Unprotected deposit and end of tenancy

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    Unprotected deposit and end of tenancy

    Hi this is my first post so apologies if a similar question has been already answered I did search but cases were different
    I am a private landlord. I had let my flat to a friend (or so I thought)
    Tenancy started April 2008 and ended 30 October 2010
    I did not protect the deposit (didnt understand it was compulsory at the time. Flat has been let for 6 year and this was the first time the scheme had kicked in place)

    I had all sort of bother with this tenant but I will get straight to the point
    He missed some rent, I paid for anything he asked during the stay and he never provided me with receipt, on inspection I found many broken things and damage (not huge but still)
    I returned part of the deposit and kept 600 pound, 275 of which is to cover rent that wasnt paid early 2010 but escaped my attention

    He is now threatening to take me to small Claim and didnt answer my email where I was offering an olive brunch to come to an agreement
    He wrote emails in which he lied about things just to rpepare his case
    He moved 2 weeks before the end of his notice stating via email ''we agreed'' but really I never did

    I wanted to protect now the 325 (or 600? or full deposit for what it matters) and I register with MyDeposit only to find out that the deposit cannot be protected after the AST has expired and the contract was on a roll on
    (apologies for my english not first language)

    What should be my line of action?
    He has always been late with rent, I have been a great lalndlord always acting fast on his requests and complains, allowing twice Housing Benefit and pet (pet damaged doorframes with rubbing)
    He also had me to believe that he would take the flat on by himself when tenant number 2 moved out 6 weeks before he did, causing loss of income. If I was in a Court could I arguee this point?
    I dont think I have explain well but pls do ask question and help
    Ah...unfortunately he did not sign a check in inventory (silly me never again a friend)
    Thank you

    #2
    Unfortunately, you will have to refund the deposit in full to your friend if you are to avoid the potential of not only refunding the deposit to your friend, but a penalty of 3X the deposit AND your friends court costs - which could be high as the claim will not be held on the 'small claims track' (it is a 'part 8 claim').

    However, this will not prevent you from subsequently suing your friend in the small claims court for any loss that you can prove. Unfortunately, you will not be able to prove any damage issues (as you have no proof of the condition at the start of the tenancy). However, to prove missing rent (and lack of notice) should not be difficult.

    Did he have his own agreement, or was it a joint one with tenant 2?

    Comment


      #3
      I agree with Snorkerz. Refund the deposit, then bring a claim against T for the unpaid rent.

      Comment


        #4
        thank you for you quick response
        I had 2 separate contract for the 2 tenants. They started at different dates

        I have found details on forums that if a landlord has given back some of the deposit the x3 penalty should not be granteed.

        Also I have read that I could protect the deposit now in any case before the hearing

        Are these 2 statments wrong than?

        PS I have a check out ispection prior to the moment the tenant moved in. It was done by an independent agency. Also I had the flat completely re decorated before he moved in and can prove that. I also have taken a photo of every single damage done. Is it any use?

        Comment


          #5
          Originally posted by westminster View Post
          I agree with Snorkerz. Refund the deposit, then bring a claim against T for the unpaid rent.
          Where should I take my claim to? Is it a matter for small courts? Can I find a form anywhere?
          Thanx

          Comment


            #6
            If you retain all or part of the deposit, unprotected, you are exposed to a non-compliance claim.

            The only scheme which may protect the deposit after the tenancy ends is the DPS (http://www.depositprotection.com/). While a non-compliance claim will definitely fail if the deposit is protected, however late, during the tenancy, because of binding higher court judgments this year, there is no certainty over whether this extends to deposits protected after the tenancy ends.

            The check-out inspection for the previous tenancy and evidence of redecoration may be enough to support a claim for damage. However, you say rooms were let separately, so if any of the damage relates to communal areas (e.g. kitchen, hallway, sitting room) then how will you prove that the damage was caused by one T and not the other?

            You can start a claim via Money Claim Onlne. https://www.moneyclaim.gov.uk/web/mcol/welcome
            You should send T a letter before action first. I also recommend you buy a book on the small claims procedure; there are a few on Amazon.

            Comment


              #7
              Thank you West
              To answer your question, I have taken a small amount from tenant 2 deposit, she had a smaller room, she was there only for one year so I have calculate a percentage. She is happy with the outcome and admitted that she should have ask permission before drilling holes on the walls and that she generally agreed to what was broken. I mean I only took just over 100 pounds, should I go and redecorate that would have been much more

              Dont tenants have to leave the flat in the same condition they got it apart from the "normal wear and tear"?

              Comment


                #8
                On a second though, now that I have new tenants, should I use MyDeposit or DPS?
                I cannot get my head around it as fast as I need to do

                Comment


                  #9
                  Originally posted by BeSafe View Post
                  Thank you West
                  To answer your question, I have taken a small amount from tenant 2 deposit, she had a smaller room, she was there only for one year so I have calculate a percentage. She is happy with the outcome and admitted that she should have ask permission before drilling holes on the walls and that she generally agreed to what was broken. I mean I only took just over 100 pounds, should I go and redecorate that would have been much more


                  Dont tenants have to leave the flat in the same condition they got it apart from the "normal wear and tear"?
                  How do you let these two rooms? On Seperate ASTs? how are areas such as the kitchen/bathrooms etc demised?


                  Originally posted by BeSafe View Post
                  On a second though, now that I have new tenants, should I use MyDeposit or DPS?
                  I cannot get my head around it as fast as I need to do
                  DPS is probably the easier bet I would imagine.
                  [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                  Comment


                    #10
                    Originally posted by BeSafe View Post
                    On a second though, now that I have new tenants, should I use MyDeposit or DPS?
                    I cannot get my head around it as fast as I need to do
                    Use the DPS. It's simpler than MyDeposits and it's also free. (Remember you must also provide T with the 'prescribed information').

                    Yes, the principle is that T should leave property in the same condition apart from fair wear and tear.

                    Comment


                      #11
                      Originally posted by MrJohnnyB View Post
                      How do you let these two rooms? On Seperate ASTs? how are areas such as the kitchen/bathrooms etc demised?
                      It is a one bedroom flat and the lounge was used a second bedroom as the tenant could not afford full rent. But I will never do that again. Lesson learnt
                      I have now a couple.




                      Originally posted by MrJohnnyB View Post
                      DPS is probably the easier bet I would imagine.
                      Ah ok.... this morning a register with myDeposit the new tenant deposit and it was only after I realised they dont accept any from a terminated agreement

                      Comment


                        #12
                        Originally posted by westminster View Post
                        Use the DPS. It's simpler than MyDeposits and it's also free. (Remember you must also provide T with the 'prescribed information').

                        Yes, the principle is that T should leave property in the same condition apart from fair wear and tear.
                        so it is free ! I keep making mistake guys...feel really silly now!

                        I am still temped to protect the deposit for the troublesome tenant now. I know that you have advised to give it all back but it feel such a bulling act on behalf of a person who had abuse my trust and during this 2 and half years have also deducted money from rent all the time for things he broke or lost, removed furniture and behaved so badly ad the end. He cost me much much more for loss income that I could ever claim back
                        Also the flat need redecorating because of all the holes and patches

                        Comment


                          #13
                          Originally posted by BeSafe View Post
                          It is a one bedroom flat and the lounge was used a second bedroom as the tenant could not afford full rent. But I will never do that again. Lesson learnt
                          I have now a couple.
                          So you demised the whole premises to the first tenant and then demised again the extra living room, or did you demise rooms specifically between T1 & T2? The reason I ask is because this could potentially come up over any arguements you have - particularly if areas are confused.
                          [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

                          Comment


                            #14
                            The second option
                            During the 2 and half years T1 was there, 3 Ts were in the other room
                            (last did not even sign a contract..................but she was lovley...dont beat me up :-( !

                            Comment


                              #15
                              Originally posted by BeSafe View Post

                              I am still temped to protect the deposit for the troublesome tenant now. I know that you have advised to give it all back but...
                              We are not proposing that you do not claim for unpaid rent/damage. We are saying that it is safest to give the deposit back, then bring a claim against T for the unpaid rent/damage. (Instead of T claiming against you for return of the deposit/deposit non-compliance, and you counterclaiming for unpaid rent/damage).

                              Comment

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