Deposit Perscribed Information never received or signed

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  • Deposit Perscribed Information never received or signed

    Hi there,

    I just wanted to find out what's what regarding not receiving Perscribed Information during a tenancy?

    I have moved out of the flat I was renting on 10/4/12. The contract started on 10/4/09. The Landlord wants to take the full amount on claims that are unfounded. No inventory was signed, no check in or check out was done.

    I have since checked and the deposit was registered with mydeposits, within the 14 day time period. No information was supplied to me however, and I never signed a certificate, despite asking for one.

    Now, the problem I have here is there have been multiple breaches of the contract on the Landlords part, and one on my part. The landlord didn't fix the toilet for over a year despite constant hassle, so we had no toilet for a year. Luckily we had nice neighbours... Electricity regularly went out, as the propety had a prepay meter that was inaccessible to us, and the landlord regularly appeared without notice, came into our flat and took pictures without any notice and took things from our flat (they were his but they just would disappear one day)

    Our breach is: Section: 17.10 - The landlord shall not be obliged to refund the deposit or any part of the deposit during the term as a result of any change in the person or persons who are named as the tenant.

    One of us moved out, so I got someone else in to the room. I did notify the Landlord, but only over the phone and they said that was fine. No new contract was drawn up.

    Do i have anything to work with here or is it a lost cause? Any help is greatly appreciated.

  • #2
    Without a check-in report/evidence of condition at the start of the tenancy, LL will struggle to prove any claim for deductions from the deposit.

    You haven't breached the clause you quote; it merely says that LL doesn't have to refund the deposit if there's a changeover of one of the joint tenants during the tenancy.

    You need to give us more info:

    1) What date did the most recent fixed term contract commence?
    2) What was the length of term and was an 'end' date specified?
    3) Rent payable monthly?
    4) How many tenants were named on this contract?
    5) What date did the tenant who moved out do so?, and did he serve any written notice on LL?
    6) You appear to be saying that the tenancy has ended - ? How did it end? Did you and/or another tenant serve notice? If so, what date was it served and what date did it expire?

    Comment


    • #3
      Originally posted by westminster View Post
      You haven't breached the clause you quote; it merely says that LL doesn't have to refund the deposit if there's a changeover of one of the joint tenants during the tenancy.
      And thee wasn't a change of tenants - a change of occupiers maybe, but not a change of tenants. Without a deed of assignment the original tenant remained a tenant until you left.

      Comment


      • #4
        Hi there, thanks for replying.

        1/2. The contract was a fixed term 3 year contract, so from 10/4/09. I stayed for the entire term, and didn't resign. The end date was 10/4/12
        3. Rent was 910 per month. Never missed payment once.
        4. 2 tenants were named on the contract
        5. The other tenant moved out December 10th 2010. He gave the Landlord notice, but I wasn't involved in that so I am unsure if he gave written notice. I'm going to guess he didn't. The new person started living there from the next day.
        6. The contract came to an end. 2 months before the end of the contract I was asked if I wanted to stay and I declined.

        Comment


        • #5
          Originally posted by Jamtree View Post

          1/2. The contract was a fixed term 3 year contract, so from 10/4/09. I stayed for the entire term, and didn't resign. The end date was 10/4/12
          Did the contract actually specify this as the end date? As that's a term of 3 years and 1 day (and the contract should have been executed as a Deed).

          4. 2 tenants were named on the contract
          5. The other tenant moved out December 10th 2010. He gave the Landlord notice, but I wasn't involved in that so I am unsure if he gave written notice. I'm going to guess he didn't. The new person started living there from the next day.
          6. The contract came to an end. 2 months before the end of the contract I was asked if I wanted to stay and I declined.
          As Snorkerz says, unless the changeover was made formally by a Deed of Assignment, the tenant who moved out remained as one of the legal tenants. The new occupier was never a legal tenant.

          If you claim in the county court against the LL you would have to bring the claim as co-claimant with the other tenant named on the contract (i.e. the one who moved out).

          Assuming you/LL cannot agree on the deductions, firstly raise a dispute with MyDeposits, and if LL agrees to use their adjudication service it's very likely you will be awarded the deposit.

          Aside from this, you have no claim in terms of claiming for non-compliance with deposit protection (i.e. not receiving the prescribed information) as the tenancy has ended. (The law is just about to change on this score, at the end of next week, so the same situation would not apply to your next tenancy).

          The landlord didn't fix the toilet for over a year despite constant hassle, so we had no toilet for a year. Luckily we had nice neighbours... Electricity regularly went out, as the propety had a prepay meter that was inaccessible to us, and the landlord regularly appeared without notice, came into our flat and took pictures without any notice and took things from our flat (they were his but they just would disappear one day)
          As for disrepair, a year without a loo is no small inconvenience and you (and the other tenant) might well have a viable claim for damages, (assuming you have good evidence to support the claim), however, if the claim is over £1,000 it would not be allocated to the small claims track and you'd need to pay a lawyer to conduct the case; there would also be high court fees and exposure to the LL's legal costs if you lost. Don't know whether damages for the other complaints would amount to much, and not worth adding them if it made the claim exceed £1,000.

          BTW, you would have been entitled to change the locks to prevent LL's unannounced visits, so long as you kept the originals and reinstated them before the end of the tenancy.

          Comment


          • #6
            Thank you so much for all the help, it makes sense to me. I think I am not going to worry about the toilet, I did live through it, and while an annoyance it might be more hassle then it is worth. Looking into the dates, it looks like the start date was 11/4/09 instead of 10/4/09.

            So am I right in saying that the clause in the contract regarding tenants leaving etc won't have an affect on the dispute?

            Another question I have, the LL put forward claims for more then the deposit's worth. If I went to dispute and ended up loosing, would the adjudicator be able to award the LL more then the deposit? I'm guessing this is a yes in the case of a court. Unfortunately my evidence is limited to a contract, and me saying that things were the same (minus fair wear and tear) when we moved in. There's no inventory, but don't have photos of the place at the start of the tenancy.

            Finally, does it change much if it goes through court as opposed to adjudicator. If it went to ADR I think I'm in good standing, but court, I'm not so sure. Seems more unpredictable. If the LL refuses to go via ADR do I have to go through the court?

            Thanks again for the help.

            Comment


            • #7
              Originally posted by Jamtree View Post
              So am I right in saying that the clause in the contract regarding tenants leaving etc won't have an affect on the dispute?
              None whatsoever.
              Another question I have, the LL put forward claims for more then the deposit's worth. If I went to dispute and ended up loosing, would the adjudicator be able to award the LL more then the deposit?
              No.

              I'm guessing this is a yes in the case of a court.
              Yes.

              Unfortunately my evidence is limited to a contract, and me saying that things were the same (minus fair wear and tear) when we moved in. There's no inventory, but don't have photos of the place at the start of the tenancy.
              The deposit is your money. The onus is on the landlord to prove that he has suffered a loss. Without any evidence of condition at the start of the tenancy, the LL will struggle to prove you are liable for any alleged damage. He needs before/after evidence, otherwise, the alleged damage could well have been there when you first moved in.

              Finally, does it change much if it goes through court as opposed to adjudicator. If it went to ADR I think I'm in good standing, but court, I'm not so sure. Seems more unpredictable.
              Same principle either way. LL must prove his claims.

              If the LL refuses to go via ADR do I have to go through the court?
              Yes. You (and the other tenant) would claim for the return of your deposit, and LL would then have to counterclaim for the alleged damage. Or, if LL started the claim, you'd counterclaim for return of the deposit.

              Comment


              • #8
                Here is the latest email I received regarding this:

                Hi James

                I have discussed your deposit with LL and she has sited the following sections in your contract - please see: Pages 9 & 11
                Section :11.2 - of your tenancy agreement: to allow the property to be viewed at all reasonable times during normal working hours between 9am and 8pm by prier mutually convenient appointment or on reasonable notice either via tenant or with keys during the last 2 months of the tenancy following a request by any person who is or is acting on behalf of the landlord or the agent and who is accompanying a perspective purchaser or tenant of the property.

                Section: 17.10 - The landlord shall not be obliged to refund the deposit or any part of the deposit during the term as a result of any change in the person or persons who are named as the tenant.

                LL has highlighted the property was not in a fit state to be viewed within the last 2 months of tenancy for prospective tenants as stated in section 11.2 of your contract (above) this has and will lead to loss of earnings for LL. If you wish to fight this further she is happy to go ahead. As LL has shown you are clearly in breach of your contract and if you would like LL not to take this further please confirm with the agent you agree to release the deposit to her without delay to avoid her any further loss of earnings, as you are aware it has been left in an unfit state to be view or occupied.

                Regards
                LL


                I'm feeling it is probably a dead end to try and discuss with the LL anymore about this. There wasn't any request to show the propety to prospective tenants, as there was already someone lined up to take the property, who is in there at the moment. Do I email the LL to say that what they have stated has no affect on the dispute and try to discuss further, email them to tell them I will be taking it to dispute, or should I consider just going ahead with the dispute without further contact?

                Comment


                • #9
                  Further to this, having looked at the actual contract, The LL has not signed it. Does this bear any weight in this at all. I have my copy and asked the estate agent to send one through. They did, they sent through a scanned contract, which has my signature and the other original tenant's signature, but no LL signature in their section. Wondering if this changes anything?

                  Comment


                  • #10
                    Originally posted by Jamtree View Post
                    LL has highlighted the property was not in a fit state to be viewed within the last 2 months of tenancy for prospective tenants as stated in section 11.2 of your contract (above) this has and will lead to loss of earnings for LL. If you wish to fight this further she is happy to go ahead. As LL has shown you are clearly in breach of your contract and if you would like LL not to take this further please confirm with the agent you agree to release the deposit to her without delay to avoid her any further loss of earnings, as you are aware it has been left in an unfit state to be view or occupied.
                    Note, Clause 11.2 merely requires you to give reasonable access for viewings. Nothing about the property being in a 'fit state to be viewed' (though such a clause would be unfair/unenforceable). And you say there weren't even any requests for viewings!

                    Your tenancy ended on 10th April, two weeks ago. You say a new tenancy has already begun, so it would appear to be ludicrous for the agent to suggest that there was any delay in re-letting or consequential loss.

                    After a three year tenancy a LL may reasonably expect that the rental property would need a bit of sprucing up before reletting, as there will inevitably be a significant degree of wear and tear after such a long tenancy.

                    Also utterly ludicrous to suggest that your refusal to release the deposit (a.k.a. your money) to the LL is causing LL her 'further loss of earnings'.

                    No idea why they are quoting clause 17.10 or what point they think they're trying to make??

                    I'm feeling it is probably a dead end to try and discuss with the LL anymore about this. There wasn't any request to show the propety to prospective tenants, as there was already someone lined up to take the property, who is in there at the moment. Do I email the LL to say that what they have stated has no affect on the dispute and try to discuss further, email them to tell them I will be taking it to dispute, or should I consider just going ahead with the dispute without further contact?
                    I agree they sound both clueless and unreasonable, and I doubt you'll get anywhere in terms of trying to settle.

                    Have you, BTW, even been given a breakdown of the alleged damage? e.g. a list of things LL says you've damaged and a quote for the cost of repair for each item. Or is it all just vague claims of loss of earnings as per the latest email?

                    I would write a short email saying that you deny liability for LL's alleged losses, you refuse to agree to release the deposit, and state that if the deposit is not returned in full by [date] you will raise a dispute with MyDeposits. (The scheme will have a timescale after which you can start a dispute, maybe two or three weeks - check with the scheme).

                    Comment


                    • #11
                      Originally posted by Jamtree View Post
                      Further to this, having looked at the actual contract, The LL has not signed it. Does this bear any weight in this at all. I have my copy and asked the estate agent to send one through. They did, they sent through a scanned contract, which has my signature and the other original tenant's signature, but no LL signature in their section. Wondering if this changes anything?
                      No. Irrelevant.

                      Comment


                      • #12
                        Here's the breakdown:

                        £575 to replace carpet. Unfortunately must be replaced as the smell is
                        rancid, obviously never been cleaned in 3 years.


                        The flat wasn't cleaned upon start of tenancy and the carpets were already horribly marked.

                        Coin meter was installed then smashed by tenant = £300 (including
                        fitting) will provide damaged coin meter upon request, I kept it as proof.


                        This was broken when we moved in. By smashed the LL means the tumbler was not fixed and could be removed freely. We let them know, and they decided to change it about half way through the tenancy but it was as described.

                        Price of painting front room to standard = £300 was painted pink by tenant
                        then covered up terribly, as photos show. Not as when moved in.


                        Hold my hands up to this one. The first other tenant did this. I won't be disputing this one.

                        Cooker broken = £250/300 held together with masking tape? ( please see photo's) must replace.

                        Again, was already like this upon moving in, held by the same masking tape they mention. It's the cover at the bottom of the cooker and they are asking for a full replacement? In the same condition as when moved in.

                        Replace Vinyl floor torn in kitchen £100 - £200 (not ware and tear in both contractors opinions)

                        Again, was as such when moved in. Aggravated by water damage from a pipe leak which the LL didn't fix for 4 months.

                        Throughout they have been clueless to many things. A year without a toilet is one such example, not allowing access to the pre pay meter which led to actual loss of earnings for me as a freelancer without internet or electricity for days at a time being another...

                        Comment


                        • #13
                          You have nothing to worry about. If everything was already damaged, then you obviously aren't liable, and the LL has no evidence of original [allegedly undamaged] condition.

                          Any idea how old the decor was when you first moved in? Was it already 'tired'? Even if it was newly painted, you are not liable for the full cost of redecorating the front room, because the LL is not entitled to 'betterment'.

                          For example, let's says that the room was newly painted when you moved in, and let's say that LL would normally expect to have to redecorate every five years or so due to fair wear and tear; therefore LL's 'loss' is two years' worth of 'use' - i.e. 40%. So you'd be liable for 40% of the cost of redecoration.

                          But from the sound of it, the property wasn't newly done up when you moved in, so chances are you're not liable for any portion of the redecoration cost.

                          Given that LL was clearly in breach of LL's repairing obligations, I would write back to agent (cc to LL) along the lines of:

                          Dear Agent,

                          Under clause 11.2 of the contract, we were required to give reasonable access for viewings. As you are aware, no such viewings were requested. Under clause 17.10 the LL shall not be obliged to refund the deposit mid-term. The tenancy has ended and the deposit is now refundable.

                          The tenancy ended on 10th April 2012. The property was immediately re-let and the new tenancy has commenced. We deny any claim for alleged 'loss of earnings'.

                          We also deny liability for the alleged damage. This was all present at the start of the tenancy and we put the LL to strict proof of her claims.

                          We admit that we repainted the front room without LL's consent. However, the LL is not entitled to betterment, and as the decor was approximately X years' old at the end of the tenancy, and would normally be expected to last X years before requiring repainting due to fair wear and tear, the LL is only entitled to a percentage portion of the cost of redecoration, which we calculate at X%.
                          [hopefully this % figure would be zero!]

                          Please note that LL breached her repairing obligations under s.11 Landlord and Tenant Act 1985 as follows:

                          1) Broken toilet: this remained unrepaired for in excess of one year, between [date] and [date].
                          2) Leaking pipe in [location]: unrepaired for four months, between [date] and [date].
                          3)
                          [etc, etc, insert list of any other disrepair, with dates]

                          In addition, the LL habitually breached the covenant of quiet enjoyment by entering without our consent; she took items of furnishing from the property without our consent; we had no access to the electricity prepay meter and were thus left without electricity for extended periods of time on many occasions.

                          In the circumstances, we refuse to agree to release the deposit to the LL. If the deposit is not refunded to us, in full, by [date], we will raise a dispute with the deposit protection scheme and will be happy to have the matter settled via their adjudication service.

                          In the event that LL pursues any court action for alleged damage and loss of earnings, we shall have no option but to counterclaim not only for the deposit, but for the LL's numerous breaches. We would also be seeking our legal costs.

                          Yours etc.
                          Note, I don't necessarily recommend that you counterclaim for the disrepair etc, but you can certainly use the threat of it.

                          If, following this email, LL doesn't release the deposit by the deadline, raise a dispute with the scheme. But hopefully it'll have the desired effect, i.e. to get your deposit back and move on.

                          BTW, it's a shame you didn't post here earlier in the tenancy. There are things you could have done about the broken toilet rather than using the neighbour's for a whole year... E.g. reported LL to the Environmental Health Officer at the local council, or followed a procedure for carrying out the repair yourself and deducting the cost from the rent (N.B. the latter's a fairly long winded, strict procedure, involving much letter writing to LL before you could go ahead, but a lot, lot quicker than a year).

                          Comment


                          • #14
                            Hi there,

                            Quick update. The Angent replied this morning with this:

                            Dear All,

                            Thank you for your email. Just to clarify, as your landlord manages your tenancy directly, we are unable to engage in deposit negotiations, we simply hold the deposit and upon written agreement from both parties, release the funds accordingly. You will need to liaise with your landlord directly to come to some sort of agreement.

                            If you are unable to reach an agreement you have the right to raise a dispute with MyDeposits [www.mydeposits.co.uk] within 90 days of the tenancy ending.



                            I CC'd in the LL email to the email I sent to the agent. Should I send the email again to the LL now, or just wait to see what happens seeing as they will have seen the email too.

                            Thanks again.

                            Comment


                            • #15
                              I do hope you filled in all the dates and substituted numbers for the Xs etc - ?

                              What did you put for the X's in the paragraph about the decor?

                              Interesting how the agent is suddenly unable to engage in discussions, after he was the one who emailed you referring to the clauses in the contract etc.

                              If you cc'ed the LL you don't need to send it again.

                              Comment

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