Case law

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    Case law

    We are currently involved in a court case over the return of our deposit of £995 (and being counter sued for 6,700 ). I'll post the full story when we have had the hearing to assist others that might be in the same position, but for now I could use some help of a legal nature.

    We just paid £60 to have a hearing to get my partner added onto the claim (we filed online and you could only input one claimant). I sent a copy of the front page of the tennancy agreement, the back page with the landlady's signature, my partners and mine on it, and I stated on the form that we would not be attending the hearing as all parties had agreed to this. The judge ordered that "The application be struck out, No further application to be issued without leave first being sought and granted"

    I do not understand what this means, I feel like the court system is now trying to extort money from me as well as the landlady. Needless to say I this has damaged my faith in the system, so I want to arm myself further for the actual hearing.

    I have read on the Arla web site that

    "
    Fair wear and tear – this means making an allowance for: -

    The original age, quality and condition of any item at commencement of the tenancy
    The average useful lifespan to value ratio (depreciation) of the item
    The reasonable expected usage of such an item
    The number and type of occupants in the property
    The length of the tenants occupancy


    It follows therefore (and is an established legal tenet) that a landlord is not entitled to charge his tenants the full cost for having any part of his property, or any fixture or fitting, “…..put back to the condition it was at the start of the tenancy.”
    "

    Can anyone point me at any case law that agrees with this, as I don't trust the judge to use common sense.

    #2
    This you may better understand if I simply say that a landlord is not entitled to charge you to repair "fair wear and tear", which is wear and tear caused by ordinary every day use. So, slight wear in a carpet at the front door is fair wear and tear, whereas an iron burn on the carpet is not. I know of no case I'm afraid, but this is a very common thing to come up so it'll be seen all the time by judges.
    Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

    Comment


      #3
      Sorry, I understand about the wear-and tear issue (I wish the landlady did), I just want to make sure I can point this out as law when I'm in court.

      Out of completeness our wear-and-tear problems are:

      A carpet which was listed as "heavily stained" on the inventory (I have video and photo's too) that the landlady reckons we added a stain to.

      A carpet which was listed as "some staining" on the inventory (I have video ) that the landlady reckons our cats caused by weeing on it (the previous tennants - the landlady's sister - had a cot over the stained area).

      A carpet which was unmarked, but the cleaners (supplied by the landlady) scrubbed some cat sick off of it, and caused a small area of heavy wearing. The landlady is claiming that the cat sick "burnt" a hole in it - but it could have only been on the carpet for about 1 hour.

      All of the carpets were wool, but were around 10 years old at the end of the tennancy. She is claiming for brand new wool carpets.

      She is also claiming for a Jacuzzi which alledgedly had a burnt out motor (we know nothing about this and were only informed about it after the new tennant moved in), but the quote was for a completely new Jacuzzi (Bath, and pump unit and fitting).

      Comment


        #4
        *EDIT* apologies, just re-read your original post and realised you did of course already understand the fair wear and tear issue

        Sorry, I realise this is going away from the original intention of your question. But I shall give you my brief views on the situation. Someone like lawstudent or paulf may be able to help with regards the case law question.
        Without photographic evidence, the landlord is going to struggle to prove you added stains to carpets marked as stained on the inventory.

        With regards the third carpet complaint, I actually think you may struggle on this one. The damage, irrespective of what actually finally caused it, is as a direct result of your pet, and as such I believe you are responsible. However, I know that views will differ on this.

        She will never in a month of sundays be awarded the cost of new carpets. A landlord must replace damages "like for like". Obviously they are not going to go out and buy a 10 year old carpet, but that is all they can charge you for, the value of the same carpet in the same condition and age. If you search these forums for carpets, there is a post somewhere by mjpl detailing how to work out the costs. But, I would be quite surprised if he was entitled to more than 10% of the cost.

        Needless to say, the jacuzzi sounds ridiculous.

        I must say, this landlord really appears to know nothing about what he can and cannot withhold, and Iwould imagine he will be laughed out of court for the most part. Out of interest, what is the countersuit for?
        Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

        Comment


          #5
          To add to Mr Shed's post, there is no way the landlady will be able to claim the cost of new carpets whether or not you damaged the 10 year old ones. If she was awarded anything it would be the cost of a 10 year old carpet which would be probably less than £50 per room.

          Regarding the spa bath, if she provided the bath and it broke down, unfortunately for her she's responsible for repairs unless she can prove you damaged it. It's like white goods, things break without necessarily being the tenant's fault.

          Comment


            #6
            OP, I do not think it is exactly what you are looking for, but there are details about a number of cases, and about fair wear and tear in general, here:

            http://www.citizensadvice.org.uk/macnn/wrd_unsafe.doc

            Hope it helps.
            Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

            Comment


              #7
              The worrying thing is that she has a solicitor who is going along with all this. When I spoke to a solicitor he said I didn't need his help, but my recent court dealings have made me question this again. I know there is always two sides to a story, but I can't see her point of view in this case. Here is an overview of the counter sue:

              £339 - Carpet cleaning (done twice) - Carpet was not cleaned when we moved in, video, photo's and inventory show this.

              £1280 - Replacement Stair, lounge and bedroom carpets - see above post

              £60 - General Cleaning to oven fridge freezer, removal of rubbish - The fridge and freezer were iced up and dirty when we moved in, as was the oven (photo and video evidence) the rubbish was in the bin area. The receipt for the oven cleaning was dated 2003, and we paid for a cleaner as part of the tenancy agreement! There was rubbish all over the place when we moved in, and the house was one field away from a land fill site, so was a bit prone to random rubbish appearing.

              £50 - Damage to a window sill by cat scratching, water damage to cupboard under sink. The marks on the sill, are 3mm wide indentations this is a hardwood sill and must have taken some pressure to cause the damage (likely to be kids with lego or something similar as the previous tennants ran a creche from the house), it was not on the inventory, but was present at the start of the tennancy, we never thought to mark it down as it had obviously been there for some time. The water damage was present at the start of the tennancy (video evidence - but not on inventory)

              £2760 - Repair of Jacuzzi. As stated in post above, reported 5 weeks after we had moved out, one week after new tennant had moved in. Quote which we have been sent is for a whole new jacuzzi bath which is still only £1700 of the quote (I have got an advert for the same Jacuzzi for £700), the quote also includes the cost of 2 solid oak cupboards making it up to £2760??

              £300 - Cost of repairing cooker element?????? Cooker worked fine

              £995 - loss of rental due to obstructions on viewings. The rent was £950 and the obstructions only happened when she repeatedly turned up on our doorstep to show people around with no notice, or 30 mins. I asked her for 24 hours and gave her convenient times - although I did do viewings at other times (I had to show the people around)

              £775 - General cleaning after vacating. This was in fact re-decoration cost mainly, but not exclusivley due to her not fixing a shower that leaked when we moved in. We paid for cleaners as part of the tenancy - she is not calling the cleaners as witness as they are firmly on our side, I don't want to burden them as she is there employer so I am not calling them either.

              £50 - fee mentioned in contract in case of deposit displutes. Fair enough!

              She has all of my video and photographic evidence, but has ignored all of it.

              At the start of the next tennancy, the carpets had not been replaced, the oven had not been replaced, I don't know about the jacuzzi as this happened after the new tenant moved in.

              All in all

              Comment


                #8
                Well, she needs a new solicitor. And yes, generally, you would not need the expense of a solicitor in SCC.

                In my very brief look at the overview of the countersuit, straight away I can tell you she has zero basis for the £995 for "obstruction" - you have the legal right to refuse access at any time, and for any reason, unless there is an emergency in the property.

                With regards this £50 charge, I would like somone else to comment, but this sounds grossly unfair to me, and I would imagine a judge will possibly not uphold it. It restricts the tenants right to dispute the list of damages, and I think it is a very unfair charge.

                If she cannot prove it was you who damaged the jacuzzi, then as Jennifer said, she must pay.

                In fact, nearly every charge seems completely unfounded. And, for certain, if they have not bothered to replace the items, then they will lose badly - unless it has a clause in the AST about compensation for damages, they must actually replace/repair the items in question, and you must be provided with the receipts. In all honesty, I cannot see you losing this in any way, and I am very shocked at the ineptness of her solicitor.

                If you were to get a solicitor, ensure that you get one specialising in property and letting law. In fact, with regards both the general claim and the case law you are seeking, it may be worth emailing Painsmith solicitors(who advertise on this site), as they will reply to your email for free.
                Any posts by myself are my opinion ONLY. They should never be taken as correct or factual without confirmation from a legal professional. All information is given without prejudice or liability.

                Comment


                  #9
                  On another point, in her court claim statement she claims that she never agreed to us having cat's. This is on our application form, and she agreed to this before we even looked around the house the first time. The letting agents have acknowledged that she did know. Is this not contempt of court or some such law.

                  I also can't see how you can file a claim for a jacuzzi and try to hide the cost of two cupboards in it. Is this not illegal - it should be.

                  Comment


                    #10
                    It is so ridiculous its quite likely to annoy the Judge, I really don't think you have anything to worry about at all.

                    Even this

                    "£50 - fee mentioned in contract in case of deposit displutes. Fair enough!"

                    Because its not fair enough, she's a ******* thief.

                    Comment


                      #11
                      DScuffle, after reading the breakdown of charges I can tell you that you have nothing to worry about!
                      Go to small claims court with your photo and video evidence as well as any letters to and from the landlady. Once there just state the facts, don't go and try to do the judge's job by pointing out laws etc.

                      It will take a judge 2 minutes to see what's happening here.

                      Comment


                        #12
                        Do you mean your first online application was struck out, or the second one where you tried to add your partner's name? Maybe I read it incorrectly, but it sounded as if you had no hearing at all to go to!

                        I concur with the others as far as deposit charges go.

                        Comment


                          #13
                          So case law would be a waste of time?

                          I guess I've been watching to many TV courtroom programs I've just got a little worried as I assumed having a name added to a case would be simple, anywhere else it would be a form to fill in, but in the legal system it's a court hearing (which get's thrown out with no explanation - I knew I should have attended and not assumed it was simple).

                          If I am successfull, can the landlady then sue my partner separately given that she is not a claimant in this case?

                          Comment


                            #14
                            Originally posted by attilathelandlord
                            Do you mean your first online application was struck out, or the second one where you tried to add your partner's name? Maybe I read it incorrectly, but it sounded as if you had no hearing at all to go to!

                            I concur with the others as far as deposit charges go.
                            I'm not so sure now. The letter about the date of the hearing specified that it was "for ----- to be added as a second claimant".

                            However the General Form of Judgement or Order does not specify what it was about. I'll have to contact the court again!

                            Comment


                              #15
                              There is some confusion in the court about this, but the file has gone to the district Judge for directions today, so it "looks" like the overall claim is still ongoing. I'll find out for sure tomorrow as it is being dealt with this afternoon.

                              I thought the small claims court was supposed to be simple

                              Comment

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