deposit held by agent, LL wants to withhold amount - who do we start action against?

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    deposit held by agent, LL wants to withhold amount - who do we start action against?

    Possibly quite a simple question. The agent is holding our deposit, but our landlord wants about £1700 of it for supposed damages. The landlord and I are unable to agree. As the agent has said that they merely hold the deposit but will not act as a third party arbiter, what is the next step. Who do I start a court claim against, thelandlord or the agent? The agent is holding my deposit but it is the landlord who is effectively preventing me from getting it back. Also, are there any steps I need to take before taking this to court (ie - will a judge expect me to have attempted arbitration or mediation of some sort?)

    The tenancy was not AST but a contracutal tenancy (ie, yearly rent > £25k) so no deposit protection scheme.

    #2
    The letting agent is actually the landlord's agent. If you and the landlord are not able to agree the amount you are due back then you will need to take court proceedings against the landlord.

    The claim is likely to be allocated to the small claims track. This means that if you win your claim you can recover the court fees, and maybe any expenses you incur in attending at court. If you use solicitors you will not recover those costs from the landlord even if you are successful.

    Was there an inventory prepared when you moved in?
    PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

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      #3
      Originally posted by Graham111 View Post
      Who do I start a court claim against, thelandlord or the agent? The agent is holding my deposit but it is the landlord who is effectively preventing me from getting it back. Also, are there any steps I need to take before taking this to court (ie - will a judge expect me to have attempted arbitration or mediation of some sort?)

      The tenancy was not AST but a contracutal tenancy (ie, yearly rent > £25k) so no deposit protection scheme.
      Sounds as though the agent may be acting as 'stakeholder'. Arbitration is expensive and not appropriate for an amount less than £5,000; indeed, even if your contract provides that any dispute should be settled via arbitration it is not an enforceable term if the disputed sum is less than £5K. Quoting from a long-ago thread

      Originally posted by jeffrey View Post
      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
      Although your claim is against the landlord, I would also mention (in the particulars of claim, and in your witness statement) that the agent is acting as stakeholder and, when you win, ask the court to include an order in the judgment for the stakeholder to hand over the money. This would avoid the potential scenario in which the agent continues to refuse to pay out on the basis that the judgment is against the landlord, not him - leaving you with the additional hassle of enforcing the judgment against the landlord and his assets.

      There have been cases where the Deposit Protection Scheme (DPS), which effectively acts as stakeholder, has refused to pay out to the winning party following a CCJ, because the DPS was not mentioned on the order.

      BTW, if this is your first county court claim, it'll help if you buy a book on the small claims procedure; there are a few on Amazon.

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        #4
        There was an inventory prepared when we moved in and when we moved out. The checkout clerk has stated that the property was worn around the edges when we moved in a year ago. There has been some normal wear and tear (scuffs and nicks), a well as some holes from pictures we hung that I filled in, but did not paint over. As tenants we acknowledge that there may be some items we would need to contribute to, but nowhere near the amount the Landlord is suggesting.

        Basically the Landlord was always intending to renovate the property after we moved out, and he has stated this in email exchange. He has also told us this will cost him £6000, and he wants to sting us for a percentage of the costs.

        He has not yet provided an itemised list of the damages we have allegedly caused or any quotes for repairs. We have twice asked him to provide this but I fear he is going to go ahead and do his major £6000 redecorating instead without giving us the opportunity to make good what we are supposed to have damaged.

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          #5
          Originally posted by Graham111 View Post
          Basically the Landlord was always intending to renovate the property after we moved out, and he has stated this in email exchange. He has also told us this will cost him £6000, and he wants to sting us for a percentage of the costs.

          He has not yet provided an itemised list of the damages we have allegedly caused or any quotes for repairs. We have twice asked him to provide this but I fear he is going to go ahead and do his major £6000 redecorating instead without giving us the opportunity to make good what we are supposed to have damaged.
          The landlord has no obligation to give you access to make good after the tenancy has ended.

          However, as tenant, you are not liable for fair wear and tear (and LL is not entitled to 'betterment', i.e. charging T for improvements). The odd picture hole is not sufficient damage to justify even a portion of redecorating costs.

          Remember, the deposit is your money, and the onus is on the LL to prove you caused a loss by causing actual damage - the fact that the decor is perhaps a bit tired after several years' wear and tear is not a valid basis for deductions.

          (BTW, I think you perhaps missed my first comment above as we posted around the same time).

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