How to claim more than the deposit!

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    How to claim more than the deposit!

    Hello; my first post, but I can't seem to find the answer anywhere!

    Basically . . . . .
    My tenants signed a 12 month AST in Feb 09 with no break clause.
    It's a standard RICS document

    Then on 4th Aug they gave notice to quit that they would move out on 24th Aug.
    We wrote to them, saying that they couldn't legally do this and that they would be responsible for rent until a new tenant was found and also for re-letting fees.

    Luckily, new tenants were found immediately - they moved in 18/9

    The outgoing tenants now owe the following
    approx £500 unpaid rent
    £460 re-letting fee
    £25 unpaid gardening bill
    Total = £985

    Their deposit - held by the agent and protected by TDS - is £725, so even if we keep it all, we will still be £260 out of pocket.

    The tenants have told the agent to
    "YOU MAY NOT deduct any money from this deposit it must be returned in full and a settlement then agreed."
    because (amongst other things)
    "The law of the land allows me to terminate any contact at one minutes notice"

    Basically what I need to know is. Are the deposit and the money owed, two separate entities?
    Do I go ahead and claim the £985 in the small claims court or do I have to wait for the TDS dispute to be resolved??

    Thanks
    J B

    #2
    What planet do your tenants live on? Their notion that they may terminate a contract at will is plainly nonsense.

    You have two options:

    (a) Dispute the return of their deposit with TDS - raise a dispute, in other words. Prepare your claim carefully following the scheme's guidlelines on how to do this.The scheme arbitrator will decide who is due to what. The more evidence you have to support your claim, the greater your chance of success. However, as you say, the most you can be awarded is the full amount of the deposit. The rest, you'll have to pursue them for via the small claims route.

    (b) Alternatively you could refuse arbitration and pursue the whole lot at one go through the courts. The experience of LLZ members seems to be that this is the preferred option as scheme arbitration usually favours the tenants, even where legally the LL appears to have a rock-solid case. This may be because the scheme employees are not all lawyers.
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

    Comment


      #3
      Originally posted by mind the gap View Post
      What planet do your tenants live on? Their notion that they may terminate a contract at will is plainly nonsense.
      Hmm, I didn't copy/past all his ramblings but here's the first paragraph ....

      Thank you for your e mail, firstly I should inform you that I hold a degree in the Institute of Purchasing and supply and I can assure you that I know my rights. The law of the land allows me to terminate any contact at one minutes notice, your none managed contract did not contain a termination clause that is required in law, your intent was clear to serve notice within 10 days in or out of the contract period this is not clear. We followed the ten day foreclosure and left on the 25th of August 2009.
      J B

      Comment


        #4
        Originally posted by J_B View Post
        Hmm, I didn't copy/past all his ramblings but here's the first paragraph ....

        Thank you for your e mail, firstly I should inform you that I hold a degree in the Institute of Purchasing and supply and I can assure you that I know my rights. The law of the land allows me to terminate any contact at one minutes notice, your none managed contract did not contain a termination clause that is required in law, your intent was clear to serve notice within 10 days in or out of the contract period this is not clear. We followed the ten day foreclosure and left on the 25th of August 2009.

        It's nonsense, and if he doesn't realise it, he's even more deluded than I thought.There is statutory legislation relating to ASTs which assumes that the LL will give 2 month's notice if he wants T to move out; T can leave without notice at the end of a fixed term or with one month's notice thereafter. (There are also rules about the notice expiring on the last day of a rent period). These can only be departed from if both sides agree, e.g by a formal surrender - which is what, it seems. you have allowed them. In that case, the LL generally dictates the terms anyway.

        The only issue which might give rise to any debate is whether the terms of the early surrender you agreed with them (which presumably you put in writing and they signed?) covered their paying rent up to the day the new tenants moved in. (Did it?)
        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

        Comment


          #5
          May we assume from the august qualifications possessed by the T that he/she is in gainful employment? If not, it may be difficult to enforce a CCJ for more than the deposit sum.

          Do you know Ts current residential address for serving the claim?

          If the answer is yes to both questions, I would go with MTG's second suggestion; deposit scheme arbitration seems to have a similar grasp of law to the tenant's.

          Before issuing the claim, send a letter before action, setting out the figures. (Post this and any other communications to T first class with a free certificate of posting from the PO and keep copies).

          Comment


            #6
            Hey - so many questions

            ""The only issue which might give rise to any debate is whether the terms of the early surrender you agreed with them (which presumably you put in writing and they signed?) covered their paying rent up to the day the new tenants moved in. (Did it?)""

            We wrote to them and said we were going to do so. One of them came across to discuss, and said that he 'wouldn't leave us in the lurch', but nothing was signed.

            ""May we assume from the august qualifications possessed by the T that he/she is in gainful employment? If not, it may be difficult to enforce a CCJ for more than the deposit sum""

            The T's are both in gainful employment (so they say) one works for a 'paint company' (Dulux?) and the other for the NHS

            ""Do you know Ts current residential address for serving the claim?""

            Yes, and also the e mail address, which is their preferred method of communication (even when they were living in the house which is 30 yards from our front door!!)

            ""I would go with MTG's second suggestion""

            How, exactly? Will www.moneyclaim.gov.uk be OK, or should I use a solicitor?

            ""Before issuing the claim, send a letter before action, setting out the figures. (Post this and any other communications to T first class with a free certificate of posting from the PO and keep copies).""

            Is e mail OK? As before, this is their preferred method of communication thus far.
            J B

            Comment


              #7
              Originally posted by J_B View Post
              Hey - so many questions

              ""The only issue which might give rise to any debate is whether the terms of the early surrender you agreed with them (which presumably you put in writing and they signed?) covered their paying rent up to the day the new tenants moved in. (Did it?)""

              We wrote to them and said we were going to do so. One of them came across to discuss, and said that he 'wouldn't leave us in the lurch', but nothing was signed.
              This is where you may come unstuck, I'm afraid.

              Early surrender of a tenancy agreement is always best effected by a deed otherwise it would be your word against T's as to what you agreed. He could say that you told him that you would just be happy to see him go, and would not pursue the rent arrears. It would be up to the judge to decide whom he believed.

              With a signed, witnessed deed, there is far less scope for wriggling.
              'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

              Comment


                #8
                Originally posted by J_B View Post
                ""Do you know Ts current residential address for serving the claim?""

                Yes, and also the e mail address.

                ""I would go with MTG's second suggestion""

                How, exactly? Will www.moneyclaim.gov.uk be OK, or should I use a solicitor?

                ""Before issuing the claim, send a letter before action, setting out the figures. (Post this and any other communications to T first class with a free certificate of posting from the PO and keep copies).""

                Is e mail OK? As before, this is their preferred method of communication thus far.
                No, send by regular post as above. People can claim emails were not received and you cannot prove delivery.

                Moneyclaim Online is fine. No need for a solicitor (plus you wouldn't be able to claim your legal costs for a claim this size, so it's not cost effective).

                Comment


                  #9
                  Originally posted by mind the gap View Post
                  it would be your word against T's as to what you agreed.
                  Remember he has "a degree in the Institute of Purchasing and supply"

                  A friend of mine suggested that this was a 'licence to lie'.

                  Of course I couldn't comment!
                  J B

                  Comment


                    #10
                    Originally posted by mind the gap View Post
                    This is where you may come unstuck, I'm afraid.

                    Early surrender of a tenancy agreement is always best effected by a deed otherwise it would be your word against T's as to what you agreed. He could say that you told him that you would just be happy to see him go, and would not pursue the rent arrears. It would be up to the judge to decide whom he believed.

                    With a signed, witnessed deed, there is far less scope for wriggling.
                    Agreed, but, in the absence of a signed surrender, isn't the default contract the tenancy agreement in which T agrees liability for rent until Xth of X 200X? Otherwise, Ts could easily evade their liability by refusing to sign a surrender and claiming LL said he wouldn't pursue them for rent. You can't force T to sign...

                    At the very least, LL can claim rent in lieu of notice. Personally, I'd go for the whole hog and take the position that it's up to T to prove that an early surrender was accepted.

                    Also, it's a small claims track claim...judgment is based on a 'balance of probabilities'. With letters like that from the T, I think it's likely the judge would go with LL's more rational version of events!

                    Happy to be told I'm wrong!

                    Comment


                      #11
                      Originally posted by westminster View Post
                      Agreed, but, in the absence of a signed surrender, isn't the default contract the tenancy agreement in which T agrees liability for rent until Xth of X 200X? Otherwise, Ts could easily evade their liability by refusing to sign a surrender and claiming LL said he wouldn't pursue them for rent. You can't force T to sign...

                      At the very least, LL can claim rent in lieu of notice. Personally, I'd go for the whole hog and take the position that it's up to T to prove that an early surrender was accepted.

                      Also, it's a small claims track claim...judgment is based on a 'balance of probabilities'. With letters like that from the T, I think it's likely the judge would go with LL's more rational version of events!

                      Happy to be told I'm wrong!
                      Mmm..I know what you mean, and I agree, on reflection, about the TA being the 'default' agreement, but given that a surrender was agreed which made the TA redundant, would it not be perjury to claim it wasn't? I think OP should just tell the judge what the conditions really were and hope he believes him.

                      You would hope the judge would spot the Monster Raving Loony a mile off, though, wouldn't you?

                      In fact, having a degree in 'The Institute of Purchasing and supply' (interesting capitalisation there!) should be made an arrestable offence, if it encourages people to go round spouting nonsense like that!
                      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                      Comment


                        #12
                        Originally posted by mind the gap View Post
                        Mmm..I know what you mean, and I agree, on reflection, about the TA being the 'default' agreement, but given that a surrender was agreed which made the TA redundant, would it not be perjury to claim it wasn't? I think OP should just tell the judge what the conditions really were and hope he believes him.
                        It's not clear whether a surrender was actually agreed - it sounds as if OP's conditions for it would have been for T to accept rental liability up to date of a new tenancy, otherwise no surrender. Agree, best way is just to tell judge what happened.

                        You would hope the judge would spot the Monster Raving Loony a mile off, though, wouldn't you?
                        I am quietly confident.

                        Comment


                          #13
                          Originally posted by mind the gap View Post
                          Early surrender of a tenancy agreement is always best effected by a deed otherwise it would be your word against T's as to what you agreed.
                          Another thought - doesn't 'the law', say that LL must take 'reasonable steps' to get a new Tenant, which we have successfully done.
                          J B

                          Comment


                            #14
                            TDS and then a court claim for the balance? If he loses through tds then he might be less inclined to fight a legal claim? Bit of a wake up call? It can be dangerous when folk think they are right... there is no common sense as they honestly don't foresee disaster... but TDS will only award up to the deposit and will then generally stop and won't comment on any additional issues if there is no deposit to pay them. Worth considering.

                            As with all adr the burden of proof is on the party making a claim. this means that the tenant will have to prove the terms of the surrender as it is his counter-claim as it were.

                            As for the tenants assertions on contract law - he is right. He just missed the second half of the lecture where it was explained that if the other party incurs a loss following a breach of contract then he is liable for this. And the bit about some terms in some contracts being implied or incorporated via statute.

                            adjudicators can spot loonies too, if they put their loony-isms in writing, that is. as the poster here has the loony-ism in writing then he can send this to them and job done.

                            Comment


                              #15
                              Originally posted by fthl View Post

                              As for the tenants assertions on contract law - he is right. He just missed the second half of the lecture* where it was explained that if the other party incurs a loss following a breach of contract then he is liable for this. And the bit about some terms in some contracts being implied or incorporated via statute.
                              .
                              *I love it Presumably that was the half where he went out for his 'supplies'!
                              'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                              Comment

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