Common-law contractual tenancy: return of deposit

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    #31
    Two separate threads by same member have been merged here. Do not cause problems by starting continuation threads; use the same one.

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      #32
      Oh my apologies, new member and thus unfamiliar with the system!

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        #33
        Am reviving this thread again and hope ths isn't getting too annoying. My question sis:
        1. Is it possible to go to court and file a small claim, i.e. settle the dispute in court, although TA says, if dispute is not resolved within 90 days it will go into Arbitration. ALthough I imagine this is a naive question, which of the 2 is better?
        2. If this goes to court/arbitrator will damage claims be decided on basis of TA (which tends to be partial to LL) or common law? i.e. will fairness/reasonableness of LL's claims be taken into account (i.e. will fair wear and tear be assessed), or do the courts/arbitrators take the view that TA which urges replacement of goods (in this case 9-year old curtains) in condition at start of tenancy should apply?
        Don't know if I've made this clear enough or not, but am in some distress.
        Many thanks!

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          #34
          Originally posted by Eddie View Post
          Am reviving this thread again and hope ths isn't getting too annoying. My question sis:
          1. Is it possible to go to court and file a small claim, i.e. settle the dispute in court, although TA says, if dispute is not resolved within 90 days it will go into Arbitration. ALthough I imagine this is a naive question, which of the 2 is better?
          Yes, you can issue a claim regardless of what the TA says about arbitration.

          I'd want to know a lot more about the arbitration service proposed before considering this option. If the arbitrator isn't specifically trained in housing/landlord & tenant law, then it would be inadvisable to use arbitration based on an untrained person's idea of what's "fair". It also sounds like it could be another delaying tactic by LL - 90 days is a ridiculously long time to wait.

          So, court claim is better IMO.


          2. If this goes to court/arbitrator will damage claims be decided on basis of TA (which tends to be partial to LL) or common law? i.e. will fairness/reasonableness of LL's claims be taken into account (i.e. will fair wear and tear be assessed), or do the courts/arbitrators take the view that TA which urges replacement of goods (in this case 9-year old curtains) in condition at start of tenancy should apply?
          Tenant is never responsible for fair wear and tear. LL is never entitled to betterment. So, if the TA says T must replace new for old, or that T is liable for wear and tear, statutory law would override this.

          You do not seem to appreciate that the LL's case is very weak, so you are worrying far too much about this! The LL has almost no supporting evidence for the claimed deductions, and the deposit is your money. LL must prove he is entitled to make any deductions - not only prove that the alleged damage occurred, but prove that he is legally entitled to compensation for the alleged damage. No proof/no legal entitlement = no deductions.

          As I have previously advised, send a letter before action making your final offer as regards deductions (state that the offer is without prejudice and you do not admit liability), give a deadline 7 days hence, then issue a claim if he doesn't pay up. Stop worrying and dithering and just get on with it.

          Money Claim Online is the easiest way to start a claim. (There is v. limited space for particulars of claim online, so stick to basic facts - dates of tenancy, deposit paid, refusal of LL to return deposit - but you will get an opportunity later in proceedings to give a more detailed account). Remember to claim for interest too - court rate is 8% per annum - it tells you how to do this online. Remember that if you claim over £5,000 it may not be allocated to the small claims track, meaning higher court costs (which would be added to the claim).

          See also court fees webpage.

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            #35
            Thanks very much again! Had made LL a settlement offer without prejudice, which he has rejected, citing evidence that may or may not hold up in court. He has now agreed to release a part of the deposit. However, this is not just the amount that he has claimed but much more (2000.00), since he is saying that he might have to revise his claims to current market rates for compensation of the alleged damage caused, has issued instructions to Agent. I now have to agree in order for this to go through.
            I am inclined to accept this, and then go the the small claims court and make a money claim.
            Thanks for the tip regarding the arbitrator. The agency is a large, reputed one, but they are the LL's agents, after all, so am uneasy.
            If Agent is stakeholder of the deposit, should the claim be filed against him or LL?
            By the way, in the event of a court claim AND an arbitration (TA says after 90 days dispute automatically goes into arbitration), which prevails?
            Thanks again! Sorry for sounding so dithering, but this is so horribly unpleasant, after being good and stable tenants for 5 years and really looking into the details of possible damage caused by us (including getting special hob knobs replaced, because they had been slightly damaged by hot pans!!) All to no avail, since the house was sold and these things did not matter. Old, unlined voile curtains did.

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              #36
              Originally posted by Eddie View Post
              Thanks very much again! Had made LL a settlement offer without prejudice, which he has rejected, citing evidence that may or may not hold up in court. He has now agreed to release a part of the deposit. However, this is not just the amount that he has claimed but much more (2000.00), since he is saying that he might have to revise his claims to current market rates for compensation of the alleged damage caused, has issued instructions to Agent. I now have to agree in order for this to go through.
              I am inclined to accept this, and then go the the small claims court and make a money claim.
              You said LL was high-handed, but this is rather breathtaking.

              Get whatever you can back now, (obviously do not sign anything to the effect that you accept the money in full and final settlement - it's just an interim payment of the non-disputed sum). Then, issue a claim for the rest. I can assure you that based on what you have said about the claimed deductions (9 year old voile curtains, and minor garden stuff he can't prove), there is no way on earth the LL will win £2K. He'll be lucky if the judge thinks he's entitled to anything.


              Thanks for the tip regarding the arbitrator. The agency is a large, reputed one, but they are the LL's agents, after all, so am uneasy.
              If the agent is the proposed arbitrator then I strongly advise you not to agree to arbitration. The agent acts for the landlord; he will be obviously be biased in the LL's favour.

              If Agent is stakeholder of the deposit, should the claim be filed against him or LL?
              The landlord. Your contract was with the landlord, and the agent is only holding the deposit on behalf of the landlord.

              By the way, in the event of a court claim AND an arbitration (TA says after 90 days dispute automatically goes into arbitration), which prevails?
              There can be no "automatic" arbitration without your consent. Do not give your consent. As previously advised, send the letter before action now and then issue the claim next week (you do not have to wait 90 days).

              Thanks again! Sorry for sounding so dithering, but this is so horribly unpleasant, after being good and stable tenants for 5 years.
              You're very welcome. I appreciate the whole situation must be very stressful, with so much money being withheld and trying to negotiate with such an unreasonable person, but do try to appreciate that you have a very strong case and have nothing to fear from taking legal action. You can be fully confident that the judge will make a fair decision, i.e. one in favour of you. The absolute worst that could happen is that you may be awarded slightly less than the sum claimed, i.e. something like £1900 instead of £2000. Which isn't a very terrifying prospect.

              Meanwhile, try, if possible, to maintain an emotional distance from the situation.

              I anticipate that the LL, being stubborn and completely ignorant of the legal position, will dispute your claim strenuously, and may well invent further deductions. Don't be surprised if this happens. It is not at all unusual that when a defendant has no defence, they will resort to lying. Without evidence to support any allegations, I assure you his defence will fail.

              I am happy to help further, so do post back with any queries you have as your claim proceeds. I'm no expert but I have made three claims in my time so I am reasonably familiar with procedure.

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                #37
                Thanks again. No, the agency are not the arbitrators. I assume however that they will appoint one. TA says nothing about the procedure though.

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                  #38
                  Hi
                  Have just read the Arbitration Act of 1996 which says that once party to an arbitration agreement, a stay of proceedings can be brought against the party that has initiated court action.
                  http://www.opsi.gov.uk/Acts/acts1996...2#pt1-pb1-l1g1
                  I wonder whether, under these specific circumstances, a claim in the County Court may not be stayed by the LL. LL has already stated that the next step (according to TA) is arbitration, not court action. Am unsure how to proceed, given that this is a non-Housing Act tenancy.

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                    #39
                    Originally posted by Eddie View Post
                    Hi
                    Have just read the Arbitration Act of 1996 which says that once party to an arbitration agreement, a stay of proceedings can be brought against the party that has initiated court action.
                    "6 Definition of arbitration agreement
                    (1)In this Part an “arbitration agreement” means an agreement to submit to arbitration present or future disputes (whether they are contractual or not
                    )".

                    So what does it actually say in the contract? Please can you quote the relevant provision.

                    Comment


                      #40
                      See this article by PainSmith Solicitors, (a practice specialising in residential landlord and tenant law)

                      http://www.landlordzone.co.uk/pdf/arbitration.pdf

                      I haven't read it all the way through, but this bit immediately caught my attention:

                      "the Arbitration Act makes it an unfair term under the Unfair Terms and Consumer Contract Regulations for any clause to be included in a contract which demands arbitration for sums of less than £5,000"

                      So, even if your contract says you must go to arbitration, if the LL returns the non-disputed sum (therefore leaving a disputed sum of £2,000), you have this card up your sleeve. So get that money from the LL, then issue a claim.

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                        #41
                        See s.89-s.91 of the Arbitration Act 1996: http://www.statutelaw.gov.uk/content...&filesize=8557

                        and here's the 1999 Regulations setting the £5000 minimum for the purposes of s.91: http://www.statutelaw.gov.uk/legResu...=1&SortAlpha=0
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

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                          #42
                          See also paragraph 3.134/3.135 of the Office of Fair Trading report on unfair terms in tenancy agreements

                          http://www.oft.gov.uk/shared_oft/rep...rms/oft356.pdf

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                            #43
                            "Any disputes between the Landlord and the Tenant arising out of any Schedule of Dilapidations which shall not have been settled within 90 days of the determination of the term hereby granted shall be referred to a single arbitrator in accordance with the Arbitration Act 1950 as amended by the Arbitration Act 1979 and the Arbitration Act 1996 or any statutory modification thereof for the time being in force and the Landlord and the Tenant will pay the costs thereof in equal shares or in such shares as the Arbitrator may determine"
                            Thanks!

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                              #44
                              By the way, thanks, thanks and thanks again!

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                                #45
                                Originally posted by Eddie View Post
                                the Arbitration Act 1950 as amended by the Arbitration Act 1979 and the Arbitration Act 1996
                                1950 and 1979 Acts now replaced by 1996 Act.
                                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                                4. *- Contact info: click on my name (blue-highlight link).

                                Comment

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