to them.

    Leave a comment:


  • MdeB
    replied
    Originally posted by mariner View Post
    T cannot serve Notice during Fixed Term
    Of course T can serve notice during the fixed term. It is just that T cannot serve legally-binding notice to quit during the fixed term.

    There is nothing to stop T serving notice on L stating that that they do not intend staying in the property beyond the fixed term.

    Leave a comment:


  • Morton579
    replied
    First you will need to log in to DPS and tell them that you don't agree with your landlord's deduction of the deposit.

    If you don't respond within 14 days (from the time you receive the deposit deduction notice from DPS), your landlord have to serve you a statutory notice (which will cost them money), and you will have another 14 days to respond to that.

    If you respond to disagree with the deposit deduction with 14 days, both you and your landlord have to submit evidence to an adjudicator who will then decide how the deposit it split (in any case, the adjudicator will favor the tenant over the landlord). If you disagree with the results, you can then go for small claims through court.

    Leave a comment:


  • DPT57
    replied
    Tell the agent to check the law. No notice required

    Leave a comment:


  • jpkeates
    replied
    Your notice isn't relevant to anything.
    The tenancy ended because it ended, not because of your notice.

    It's almost certain that your notice wasn't valid if you sent it in the fixed term anyway.
    That's another reason that that contract term is pointless, all it does is give the landlord information about your intentions.
    I can't remember the actual legislation (anyone?)

    In future, post anything important first class from a post office and ask for a "proof of posting" certificate (it looks like a receipt, but it's evidence of sending something at least).

    Leave a comment:


  • cherrie
    replied
    I did give them notice though. I sent them a letter (template I found online) by ordinary post 6 weeks before the end of the 12 month term. When the tenancy agreement effectively said they only needed 1 month + 2 days.
    I don’t have any proof of what was said when the keys were returned but the admin assistant did mutter Friday which was when the tenancy was due to end. And I would have imagined she might have been slightly confused if I came in to drop off keys if they weren’t expecting them.

    If they continue to mention the rent I will mention this to them but how does this play out in regards to the deposit? I am guessing they are relying on the fact the notice was sent my standard post, therefore I can’t prove they did receive it. Can I use the receipt I received when I handed the keys back to counter act this?

    Leave a comment:


  • jpkeates
    replied
    Originally posted by cherrie View Post
    Sorry this is all very new to me.
    No worries, it's a common enough issue and very few people know their rights!

    The first term of the agreement presumably refers to a definition of the Term, which will say something like "A term of X months starting on XX/XX/XXXX and ending on YY/YY/YYYY.
    That is both the fixed term and totality of that tenancy.
    When it gets to midnight on YY/YY/YYYY that tenancy ends - regardless of notice or anything either you or the landlord (or agent) do.

    What the rest of the term says is what happens by law. As soon as that tenancy ends, if you are still resident, a new periodic tenancy starts. However, you weren't living there then, so no new periodic tenancy began.

    For the record, the relevant Housing Act was in 1988 not 1998.

    The second term confirms what notice you are required to give. You didn't do that, so you're in breach of that term.
    Don't worry about that, you might even invite that landlord to sue you for the breach, it won't do them any good because they haven't suffered any loss.

    Because the initial tenancy ended (technically, and rather beautifullly because of "the effluxion of time"), there is no need for you to give notice to end it. It simply ends on its own.

    There have been lots and lots of cases where this happens and there isn't anything the landlord or agent can do about it.

    More to the point, when you returned the keys, it was an almost certainly offer to surrender the tenancy, which the actions of the agent confirmed was accepted (they retook possession of the property on behalf of the landlord.
    That's a little bit less certain because it depends on exactly what was said, but arguably the tenancy actually ended then.

    As a practical step it might help to point this out to them and suggest that, like you, they take legal advice.
    They're not going to know it's just some bloke on a forum you were advised by.

    Leave a comment:


  • cherrie
    replied
    Sorry this is all very new to me.

    There are two references to ending the tenancy:

    The first:
    If, on coming to the end of the fixed term agreed above, the landlord does not seek possession and the Tenant remains in the property, they will be considered by virtue of the Section 5 of Housing Act 1998, to have a statutory periodic tenancy and this will continue until ended by either party.

    The second:
    If the Tenant or Landlord intends to terminate the Agreement at the end of the fixed term, or at any later date, the Tenant agrees to give the landlord at least one month’s prior Notice in writing and the Landlord agrees to give the Tenant at least two months prior notice in writing.

    Below the second reference it says how to give notice.
    Sent by ordinary post in a prepaid letter, properly addressed to the landlord or agent…..If any Notice or other document is sent by ordinary post it shall be deemed to have been served 48hours after it was posted.

    Leave a comment:


  • jpkeates
    replied
    Please could you quote the exact wording of the tenancy agreement.
    If you're in England, the tenancy will probably have a fixed term and then some text to say that it will continue if not ended.
    In fact, what happens in most cases is that when the fixed term ends, a new tenancy starts automatically if you don't move out.

    But, as you'd moved out, a new tenancy won't start and the previous one ends (regardless of notice or whatever the agreement says).

    It is possible to word a tenancy agreement so that this isn't the case, but it's quite unusual.
    The detail is what we need.

    Leave a comment:

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