deposit and damage

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    deposit and damage

    Hi all
    I've read quite a few of the posts here about deposit returns and deductions. Renewals of on going tenancies, unprotected deposits but I still have some questions

    A tenant moved in Oct 2015 and vacated on 29th April. (I have 6 other properties I let just for context). This particular one the letting agent I use always put the deposit into a scheme themselves and when tenant vacated in 2015 they returned as there were arrears and damages I was able to keep as tenant didn't fight back!! in Oct 2015, they sent me a letter hidden within the tenancy agreement pack ( which in only found when the tenant moved out). In it they had indicated that I was to protect the deposit. Long story short, I rang my deposit scheme and the advice I was given is to protect the deposit asap. I did this as soon as I hang up. The tenant had been smoking in the house although the tenancy clearly stated 'no smoking'. I asked her 18 months ago about smoking when i visited beginning of 2018. I told her then that smoking is breaching the tenancy agreement. (I should have given her notice then to avoid more damage to the walls). She said she was very depressed etc I told her by text and verbally that smoking stains are difficult to remove from walls/carpets etc and no amount of decorating clears them. I explained that to remove the decorators have to stain block them which isn't cheap. She said she'd stop or smoke outside. When I visited the property again in October 2018 I mentioned the smoke smell again and she said she'd cut down I asked why she didn't smoke outside. When she said she was moving out beginning of april 2019 I reminded her of the smell of smoke and gave her the opportunity to get the property stain blocked and carpets cleaned. She didn't do either. When i checked her out on the 29th April I pointed out the smoke stains in the living room and carpets. I told her again that I'll need to get a quote to get the stains removed and carpets professionally cleaned. She said she was sorry as had been in a bad place hence starting to smoke. On the 30th April 2019 I sent an email to the tenant advising her again of what next steps would be before returning deposit. Last Saturday I received a letter from the tenant saying that she wants the deposit back and if I decided to deduct anything she will take me to court. The deposit is £500 and the most reasonable quote I've received is £535 which is higher than the deposit.

    Now my worry is the advice from the deposit scheme to protect it so there's the opportunity for mediation to take place etc but I'm concerned having read some of the other posts about the compensation of 3 times for failure to protect deposit. What advice would you people give on resolving this? I've gone back to the cheapest contract to ask whether he could reduce that any further and he said as the stains are so bad and carpets too he cannot charge any lower. With that in mind shall I take her on or what? I'm so cross with myself for the oversight of the deposit. I've not been here before and feel so confused.

    Thanks for reading my long post

    #2
    Originally posted by shiraaz View Post
    when tenant vacated in 2015 they returned as there were arrears and damages I was able to keep as tenant didn't fight back!! in Oct 2015, they sent me a letter hidden within the tenancy agreement pack ( which in only found when the tenant moved out). In it they had indicated that I was to protect the deposit.
    I got lost about here. Could you please explain this more clearly. Also, please complete the questions in the sticky posting for this forum.

    Comment


      #3
      Return the deposit to the tenant.
      Fix the damage and write it off to experience (and you've had four years rent).

      If you try and claim anything from the tenant, they will counter claim for the penalty and they'll almost certainly win. As the minimum penalty is the value of the deposit (plus the deposit itself, if you haven't returned it) you stand to lose as much from the claim, and the penalty might be more.

      If it ever happens again, don't protect the deposit (return it immediately), as with the late protection you are now in a worse position than you would have been had you returned it.

      It's a daft mistake, but it's water under the bridge.
      I'd probably not use that agent again.
      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

      Comment


        #4
        Thank you jpkeates. But the tenant doesn't know I didn't protect the deposit so does that make any difference? Also can a tenant get information about their deposit from the deposit schemes? Or does this fall under the GDPR and therefore she wouldn't be able to get any information?

        Comment


          #5
          leaseholder64 where are the sticky posting please? don't use the forum often so not aware
          when tenant vacated in 2015 they returned as there were arrears and damages I was able to keep as tenant didn't fight back!! in Oct 2015, they sent me a letter hidden within the tenancy agreement pack ( which in only found when the tenant moved out). In it they had indicated that I was to protect the deposit.

          The agent didn't make it clear that they weren't protecting the deposit as previously. The letter was stapled together but at the back of the tenancy agreement and as I had already signed the tenancy electronically I didn't go through it again

          Comment


            #6
            Originally posted by shiraaz View Post
            leaseholder64 where are the sticky posting please? don't use the forum often so not aware
            Near the top of the forums posts: https://forums.landlordzone.co.uk/fo...ll-new-posters

            Comment


              #7
              I don't understand what the previous tenants' deposit has to do with the current ones.

              Comment


                #8
                Originally posted by shiraaz View Post
                Thank you jpkeates. But the tenant doesn't know I didn't protect the deposit so does that make any difference? Also can a tenant get information about their deposit from the deposit schemes? Or does this fall under the GDPR and therefore she wouldn't be able to get any information?
                The tenant will be able to see when the deposit was protected and the information will be freely available online.

                You're meant to have given the tenant Prescribed Information, which you can't have done either, so that makes the issue worse.

                The tenant will only have to google deposit disputes to find out about the need to protect it and for them to be given the correct documentation.

                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  T has 6 years + 30 days from date Deposit was received, to find out Deposit was not properly protected, & initiate a Penalty claim Do you feel Lucky?

                  Comment


                    #10
                    Thanks mariner. It's not 6 years!!

                    leaseholder64. The relevance of previous tenant deposit is that the letting agent protected the deposit. I assumed they had protected it this time..

                    thanks for all your responses

                    Comment


                      #11
                      Originally posted by mariner View Post
                      T has 6 years + 30 days from date Deposit was received, to find out Deposit was not properly protected, & initiate a Penalty claim Do you feel Lucky?
                      Is it actually from when deposit was received though; certain CC's allow a claim to be brought and heard from date of discovery by the tenant.
                      Reason being, some landlords hope by hiding the information from tenants they will escape penalty costs but it depends on the court I would assume.

                      Comment


                        #12
                        Originally posted by MW1985 View Post
                        Is it actually from when deposit was received though; certain CC's allow a claim to be brought and heard from date of discovery by the tenant
                        Because courts allow some flexibility, it's hard to be definitve, but that's almost certainly not correct.
                        The initial 30 (used to be 14) days are not part of the time out clock - the six years begins when the deposit isn't protected in line with the regulations, and it doesn't have to be protected for the first 30 days.

                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          Originally posted by jpkeates View Post
                          ...................... the six years begins when the deposit isn't protected in line with the regulations, and it doesn't have to be protected for the first 30 days.
                          Which regulations do you refer to though? 2007 or 2011 or 2015?

                          Are you saying the most recent regulations from 2015 is the cut off date for all tenants to file a claim? Especially with regard to those tenants who have ended their tenancies pre -2015? So in effect, the claiming of a penalty can be statute barred?

                          There are many CC cases available for reading that entail tenants who are served Section 21 notices and use the non-service of the PI or a failure of the landlord to register their deposits on a SPT as a defence to their possession order while claiming a penalty under the Section 13/14 part of the HA 2004 Act. There are some of those tenants who paid over their deposits before 2006 and the courts allow their defences to be entertained and they are successful in being awarded 1 x deposit or even sometimes 2 x deposit.

                          I'm made to understand by several lawyers that the six year rule is a distraction in a deposit protection case as the penalty should always apply to a landlord who did not protect a deposit and the tenant is still in place.

                          It is only if the tenant has left the property and the tenancy has ended, then perhaps the six year rule comes into play as the contractual obligation of the landlord to protect a deposit has ended.

                          Comment


                            #14
                            Originally posted by MW1985 View Post
                            Which regulations do you refer to though? 2007 or 2011 or 2015?
                            The relevant legislation (and timescales) is the one that existed contemporaneously with the breach. So for a deposit that was meant to be protected in 2008, the deadline would be 14 days and so on.

                            Are you saying the most recent regulations from 2015 is the cut off date for all tenants to file a claim? Especially with regard to those tenants who have ended their tenancies pre -2015?
                            No,
                            So in effect, the claiming of a penalty can be statute barred?
                            The claiming of a penalty can be statute barred - almost all civil action has a time limit.

                            There are many CC cases available for reading that entail tenants who are served Section 21 notices and use the non-service of the PI or a failure of the landlord to register their deposits on a SPT as a defence to their possession order while claiming a penalty under the Section 13/14 part of the HA 2004 Act. There are some of those tenants who paid over their deposits before 2006 and the courts allow their defences to be entertained and they are successful in being awarded 1 x deposit or even sometimes 2 x deposit.
                            Statute barring doesn't prevent the non-protection being a defence to a s21 notice, because the time limit isn't an issue.

                            I'm not even saying that courts don't apply a penalty when they possibly shouldn't. But the six year limit applies to almost every civil legal claim there is, so it would be an anomaly if it it didn't apply to deposit claims.

                            Most county court cases aren't recorded at all, so I'd be interested if there is some reference documentation I'm not aware of.

                            I'm made to understand by several lawyers that the six year rule is a distraction in a deposit protection case as the penalty should always apply to a landlord who did not protect a deposit and the tenant is still in place.
                            That's an argument I've made myself, and I can imagine some courts accepting it.
                            There's a better argument that the clock should only start when the tenant becomes aware of the issue (which is true of debts, for example), which introduces the problem of when can someone be aware of something not happening and that documentation wasn't served?

                            It is only if the tenant has left the property and the tenancy has ended, then perhaps the six year rule comes into play as the contractual obligation of the landlord to protect a deposit has ended.
                            The penalty is specifically associated with the requirements to protect within a deadline and to serve Prescribed Information. The need to protect a deposit itself is a legal requirement, but doesn't carry a penalty for non-compliance.

                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #15
                              exactlly where is the deposit now ? in the scheme ? or in your pocket ?

                              this doesnt make sense to me --

                              This particular one the letting agent I use always put the deposit into a scheme themselves and when tenant vacated in 2015 they returned as there were arrears and damages I was able to keep as tenant didn't fight back!! in Oct 2015, they sent me a letter hidden within the tenancy agreement pack ( which in only found when the tenant moved out). In it they had indicated that I was to protect the deposit. Long story short, I rang

                              can you please explain

                              Comment

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