Enforcing unfair contract terms via a guarantor

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    Enforcing unfair contract terms via a guarantor

    Hi,

    I reckon I need to talk to a solicitor about this one but I just thought I'd canvas other people about this first...

    We've been having problems getting our deposit back on a property we vacated a couple of months ago, the contract doesn't allow for wear and tear and so is unfair in our view (and the landlords trying to get us to pay for the carpets to be replaced).

    We've written to the landlord to point this out and threatened to take them down the small claims route, but they've come back saying that if we do that they'll just return our deposit and start action against the guarantor instead as the contract with the guarantor is a commercial one (and presumably the OFT guidance on unfair terms doesn't apply).

    If the OFT's guidance was introduced to protect tenants can it really be got around by threatening the guarantor instead?

    Any thoughts?

    Cheers

    Andy

    #2
    Yes, a few thoughts;

    1) I'm not sure if what they're threatening is legal/possible, but my gut reaction is that they won't bother. It's just a plot to get you to give up and leave them alone.

    2) Presumably LA does not have any of guarantor's money. So if they return your deposit, they will then have to go to small claims against guarantor. This is better than you having to go to small claims against them, especially if you are sure you are in the right. If you really are in the right, any court claim against guarantor will fail anyway.

    3) Your best option may be to negotiate. On what grounds are LA withholding your deposit?

    Peter

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      #3
      And the usual questions: was there an inventory, did it list the condition of the property, and did you sign it?

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        #4
        The contract does not need to mention 'fair wear and tear' as it is an implied term that it is allowed, if the contract is silent about it.

        Does the contract state that 'fair wear and tear' will NOT be allowed or that the condition of the flat will have to be immaculate at handover??

        As Surrey suggests, the LL will need to prove condition by a signed inventory from start of tenancy.

        I think the 'unfair terms' argument is BS.
        All posts in good faith, but do not rely on them

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          #5
          There is no inventory, landlord is claiming it doesn't matter as they can always get one from the building company they bought the house from (which conveniently is also run by the same guy who runs that landlord)

          They're also claiming they've previously followed the course of action I outlined in the initial post and won.

          Andy

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            #6
            Originally posted by AndyD View Post
            There is no inventory, landlord is claiming it doesn't matter as they can always get one from the building company they bought the house from (which conveniently is also run by the same guy who runs that landlord)

            They're also claiming they've previously followed the course of action I outlined in the initial post and won.

            Andy
            They may well be able to get an inventory from the building company. If they came to me, I'd give them an inventory. However they have no way to prove that the inventory they make up before a court appearance is a true and proper representation of the condition of the property as no-one else has seen it! For all we know, they could get the building company to say they put in gold-plated taps (and they might well have done) but when you rented it there were just bog-standard silver coloured ones. If YOU didn't see the inventory and if YOU didn't agree that it was a true and fair representation of the condition of the property, then he'll have a really hard job proving it. And in a court of law if there's no proof, then there's no case. So if you take him to court for return of your deposit then YOU'LL WIN.

            Just for the sake of discussion, let's now imagine that there WAS an inventory, which stated that at the beginning of a one-year tenancy he had new carpets that cost (to make the sums easy) £1000. Let's assume that these new carpets could reasonably be expected to last for 5 years before they need to be replaced. On his tax return your landlord WILL be claiming depreciation on the carpets, so in the first year they would depreciate in value by 20% (or some similar figure but let's go with that for ease) so at the end of the first year the £1000 carpets will now only be worth £800. SO... even if after one year YOU had TOTALLY TRASHED the carpets requiring them to be replaced, he would ONLY be able to claim from your deposit a maximum of £800 and NOT £1000, because that is all they would have been worth at the end of that year if you hadn't caused any damage, just used them normally for a year. That's depreciation, and it is expressly to take into account "wear and tear", the fact that things do wear out in the course of being used normally for whatever the thing is expected to be used for - in this case for walking on and for keeping on the floor of a house.

            No court in the land will accept, even in a case where there IS a signed inventory, that the tenant has to return a brand-new property in totally immaculate, unused condition at the end of the tenancy. For goodness sake, you're paying RENT to be allowed to use the property, and that rent is expected to cover depreciation (explained in the previous paragraph). IF a landlord tries to claim money from a tenant that will make his property BETTER than it would have been if, say, the landlord himself had lived there, that is called "betterment" and no court will allow it.

            Does that put your mind at rest? Ask your landlord to return your deposit within a reasonable time (and 14 days is reasonable as he's already had it for a couple of months) and mention to him that if he doesn't you will have no choice but to take the matter to court, which will cost him not only the money owed but court fees and interest. If he doesn't, then don't bother contacting him again, just issue the court papers and let him pay extra for the privilege of not doing the right thing properly. If you do take him to court don't forget to include a claim for interest on the money he's been holding, dated from the day after your tenancy ended.

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              #7
              A deposit isnt an insurance policy new for old, also if he gives you your deposit back surely he is saying there is nothing wrong with the property and it would be very differcault to then go to court and say i want money from the guarentor i would think the judge would throw it out.

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                #8
                They are playing the oldest trick in the book; praying on your fear of having to go to court, even though they only have a cock and bull story.
                All posts in good faith, but do not rely on them

                * * * * * ** * * * * * * * * * * * *

                You can search the forums here:

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                  #9
                  Thanks for the advice, I was already familiar with some of it and my view is they're just trying it on.

                  I've also talked to a solicitor regarding the guarantor responsibility and they've given me their thoughts on how to handle it, perhaps the most important point they made is that the unfair contract act does apply if the guarantor is an individual.

                  Andy

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