My Tenant Is Threatening Legal Action Because I Didn’t Secure The Deposit

I could throw a stone in the middle of a landlord conference (who actually goes to those things? Maybe a blog for another day) and probably hit a landlord on the head that’s either been through it, going through it, will eventually go through it, or at the very least, unknowingly harbouring a tenant that’s looked into it.

Rightly or wrongly so, we’re being hunted down like rabid dogs for failing to comply with the tenancy deposit legislation. We’ve become such easy and profitable targets that specialised ‘tenancy deposit claim management’ divisions are popping up all over the place, to assist in the management of dragging and encouraging dormant tenants to claim their unclaimed fortunes. How fucking generous of them.

Business is BOOOOOOOOOOOOOMING!

Every landlord should unequivocally comply with their legal obligations, even the policies that are more ghastly than the boils on your mum’s sloppy face. And while so many try to use ‘ignorance of the law’ as a defence (from my experience, that’s the most common excuse), legitimately or otherwise, it’s still (and always will be) pointless to even mutter the words. Save your warm, unsavoury and moisty breathe for your spouse.

But on the other hand, I’m finding it impossible to empathise with those dick-face tenants that are taking advantage of ignorance purely out of greed. Don’t get me wrong, unscrupulous landlords deserve for their profits to be drained like a large infected cyst, and compensation should be allocated fairly to those that suffered as a consequence. But sadly, there are too many cases surfacing whereby good landlords, but foremost genuine people that are only trying to do good, have been threatened and prosecuted by an academy of asshole tenants that are sniffing around a quick paycheck. Spineless leeches!

Our Landlord didn't secure deposit
Introducing the tenancy deposit legislation was a good move to protect both tenants and landlords, but as it currently stands, as with many legislations that are hashed together by servants whom are completely inexperienced and have no practical knowledge of how the relevant realm works, the finished product seems like it’s lined with clunky congealed skid-marks. Who approved this shit?

It’s clearly ridiculously too damn easy for undeserving prosecution, which has resulted in a long queue of tenants rubbing their grubby little mitts together and practically begging for landlords to fall-short of their deposit obligations, because it’s like a winning scratch card. That can’t be right, not on any level.

So this blog post is aimed at helping those “good” landlords caught up in the struggle. Stay strong, my brothers! Stay strong!

The Tenancy Deposit Legislation

Ok, so let’s go over this really, really, really, really, really, really quickly, because I’ve already covered the what, where and how’s in-depth, over at the Landlord Tenancy Deposit Guide blog post.

Obviously, complying with the tenancy deposit legislation from the offset, which is covered in Section 213 of the Housing Act 2004, should be Plan A:

  • This legislation applies to every landlord in England and Wales that has taken a deposit from a tenant under an Assured Shorthold Tenancy Agreement.
  • Securing the deposit: the deposit must be protected with in 30 days of receiving it.
  • Serving the Prescribed Information: after the deposit is secured, Prescribed Information must be served to the tenant, also within 30 days.
  • Late compliance: unfortunately, you’re still a target if you’ve secured the deposit and/or served the Prescribed Information after the 30 day window!
  • Landlord’s responsibility: it’s ALWAYS the landlord’s responsibility to ensure the deposit legislation has been complied with correctly. Don’t rely on your agent for anything, they won’t be held accountable.

The penalty for failing to complySection 214 of The Housing Act 2004 states that IF a Judge is satisfied there has been a breach they MUST sanction the landlord to cough up between 1 and 3x the deposit for each tenancy and also return the deposit itself. Ouchieeeee! Not to mention, you’ll also be unable to serve a valid Section 21 notice, which is arguably a shit-ton worse on every level!

If you’re sitting there hearing screeching noises as your stomach is avalanching out of your anal-cavity, and with your hands over your eyes and gob wide open, because YOU KNOW you’ve failed to comply, you may want to read the stone-cold reality of your situation over at the ‘I haven’t protected my tenant’s deposit‘ blog post to help plan your next move. I’m sorry to say, you’re in a pretty unforgiving situation, so the options ain’t pretty.

In short, if lady luck is on your side, your tenant’s kind nature or ignorance will allow you to tip-toe away unscathed. But ya’ know, if they eventually cotton on… don’t be surprised if your ‘perfectly reasonable tenants’ quickly turn against you and suck-the-living-shit out of you after uncovering the treasures that await them. There’s something very zombie’ish about tenants turning once they become enlightened.

My tenant is threatening to take legal action against me, what can I do?

Important disclaimer: before continuing, I must clarify, the following is NOT legal advice. Say it out loud, “NOT LEGAL ADVICE”… SAY IT!!! If you’re after professional legal advice, please speak to an extortionate Solicitor that specialises in landlord law. The following is purely based on personal experiences and hearsay…

If you’re currently caught in the cross-fire, the odds are it’s because your tenant(s) has discovered you’re ripe for prosecution due to your failure to comply with the tenancy deposit legislation. With their beady little eyes firmly on the prize, they’ve probably contacted you demanding compensation, typically somewhere between 1-3x the deposit value. Of course, it’s almost always x3 because they’re ambitious, they want the jackpot, and after a chat with their mate down the pub and/or doing their ‘online research’ they probably believe that’s what they deserve can get away with. And hell, why not reach for the stars? But what’s most worrying and disappointing is that many tenant’s chase after the easy money despite the fact they’ve benefited from a perfectly reasonable landlord throughout the tenancy, so that’s why many landlords are often caught blind-sided by what is quite frankly, daylight robbery. They may as well have posted this through your letter box:

give-me-money

I can only urge all tenant’s in that position to side-step and forgive by asking for the deposit back in full, and then by then making a strong vocal point. Hopefully lesson learned.

With that said, the following advice is suitable for those good landlords that are genuinely being taken advantage of by the money-grabbing parasites that don’t have the moral fibre to put their foot on the breaks…

Ultimately, your objective at this point should be to avoid Section 214 Housing Act Deposit Protection Penalty Sanctions.

Bu…bu… BUT my asshole tenant has also breached their tenancy obligations!

Ok, I hear this all the time! What a classic.

At this point, many landlords will frantically splash around, trying to kill the situation by pointing out their opponent’s shortcomings (i.e. “my tenant has fallen into rent arrears”, “my tenant shat on the carpet” etc), hoping for a ‘get out of jail card’. Unfortunately, focusing on someone else’s wrongs to mask your own is as embarrassing and futile as it sounds.

You need to understand that you’ve been a rat-weasel, you’ve done wrong. You are liable for prosecution, so right now it’s only a question of how little you pay.

Minimising costs & Settling

Ok, so… credit where credit due, the following is largely taken from Comment #226 over at the “I Haven’t Protected My Tenant’s Deposit, What Should I Do?” blog post, by an extremely generous, experienced and knowledgeable contributor, David. So a big thank you very much! The following will be a hybrid of David’s sound advice and my own toxic interference…

The reality is, the tenant just wants paying off; they usually have no intentions of escalating the situation to court (because that can be expensive, not to mention a whole heap of hassle). What they want is some free money, and the legal threat is an attempt to reduce you into a whimpering little girl and lure you into submission.

You have three options:

  • Pay what they demand
  • Fight in Court
  • Negotiate

If they’re asking for just 1x the deposit, it might be wise to begrudgingly pay up and move on with life, with the experience of knowing better for next time. No doubt, that might still hurt like a sledgehammer to the nuts, but it really is an easy escape from what can potentially be a very firm and prickly grip. However, if the amount they demand seems totally unreasonable (you may want to assess your performance as a landlord at this point, and be honest with yourself), negotiating is usually the way to go

After receiving the threat, you should respond swiftly. You should write your response knowing that a Judge or Mediator may look at it; that means you will want the Judge to see that you are the fair and reasonable person, while the tenant is nothing but a mumbling buffoon, using the Court to decapitate your wallet for some easy cash.

You should start with a letter expressing your complete astonishment and surprise. I would send something like this:

Negotiation Response 1

Dear [Tenant name(s)],

I was most perturbed to receive your letter before action considering I felt that we had a good Landlord and Tenant relationship, with no major problems on either side.

To be honest I was in complete astonishment and surprise because your letter before action was not preceded by any claim, nor a Part 36 offer of settlement, nor any suggestion of mediation.

I do regard this threat of legal action as vexatious and without merit, but I would like to keep things amicable and avoid wasting the Courts time. I am reliably informed that a Judge would view this for what it is; a frivolous attempt to extort money from me, using their Court in an inappropriate way.

At this stage I would like to ask you to reconsider your proposed Court action and agree a settlement with me; that being a positive letter of reference and the sum of £[insert low-ball offer, less than half of 1x deposit] as a gesture of good will with no liability accepted as full and final settlement of this matter.

I hope that you give this kind offer your serious consideration.

Yours sincerely,
[Landlord]

The low ball offer is to bring the leech tumbling back into reality (assuming their initial settlement fee was OTT). They will most likely reject your offer, which should definitely come as no surprise, because you’re dealing with a donkey that’s an utter chancer. In any case, now you’re dancing/negotiating. In response, they may ask for 1x the rent, which you may want to settle with, but they may play hard ball and ask for 2x the deposit. If they do the latter, I would reply with the following:

Negotiation Response 2

Dear [Tenant name(s)],

I am in receipt of your recent offer to settle this matter for 2x the deposit. I am sorry but I cannot accept this as the facts of this matter do not reflect the gravity of such a sanction.

There was no animosity between us, any repairs were carried out promptly and overall I was an excellent Landlord. I am reliably informed that a Judge will take into mitigation the fact that I am a novice Landlord, [and that I quickly protected the deposit in an approved scheme as soon as I became aware of my unattended oversight].

I have refunded the deposit to you in full despite the fact there were a number of issues with the way you left the property that were beyond wear and tear. I did this because I thought we had a good landlord/tenant relationship.

As I explained recently, I feel it is grossly unfair that you try to extort money from me, and whilst I am keen to keep things amicable, I will only agree to a settlement that is fair and reasonable. To this end I am prepared to provide the positive reference offered previously and increase my offer to £[no more than 1x deposit] as a gesture of goodwill in full and final settlement with no admission of liability.

I hope you will give this serious consideration so we can end this unnecessary hostility.

Yours sincerely,
[Landlord]

They may accept or they may try again. In any negotiation you have to give small amounts slowly and usually in response to something given by the other side. They will no doubt give reasons for why you should pay more, but if they don’t, then they are really showing they are weak. SO WEAK. WEAK LIKE… I don’t know… weak like your stomach after digesting an out of date pork-chop.

So be ready to offer incremental amounts, and then a final offer of no more than 1x – 1.5x deposit (or whatever you’re comfortable with), because at some point you have to draw a line in the sand and be prepared to call their bluff. It is your money and your risk appetite that matters here.

A Judge can decide anything they like within the legislation, but a lot of them get pissed off when it’s obviously just about the money (which is often the case). They have a huge case load; some may even kick the case out and force you to go to mediation. They may even say the tenants have to pay for that because you have tried 3-4 times to settle (that’s why it’s important to try and fairly negotiate).

This is ultimately a game of poker, your tenants know you have a potential liability, but you know you have mitigation; depending on their case, they may not get costs unless this goes to appeal, and that is going to be expensive for them upfront with no guarantee of success. That can be a powerful deterrent for the donkey to proceed.

If a settlement is agreed

Hopefully a fair settlement can be agreed. If that’s the case, it should be documented and laid out with a heading of “Settlement Agreement”, and it should clearly state that the settlement is the ‘full and final settlement’. The document should then be signed by all tenants. I’m currently working on getting an example Settlement Agreement as an early Christmas present from me to you, so sit tight for that! It’s all about love around here.

Correspondence

It’s important to send all correspondence through assured means. That could include all of the following…

  • Sending letters with recorded delivery
  • Delivering a copy by hand through the letterbox, while video yourself doing it
  • Sending it via email with a PDF version attached for good measure. The subject of the email should be “Formal Response to Letter before Action”

Every case is different

The problem with these cases is that they can come from 20 different angles; and the law has been amended so many times by statute and case law that it is a dog’s dinner. So while the advice above may not be entirely relevant or fitting to your particular case, I think the key takeaways are:

  • If you’ve been a good landlord, negotiate… do everything you can to settle!
  • If you feel your tenant wants a reasonable amount of compensation from the offset, you’re probably better off paying and considering yourself a little lucky sausage.
  • Ensure you are being fair and reasonable at all times; suppress your anger and frustration if you need to.
  • Always respond quickly, and send all correspondence through assured means.

Before deciding to take legal action!

A word of caution to any Landlord or Tenant thinking of taking legal action; it can cost you £8k to £10k if you get a belligerent opponent who takes this to appeal, employs a barrister and wins. So to emphasise…. the purpose of this blog post is to encourage all parties to settle, settle, settle!

So, anyone going through this dilemma, or been through it? What’s your story? Can you provide further advice? TELL MEEEEEEEE! TELL MEEEEEEE! xoxo

237 Comments- Join The Conversation...

Showing 187 - 237 comments (out of 237)
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David 16th August, 2017 @ 12:26

@shell

Get agreement in writing with Settlement Agreement at top.

Biggest issue with fridges is people turn them too high and ice block forms in back, they need to be turned off for minimum of 24 hours so it melts, then turned back on at low setting. If Ice has not melted might need 48 hours. Worth getting a fridge thermometer from Wilkinsons for £2 so you can actually track temp.

Of course it could just be faulty (gas or thermostat).

A friend of mine gets all his tenant white goods from Freecycle, he stores them in his garage till they are needed.

Yep one persons idea of "property is fine" can mean a very different thing to another persons.

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shell 16th August, 2017 @ 14:14

Thanks David i appreciate the advice

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shell 16th August, 2017 @ 20:14

David on getting out the lease to write out settlement agreements i have discovered they both co signed a lease with an agreement of 1000£ deposit. tenant A has agreed to sign a full and final settlement. if tenant b refuses to settle where would this leave us? the deposit was paid by tenant As parent by bank transfer with the assumption tenant b repaid her half (we have no evidence or confirmation of this). do they still have a case under lead tenant clause? (tenant A and B are at odds and not speaking) just wondering where i stand before i send the settlement offer.

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David 16th August, 2017 @ 22:13

@shell

That is why I asked you before, Civil Procedure rules state that all must be parties to the claim, however....

19.3

(1) Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19#19.1

There are ways around this, if Tenant A provides a witness statement giving authority to Tenant B to act on their behalf, this is exactly what happened in this case:

http://www.bailii.org/ew/cases/EWCA/Civ/2011/604.html

The reason for both parties needing to be claimants is usually because of risk of costs etc.

So you want to tie down Tenant A in a separate agreement first.

That will snooker Tenant B and if they are not talking then it should be easier.

One way to convince her is to say that by agreeing a settlement you indemnify her from your claims against the other tenant.

In the event that Tenant B tried to make a claim you would quote the above case law and ask for it to be dismissed, giving them a copy of the tenancy agreement with both parties.

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shell 16th August, 2017 @ 23:10

So if tenant A signs a full and final settlement tenant B cannot make a claim?

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vic 17th August, 2017 @ 11:08

Hi, Please advice on the claim from previous tenant. I've received pre-action letter. History: Tenancy started in Nov 2011 for 1 year, after that turned in to contractual periodic as per the close in AST agreement and continued as periodic until Sept 2016 at which point we signed new AST agreement for 6 month, as tenant was planning to move out. After March 2017 tenancy turned in to periodic again for further 3 month. Deposit was protected both times for the duration of AST terms, but I only issued prescribed information in 2016 when signing new 6 month AST. Tenancy ran with no issues for 6 years and here i get pre-action letter.
Pre-action letter from some deposit advice co states that they are putting forward 4 claims for each time PI was not given to tenant:
1st - in 2011 on initial 1 year AST
2nd - in 2012 when AST turned periodic
3rd - in 2016 on new 6 month AST (for this I have signed certificate and all information in place)
4th - in 2017 when AT turned periodic again.
So they are asking to settle with 4x times deposit as compensation and deposit itself.
Can they legally win 4 different claims.
Also, this property was not main residence for named tenant on AST, of which he asked me to provide him letter so council does not chase him for council tax. He rented the house for his partner and kids. I've read somewhere Deposit protection does not apply to AST for not main residence???? Not sure if this outlined in any Law, Act
Any advice, help is most appreciated.
Thanks
vic

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David 17th August, 2017 @ 12:08

@Shell

Yes, unless the Judge allows it but I doubt that would happen, the case law started out as being rejected until the tenant got the permission. So CPR rule is intact.

I would focus on Tenant A.

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David 17th August, 2017 @ 23:23

@Vic

Sorry Vic, the only exceptions are Lodgers and Holiday lets, you say you signed AST's. The only reference I have seen to "main residence" is on the GOV.UK website, I think they were referring to holiday lets because the legislation is clear about Assured Shorthold Tenancies.

For the sake of other Landlords; WHY OH WHY DO YOU BOTHER WITH NEW AST's?

Either extend the one you have so it is one agreement or allow it to go periodic as soon as it expires, the latter means you only ever have to give the S21 and 2 months notice.

Until October 2018 YES it will be possible to have multiple claims, the reason for this is that there were numerous changes of law and a plethora of case law and law applies as a snapshot in time for each agreement. So if you are unlucky enough it is indeed possible for some landlords, but perhaps not you.

One bit of good news is that the Deregulation Act 2015 put an end to the requirement to re-issue PI for Statutory Periodic, depending on the date(s) of the tenancies. Of course they left in the obligation to give an updated How To Rent Document before an S21 can be issued. That "end" applies to all tenancies in place in October 2018, not to historic ones that have ended but not yet claimed for, the law will try to apply the rules as they were at the time.

So that, at the very least, blows the 4th out of the water because the 2nd of your tenancies was in force in Oct 2015 when the deregulation act came into force. The 3rd gets the penalty but the 4th is considered the same as 3rd. If you had left the original tenancy in place with extensions until Oct 2015 then you would only be facing 1 sanction.

If it WAS only PI then it is very hard to prove a negative, how do you prove something did not happen, it is your word against his.

I have seen cases where a Judge has said "Well I find the deposit was protected from beginning to end and that is what is important". The tenant could have appealed but chose not to, that was more luck than anything.

When we come to the PI there is some overlap in some documents, years ago Landlords usually provided the information specified here:

http://www.legislation.gov.uk/uksi/2007/797/article/2/made

However, we now have some of the deposit companies incorporating most of this information into their tenant paperwork, but this has evolved and not always done completely. I have seen cases where a Judge has said this suffices, but others where the tenant has won on basis that they were not given opportunity to sign under 2.(g)(vii)(bb). These were County Court decisions so not case law. Check your paperwork from the Deposit Company, some tend to mix it all in to a many paged mess also trying to incorporate the "How to Rent" info. Tenants think they have not been served the PI because it is not a separate Doc, but it is the information that is important.

The main thing they look for is

1. Was the deposit protected
2. Was the tenant aware of where it was and their rights of access/dispute

You say "Deposit was protected both times for the duration of AST terms" can you confirm that deposit was protected from the outset for the initial tenancy within 30 days?

I am assuming it was, otherwise would surprise me that they are only going after PI but if so, probably because claim company does not have access to records yet; so they have gone on what the tenant said, no PI. If they are searching online they may only see whether the deposit has been protected and recently. If they do proper casework they will establish the facts from the deposit holder for all tenancies, you will pay for them to do casework if you let it continue.

The issue here is that it is a claims company. They sign a tenant up on the basis that if they back out the tenant pay their fees. Also be aware that they yet may be adding their fees to the settlement offer. It is this aspect that is grossly unfair, all they have done is collected a page of details and they get to demand £1500 or else you pay £3k to £5k for them to do the casework and attend Court. Them asking 1x the deposit is actually quite reasonable, it is the minimum they will get for every proven breach, but they will not get it for the latter two on PI alone.

In any communication with them you need to write WITHOUT PREJUDICE at top of page 1 and at end of Doc for good measure. This means that they can't use what you write against you but bear in mind you are showing your cards, which may be enough for them to decide to continue.

The decision you have is whether to accept you screwed up and to settle ASAP to avoid costs or to roll the dice and risk legal fees. You will have read the comments in previous posts about mitigation, this could all be seen as one continuous tenancy, if it was your first and only property, you might get a 1x fee for each breach.

So as it stands your choices are

1. Allege you did indeed provide the PI, that their client has misinformed them and you will defend any action vehemently. You would of course be expected to provide a copy of what you provided. The opportunity to sign it is not huge, some argued it construed agreement and understanding, other side said they could still sign it. Besides, many tenants do not answer the door so it can be enough to post it through the door, if you can be specific on a date when it was provided that matches with other meeting then so much the better.

2. Send a Without Prejudice letter not admitting liability but being prepared to settle to save your own legal fees. Pointing out that that they are mistaken in making 4 claims, because deregulation Act 2015, but you will settle at 2 or 3. Their usual tactic is to tell you that you're liable for the max and then negotiate back from there, then add their fee. In this case if you establish that due to mitigation you feel you will only be sanctioned for 3x the deposit then asking to settle at 2x seems reasonable.

If you decide to settle I would go back to them with a Without Prejudice letter explaining that you have taken advice and realise that this is going to cost you more to defend than will cost to settle so without admitting liability you are prepared to settle at 2x for the reasons stated above.

A word of warning, do not try to issue the S21 until you have ALL your paperwork in order, that means the EPC, Gas Safety and How to Rent. However, do not issue these until you have resolved this matter.

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vic 18th August, 2017 @ 08:48

@David
David, thank you very much for detailed advice.
Just few points to clarify my previous post:
- This was our first tenant and only property.
- Tenancy periods:
a) 1 year fixed AST signed in Nov 2011, which became periodic in Nov 2012 and continued until Sep 2016. Deposit was protected but no PI issued
b) 6 month fixed AST signed in Sep 2016, which became periodic in Mar 2017 and continued until Jul 2017. Deposit was protected and PI issued. Tenant moved out in July, so no need for S21.
- In our case the only two reasons we issued new AST terms in 2016 were a) lots of changes to laws, acts related to renting between 2011 and 2016, so we were told parts of original AST is not valid or completely unenforceable; b) rent increase.

I'll go with settlement offer as per your guidance. Would you be able to direct me to settlement agreement?
Thanks a lot
vic

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InTrouble 18th August, 2017 @ 09:56

Hi Everyone,

I am a new(ish) Landlord of only 3 years & l am learning the hard way as l am presently being taken to the cleaners & more by my tenant. I got to hold my hands-up though as l took my eye off the ball & left everything to the managing agent to sort out - Big Mistake!!!

Anyway l can only blame myself...

Now that the shock & horror of knowing that l have already lost thousands and am likely to lose even more has subsided somewhat, l am able to give the morals of the tenant some thought. I am a person who sides both sides to the story, sometimes to my great disadvantage...

What if tenants who failed to pay the rent after 30 days were liable to be 'fined' up to 3x times the rent by the Court and if they failed to pay or breached the Tenancy Agreement they would receive a criminal record... I am sure that we would all be jumping for joy and rushing to increase our portfolios?

So why then can't the same go for Landlords? The rules are simple (ish) if you take the time to read them.

Just a thought...

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David 18th August, 2017 @ 11:06

@vic

Thanks for clarification.

If you are going via the claim company they will provide a settlement agreement, you could ask for their proposed agreement upfront so you can take it to your solicitor for advice.

To be honest it is better that these are drawn up on an individual basis because the circumstances change for each Landlord or Tenant.

The things that are important are:

1. That is says Settlement Agreement
2. That it states the names of the parties to the agreement
3. That it is signed and dated by all the parties (ideally witnessed).
4. That it specifies what is agreed (what each party will or will not do as part of the agreement).
5. That it is a full and final settlement of all matters related to S213 and the property.

You would be well to write you want to say then run it past your solicitor.

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David 18th August, 2017 @ 12:23

@InTrouble

Tenants ARE liable for breach of contract, they can be subject to £5k to £10k in legal fees for a typical S8 claim (if they do not pay it just before the hearing date), that is way more than 3x the rent and they get a CCJ for the trouble. They are also not running a business.

I have also seen Tenants who go to appeal face £8k in legal fees because a newly appointed Judge was intimidated by a Barrister, the tenant was already homeless despite no arrears (the Landlord just wanted to sell up a month after signing a new AST). The Landlord in that case had behaved in a reprehensible manner but I do not judge all by her behaviour, she was just a nasty piece of work.

You do not get a CCJ if you get a S213-5 sanction, never mind a criminal record. To me the only Landlords that should face a criminal record are those who do not do Gas Safety checks, carry out critical repairs or who allow over occupancy, but not if that over occupancy is by an identified tenant that sublets.

I do think that Tenants who sublet without permission of the Landlord should face a criminal record for fraud as they do in Social Housing, except for where students swap in and out.

It seems to me that you can blame the letting agents as they who were true villain in your case, even though as you say you failed and you were stupid not to take more responsibility.

My person opinion is that letting agents are a useless and redundant species who offer no value at all. More often than not they are professionally negligent and just an offshoot of estate agents. They have been screwing Landlords and Tenants with faked fees, double dipping and adding an uplift on repairs.

The simple fact is that like any business that is under regulated there is abuse, before deposit legislation Landlords were "lording" it over tenants, stealing their deposits, using them as a decorating fund and worse. Legislation was brought in and they found ways to abuse it, the number of revisions by case law in this area is huge because they played all kinds of tricks, even in Court.

I think the law is about right now, after Oct 2018 the Degulation Act will apply to all tenancies and many Landlords will be able to breath a sigh of relief on some counts.

The Government has produced a document called "How to Rent" it helps all parties understand expectations.

I like free markets, so I am not hugely keen on forcing all Landlords to register, albeit that in some areas they have to. Maybe if there was a simple one day course run by your local Council before you could be a landlord then it would save grief in the long term.

I do not think the rules are that easy, Landlords are expected to be immigration officers and being stung on tax, I feel they ought to be able to move their holdings into a UK registered company without paying stamp duty as long as they remain owner of company for 10 years thereafter.

Right now I think it is the claims companies that need regulating, not just on these S213 claims but on all issues. I find it morally wrong that a claimant is forced to enter into an agreement where they face fees if they drop the case. I find it wrong that Landlords can't settle without facing huge fake fees. I find it wrong that claims firms say they are not Solicitors when they absolutely are and anybody dealing with them is not given the same sort of caution that a Police Officer might give stating that whatever you say maybe used against you.

Every Landlord that faces a sanction learns a lesson and tells other people who may be Landlords.

I do think the authorised deposit companies are biased towards the people that usually instruct them; Landlords. I would like to see the Landlord give tenants the how to rent document before a tenancy is taken up and for the tenant to pay their money into the deposit scheme of their choice which then notifies the Landlord the deposit is protected.

Again it is Letting Agents who are the true villains here, so many use deposits as a cash flow fund, having either got an insurance backed system or not protected the deposit at all.

Any Landlord foolish enough to use a Letting Agent should make sure deposit goes into a custodial scheme and that the agent is a member of ARLA at the very least, that will not prevent them being incompetent or over charging or being useless at inspections etc etc etc.

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shell 19th August, 2017 @ 11:48

Hi David- sorry to jump on the thread again! Tenant A has been secured with a full and final settlement signed and in my possession. Tenant B has been sent a settlement via email and post with 48 hours to respond. I m just not sure what to do if they don't respond? I have used all means to contact them- a text to alert to the email, home address and rental address but we have not had any response from her since her rent arrears at the start of the month! Tenancy is up on the 30th- can i legally enter the property after this date of i have no response from the tenant (i don't think she is living there but some of her stuff was still there a few weeks ago last i heard from tenant A)
Should i put her half in a regulated scheme for the last week of tenancy and use their dispute system to get it back in light of her arrears? Can i even do this if tenant A has already had hers returned and it was a joint tenancy? i'm confused as to the best next step if a settlement isn't agreed?

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shell 19th August, 2017 @ 14:49

quick update! Tenant B is agreeing to settle! I wish i had your address to send you a bottle of whisky as your advice has been invaluable!! Thank you.

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David 19th August, 2017 @ 15:12

@Shell

I would arrange an inventory and exit inspection with Tenant A, you will then have achieved peaceable entry.

If Tenant B has left stuff it can be deemed as they plan to return. You have obligation to notify and store it (at their cost in due course) make an inventory of stuff and take photos. Record the condition of each item.

When you see Tenant A thank them for their co-operation, offer them a positive reference if you have not done one already. Casually mention that if the other person asks them to authorise them to claim that they would not only be in breach of your agreement but they would open themselves up to potential of legal costs you have depending on outcome. Say something like I am sure that is not going to happen but I just wanted you to be aware that she may try to ask you to do so.

I think as you have not heard from her you need to contact her guarantor, ignore the S213 stuff and just go after the arrears. For the first letter I would keep it friendly-ish, say you have written, email and texted the tenant who has failed to respond. As Rent has not been paid you will be enforcing their agreement to guarantee payments on the tenancy.

If they come back to you and mention the S213, I would say that any S213 issues are between Claimant and you unless they wish to formally advise you that they have been retained as Tenant B's client and if so to please provide the name of their Solicitors firm. Tell them if payment is not received within 7 days that settle the arrears and other maintenance fees (ignoring anything you offered in settlement agreement for Tenant B) you will be instructing your Solicitors to issue a letter before action.

As far as S213 is concerned refuse to discuss it with them (unless they formally advise you that they have been instructed as Solicitor of Tenant B), it is not an acceptable reason to withhold rent and they are not the claimant but the guarantor.

Only at this final stage do you drop the bombshell that you have secured a settlement agreement with tenant A which includes not making a claim and as any S213 claim on a joint tenancy requires both to make the claim, their suggestion is rejected. Do this in a without prejudice letter.

To be clear, you are going after Guarantor because tenant has not paid rent or , I have not seen your agreement but usually you can just issue a demand in accordance with the guarantor agreement, 10 days is common but check your agreement. It should say that you are entitled to recover all losses, damages, costs and expenses of the landlord arising from any breach of the tenants' obligations under the tenancy agreement.

Now if they say "You offered less in the settlement agreement" or make any reference to the amount, then it proves the tenant received the previous notifications. To be honest, with the agreement for Tenant A you have no reason to give Tenant B a settlement, they have a guarantor, just go after them. If they do not pay you issue the letter before action which will give them 14 days to pay or you will commence legal proceedings against the Guarantor (not the tenant) under the Guarantor Agreement. If they try to counter claim you can ask Judge to dismiss the counter claim as they are not the tenant and thus not a valid claimant and in any event such a claim would need to include Tenant A. Your claim is under £10k so can be done on the small claims track. It has "fixed costs" so you cannot go for legal fees under usual circumstances. This is your pre-action conduct:

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

As I said, do not engage on S213 as they are not entitled to be claimant and unless they are formerly instructed by tenant B the issue is confidential.

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David 19th August, 2017 @ 15:15

@Shell

Good to hear, settlements are cheaper for all.

Our messages crossed.

Hopefully the above will help anyone else in a similar position.

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vic 22nd August, 2017 @ 11:29

@David
Thank you for all advice so far.
I'm finalizing offer letter of settlement to this no win no fee co acting on behalf of tenant. What should I do with tenant's non performance related to AST agreement (damages to property) and 1 month arrears? Should this be left to be recovered through court claim or requested to no win no fee co to deduct from settlement figure?
Thanks

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David 22nd August, 2017 @ 17:05

@Vic

Ideally both parties want the whole thing wrapped up in one agreement but that is going to depend on your claim amount and what they are settling for.

If you have asked them to provide a proposed letter of settlement you would have an idea of what they have in mind (including costs).

If they agree to a settlement of S213-5 issues and leave out any damages then that leaves you open to claim on the deposit in any scheme and to claim for damages that you can prove.

BE AWARE if both parties accept the deposit holder as arbiter it will affect your ability to make a legal claim.

If you approach the claim company you can add it but there are a few factors worth considering, they may be working on a conditional fee arrangement for 35% of sanction or settlement, if the matter becomes long and protracted they get to rack up fees.

I would get them to agree to settle the S213-5 issues first, so that amount is fixed and done. My instinct would be to eliminate the risk of higher sanctions by putting the case to bed.

Once you have settlement, you can decide whether to send a letter before action for the damages. At that point they will not be on a no win no fee basis. In small claims you will not get your legal costs back but you will get court fee and other fixed expenses if you win.

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vic 22nd August, 2017 @ 20:16

@David
Hi David, would you please to explain more on "BE AWARE if both parties accept the deposit holder as arbiter it will affect your ability to make a legal claim", as I could not find any information about this online.
Also, is there anything I need to add to settlement agreement or look out to be removed?
Thank you
vic

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David 22nd August, 2017 @ 22:19

@Vic

I could not possibly comment on an agreement I have not seen, I did explain above the minimum it needs to have.

Really any contract is about showing intent. I did explain in 197 above that you can ask the claim company for what they propose as a settlement agreement, then add or subtract from that as you see fit.

There are contracts available online but upon reflection on the situation discussed in this blog post I felt that they are overkill and such a long winded agreement would scare people off. So I come back to what I said in 197.

With regard to the arbitration, this is the FAQ for the ADR of one scheme

https://www.depositprotection.com/help/browse/insured/tenant/alternative-dispute-resolution

As explained here, once both parties agree to ADR it is legally binding, so you can't take legal action if you do not like the outcome.

I was shown the way it pops up in the process at the DPS when a Tenant or Landlord raise a dispute and did not think it made it clear enough that it was binding.

https://www.citizensadvice.org.uk/consumer/alternative-dispute-resolution/settling-out-of-court/using-alternative-dispute-resolution-adr/

https://www.citizensadvice.org.uk/consumer/alternative-dispute-resolution/settling-out-of-court/using-alternative-dispute-resolution-adr/

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Flash 23rd August, 2017 @ 20:14

@David

David - your help again here. The solicitors of my ex-tenant have sent me a letter asking a 3x times the deposit penalty, plus the initial deposit of £500. At the moment i would like to avoid any risk of going to court as the cost and fees can go up to 8k in total, which i cannot afford. Question is, will the solicitors negotiate anything less than 3x the deposit ? How do i go about without risking court action and further legal costs?

Also the solicitors of the ex-tenant want the deposit back in cash from me. The deposit is currently held on hold by the DPS. How can i take the deposit out of the negotiation table so i can claim potential damages ?

Many thanks in advance

Flash

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Rowena 2nd September, 2017 @ 06:45

Has there been any precedence at all where a landlord has managed to establish with the Judge that they acted in good faith and were a good landlord - and the deposit not been put into a scheme was an oversight rather than on purpose ?

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Rowena 2nd September, 2017 @ 06:47

Just to complete the last comment - been able to get away by just returning the deposit and not paying the 1 to 3 times the compensation ?

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David 2nd September, 2017 @ 08:14

@Rowena

It would not matter whether they acted in good faith, the law is quite clear, otherwise every Landlord would say "sorry it was an oversight"!

It used to say that the just MUST award 3x the deposit if the deposit was not protected within 14 days, these were subsequently amended to between 1x and 3x the deposit within 30 days.

The word MUST ties the Judges hand, if the deposit was not protected for whatever reason they MUST apply a sanction of 1x the deposit.

There is case law that I have quoted above that confirms a Judge has the discretion to vary between 1x and 3x, that is the best you will get.

If you had an agent do it then you can go after the Agent for what their negligence cost you, but if the sanction or settlement has not been agreed yet you should bring them into the situation by warning them you hold them responsible.

Start off by being nice to them, tell them you have this dispute and ask them for evidence they protected the deposit and any related emails, then once they provide it to you, you inform them that you find them responsible. Tell them that if they settle the matter by paying the tenant 3x the deposit now it will save them the legal fees you will incur defending the matter and in taking them to Court.

On the cases I have seen with agents involved the worst it took was a Solicitors letter (which they ended up paying for). Obviously, it does depend on the type of contract you had with the agent, whether it was stated or implied that they would do everything for you. In the industry they tend to call this "full service". You would be wise to save pages of their website that imply they will do it. For example a page that says "we take care of all of your Landlord responsibilities".

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Dingo 17th October, 2017 @ 23:54

@David
Thanks for sharing the advice on Vic's case.

I received a claim letter from a claim company acting for an ex-tenant seeking x3 compensation and 3 claim for each tenancy agreements. Can they claim it for each year's tenancy? I signed a Lodger Agreement when the tenant first moved in when I was living there at the time, which is why I did not register the deposit protection. I subsequently moved out after a short period of time (a month or so), but all renewal of agreements were left unchanged as Lodger Agreement.
year 1: Jun 2014 - Jun 2015 rolled on for an extra month
Year 2 July 2015 - July 2016
Year 3 July 2016 - July 2017

Can they claim it 3 times for each tenancy agreement period? Or should that only be one claim that the deposit was paid once only in 2014?
Because I did not sign a AST agreement, will it be difficult for them to have to proof the Lodger Agreement is not valid first before they can have a case? If that's the case is it best to not to admit that I am at fault of not protecting the deposit? Or does it simply default to AST due to I didn't live there subsequently?

The claim company is asking for 9x in total of the original deposit amount. If I propose to settle, what's the maximum amount in your view that I should put a stop and make the court proceed worthwhile given the additional court fees/legal costs?

This is completely stressing me out at the moment, lots of sleepless night. Any help you could give would be greatly appreciated.

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David 18th October, 2017 @ 01:44

@Dingo

The law in this area is based on a number of acts and orders as well as a plethora of case law decisions in the high and appeal courts. Under normal circumstances where an AST originally existed and was replaced with new ones including statutory periodic tenancies there can indeed be a liability for each tenancy, but it is largely dependent on the date of each tenancy. This was made better for landlords by the deregulation act 2015, for tenancies that started after it came out and for all tenancies once we are past Oct 2018. However, your case is different because no AST was created by you in the first place.

Of course the claims company wants to claim for the largest amount possible, they also want to intimidate you and make you give them evidence by engaging them.

As your case is live I would not put too much personal information on a public site, including your name or actual dates.

Their first hurdle is to prove that you were not resident, they will have the affidavit Statement of Truth from the lodger, they may have similar from other lodgers or other witnesses.

They will look to substantiate this with records of you living elsewhere on the voters roll, company records, land registry and so on. You can't assume they know what you know but at the same time they may be things they know that you could not anticipate. They may also rely on Council determinations if there were any interactions and findings with them.

Any communication you have with them must have Without Prejudice at top of each page so it can't be used against you in Court, do not engage them on the phone, only in writing.

A tenancy agreement is created in law by statute where one does not exist, it does not automatically follow that the lodger agreements should each be replaced by an AST. Of course they will want it that way but a Judge will first have to decide whether to find that a tenancy is to be created in law.

When these are done by statute, for example when a tenancy expires and the tenant remains they just roll over month to month until the tenant leaves or the landlord evicts.

So it would be reasonable for your Solicitor to argue that IF the Court was to decide the lodgers agreements were void that the tenancy period was a statutory one that ran from Jun 2014 - Jun 2015 to July 2017. This would limit your potential liability to between 1x and 3x the deposit.

You would then be able to argue that as you thought the lodging agreements were valid and as a novice landlord you did not think you needed to protect the deposit. Factors here will be if you had professional advice that explicitly told you the deposit did not need to be protected. By the same count, if you are a professional landlord, if you had enough lodgers/households resident or property size (3 story or more) that made the property an HMO or if your property was in an area that requires you to be a licensed Landlord.

I see no reason to cave or reason to give them evidence, you have to consider what they can prove. Bear in mind they will be going for legal fees. Also bear in mind that if you offer a reasonable settlement and they waste the Courts time by not accepting they may not get their costs. Your starting point in negotiations will be 1x deposit but before you get to that you need to find out as much as you can up front.

In the first place you could write back a Without Prejudice email saying you are shocked to have received their claim and say that you will need some time to take legal advice, meanwhile you would be grateful on what legal basis they are making their claim.

Do NOT be fooled by their assertion that they are a claims company and not Solicitors, they ARE effectively Solicitors using the law and the threat of legal fees to extort money. They will use anything you say against you. So say as little as possible and only in writing, act dumb and see what we can get them to spill. If they call you block their call or even tell them that you have been advised to only discuss the matter in writing and for them to please never call you again.

Getting stuff in writing will get them to show their cards to some extent, I know the basis on which they are making the claim and how the law can be twisted to suit their goals and yours, but they may not be aware of all case law or they may be relying on decisions that have been superseded by other law or case law.

It may be wise for you to communicate any details of your case by private message via the forum of this site, join it using the Landlord Forum at the top of the page then follow the link below to find my profile

http://bit.ly/davidpip

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Dingo 18th October, 2017 @ 21:15

@David
Thanks for your response. I have private messaged you.

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Dingo 20th October, 2017 @ 12:43

@David,
I am a newbie to the site, so not sure if you have received my private message. Please let me know. Thanks a lot!

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DisappointedTenant 6th November, 2017 @ 18:27

Hello Everyone,

I was pretty disappointed to read this blog. I am a tenant who has moved house (because of moving locations) every year or half a year for the past 6/7 years. Every time I have done this, I have been screwed over for my deposit whether it be by a Landlord or an Agency.

It IS your DUTY as a landlord to protect this deposit. THIS IS THE LAW and you MUST abide by it.

I would say instead of putting down "those dick-face tenants" that you believe "are taking advantage of ignorance purely out of greed", why don't you start facing your efforts toward the "dick-face" landlords and agents that act irresponsibly and unfairly, which are "taking advantage out of [EVERYONE] purely out of greed. If this changed maybe tenants wouldn't feel they need to get one back to their landlord (who is breaking the law, whether through ignorance or not).

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David 6th November, 2017 @ 19:42

@DisappointedTenant

Sorry you are so disappointed with the blog, it is not mine but one of the best I have seen on the subject.

I think if you read the comments you will see that most Landlords forget because they have a million things to do.

The good news is that if by being screwed over you mean your Landlord or their Agent did not protect your deposit then you are quids in, you have up to six years from finding out about their obligation to protect the deposit to take action.

If you mean they tried to take monies from your deposit, well it is simple. They are not allowed to take for wear and tear, but if you were given the property with say professionally cleaned carpets then they will expect the same when you leave.

I really agree with you that it is when Landlords do a money grab on the deposit that things go bad and the tenant seeks revenge.

I have honestly seen cases for deposit protection started because of a charge applied for lightbulbs, the deposit amount was £2000 and they went for £6000 plus costs.

Some Landlords take the "lord" bit too far, however, there does need to be a mutual respect and especially respect for the property.

Anyway keep reading the blog, you will learn a lot about your rights and one day, you might be a landlord too.

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Cronis 25th November, 2017 @ 14:21

If a tenant's name appears on the front of the tenancy agreement but they haven't actually signed the agreement can they still be classed as the tenant?

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David 25th November, 2017 @ 14:48

@Cronis

In the absence of a tenancy agreement then one is created by statute.

I have had a case where one nights sleep at the property started the tenancy (they had signed a form from Agent to hold the property).

Are you the Tenant or the Landlord?

What is your objective?

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Cronis 25th November, 2017 @ 15:29

Thanks for getting back to me David.

I am a landlord.

The initial tenancy agreement was with the husband only. In January 2016 the couple asked for a new tenancy agreement with both names on the front. However only the husband signed it as 'the tenant'.

The couple have now split up. The husband left the property some time ago and the wife left last month. Because I neglected to lodge the bond with a holding company she has gone to a claims company for her pound of flesh. However, when I checked the lease I have noticed that only the husband has signed the lease and was wondering if she has a legal right to make a claim. I have now paid the bond in full to the husband despite the fact that there is damage to the property in excess of the bond.

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David 25th November, 2017 @ 17:46

@Cronis

Every permutation has interesting aspects, I am assuming that the initial tenancy was protected and was prior to Oct 2015 Deregulation Act as you state new one was Jan 2016.

For the same property, if there was a tenancy in place with the husband then no statutory agreement would be created for her, UNLESS the tenancy with him expired and she remained in the property (assuming the contract was not contractual periodic in the first place). Typically the replacement statutory agreement would be identical to the one it replaced except it the term, so he would still be a party to it.

She might argue that her husband was the Lead Tenant if the agreement was structured as such and mentioned he was Lead Tenant and authorised to act for other parties, usually they all sign something, it is just the Lead Tenant who represents.

You could always bluff that she was not party to any agreement, she may of course have her copy and have signed it just to confuse matters, if her copy was a photocopy rather than a second original then she would be stumped.

However, there is another way to snooker her and her Ex.

Contact the Husband, say to him that you have now had time to inspect the property and there are damages that he is legally responsible for unless you can reach an agreement. Say that you are prepared to reach a settlement with him without cost and just need him to sign the settlement agreement to protect you both.

In that settlement agreement he agrees not to be a party to or authorise any legal action against you regarding the property relating to Housing Act or other common housing law. You agree not to take legal action against him in respect to damages and breach of contract (or arrears if they exist). It would be a good idea to list the damages so that if he reneges you will have a value that he becomes liable for.

As joint tenants she would need his permission to pursue a claim, I am guessing that she is going to try to say she had a Statutory Periodic agreement but as I said these usually replace the previous agreement.

As you have already provided some detail you may want to contact me via the forum, if you click the forum link at the top of this page, join the forum, then click the following link you will be able to send me a PM.

http://bit.ly/davidpip

If he declines to sign you still have right to claim damages and hold him responsible for any arrears.

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Emily 13th December, 2017 @ 08:50

The article is a very good read, as is the previous one. Just to add though not all tenants are money hungry they sometimes just feel taken advantage of. My landlord in particular was coming in to my home without my consent. Her husband dragged my car across the driveway so that they could get to a pole for the internet. I had to install a camera so that I felt safe. We had a bit of a barny via text about her entering my property and I asked if that was her notice for us to leave, she said no. So I learnt to live with her walking by everyday and checking the camera religiously. I had asked for a repair which still hasn't been done because I won't let them in without me being there. 2 months later and she gave us a section 21. I was so angry that she now has a letter before action and I will 100% take her to court. The funny thing with this is that I had already started to look for a house to move into for when our tenancy ends. I would have only pursued court action had she not given our deposit back after we left but since the section 21 came through I was like **** you. So for landlords reading this - just be friendly and courteous to your tenants.

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Emily 13th December, 2017 @ 08:53

Just to add - she failed to protect our deposit, supply us with the info about the energy (which I'm not fussed about really) and also broke the tenancy agreement.

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David 13th December, 2017 @ 10:16

@Emily

Her entry into your property is a breach of contract, you are entitled to "quiet enjoyment of the property", you are also entitled to change the lock as long as you leave it back where it was when you go.

Funny I have heard of two cases recently where Landlord comes into property when they feel like it but they were cultural issues I think, still weird nonetheless.

If you report a serious repair do it via the Council, ask them to issue an improvement order and if they do then if the Landlord tries to evict it is seen as a revenge eviction under the Deregulation Act.

I have said it 100 times that the vast majority of tenants do not usually seek deposit sanctions without being provoked. It can be a grab on their deposit, usually for something they did not expect.

It is as much about communications as anything, for example in the inventory checkout, the Landlord is thinking "bloody bastard broke that shelf" the tenant is thinking "great he has not noticed or said anything about the shelf". When the best time to bring up issues verbally is at that inspection.

For you I would avoid text messages or emails as you lose the intonation.

With your S21 leave it until the two months are almost up, then write saying that the S21 notice is rejected because it does not comply with the requirements of the Housing Act 2004 and modifications of said Act.

It is deliberately vague, if she continues and tried to get a Court date you simply write to the Court asking they dismiss the case because deposit was not protected.

They throw out the case, she protects the deposit but fails to issue you with the PI within 30 days. Again leaving it until the two months are almost up, then write saying that the S21 notice is rejected because it also does not comply with the requirements of the Housing Act 2004 and modifications of said Act.

She may carry on and again you write to the Court saying that no prescribed information has been served in relation to the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007

So now she issues you with the Prescribed Information, she then issues a 3rd S21, Yet again leaving it until the two months are almost up, you write saying that the S21 notice is rejected because it also does not comply with the requirements of the Housing Act 2004 and modifications of said Act.

Again if she tried to seek a hearing you ask the Court to dismiss the S21 because she has failed to issue an EPC in accordance with the Deregulation Act 2015, if they grant the hearing you make the same argument in Court and you ask the Court to order that any future S21's are not issued until they have been fully checked by a Solicitor or the Court itself.

When the fourth S21 is issue I suggest you leave when it expires, unless you are eligible and seeking housing from the local Council in which case take their advice at the time.

I only suggest this course if action where the Landlord has been a complete idiot and truly mistreated tenants.

Then when you have gone give her some breathing space, let her get a new tenant in, perhaps visit them a month into the tenancy and let them know you had a big dispute and why, also advise them to change the locks!

Then send a letter before action regarding the deposit (you have up to six years).

Was this the first tenancy, did it expire or did she renew it?

The deposit sanctions are per tenancy, if post Oct 2015 and she did not protect original tenancy and it rolled on to SPT or was a new AST then she is looking at even more to pay.

Take your time, get onto eBay, a new cylinder for your lock will cost you £3 you do not have to give her a key and only have to let bona fide contractors in.

I think you have a case under Harassment Act but you must not hit back verbally or physically, so change the locks, when she realises and loses it you call the Police. If she breaks in she is breaking the law and can be arrested.

This is all about boundaries, she has let you the property and you are entitled to treat it as your home, she can do inspections but if there has been harassment you can reasonably insist these are done by a qualified 3rd party such as a lettings agent. You do not have to let her in or answer the door to her.

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Emily 13th December, 2017 @ 11:50

@David

Thank you very much for your reply. I didn't realise I could do all breaches separately. That would have been a funny fly on the wall situation.
I looked into changing the locks but the printed off WH Smiths tenancy agreement says that if the locks are replaced then a key needs handing to the landlord. I didn't want to get myself in to trouble.

Fortunately I'm in a position where I can afford to just move. We only moved in Aug this year so it's our first 6 month tenancy - I'm aware you can claim for each one.

I'm happy as long as she pays our deposit back - I was worried she'd keep it and say we've damaged the place (which we haven't) any compensation would be nice as it's been an horrific experience. She lives on the same plot of land as us so I'll just be really happy to move away and write it off as a bad experience.

I've learnt a lot if I ever wish to let though haha

Thanks again :)

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David 13th December, 2017 @ 15:27

@Emily

Yes I have seen those breaches used like that several times when relationships break down, usually when the Landlord/lady has been completely over the top. The cases I have seen have involved very strong personalities on both sides, ironically all female Landlady and female tenants.

Whilst the contract is critical as to what has and has not been agreed, common law can make a term an unfair contract term if there is a conflict. Common law is formed by Acts such as Housing Act as well as case law.

I think you are right to move away if possible, less stress always best.

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Emily 31st December, 2017 @ 14:15

Just for an update - I applied for another house - paid my fees, passed the credit checks but failed because my current landlord wouldn't give us a reference. I provided my bank statements to prove we had paid but it wasn't enough!! The landlady phoned my other half up and said if we drop the court case then she'll give us a reference. I don't react well to bribery - gutted as the new house was beautiful :( #landlordsfromhell

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David 31st December, 2017 @ 15:37

@Emily

Well you tried to go amicably.

I would like to suggest a course of action but as you have already provided much personal information I suggest I do it via a private message.

Click on the Landlord Forum link at the top of the page, join the forum and when you have activated your forum account by email, then login and click on the link below

http://bit.ly/davidpip

She has already broken some laws and this just adds to the case.

I can help you draft a letter with a view to reaching a settlement but if not enable you to get the highest payout via Court action.

This landlady has boundary issues and seems to want to control everything, well she is going to find out the hard way that it can cost a lot of money to behave unreasonably.

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sabrina 31st March, 2018 @ 11:43

Hi David

I am at the beginning stages of agreeing a settlement for not securing the deposit. Do you have a template for the settlement letter available.

Sabrina

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David 31st March, 2018 @ 12:17

@Sabrina

I originally was going to provide a template settlement agreement to the site owner, I assigned it as a task to 3 people in my team.

It then became clear that this was going to be problematic.

2 came back with very comprehensive agreements that would scare a tenant shitless, so they would probably not sign. 1 came back with a basic agreement that a tenant would sign but may leave the site owner liable for anything missing (regardless of waiver).

Then we had situations where a claim company was involved and a plethora of other variables.

So I felt it was better to draw these up myself when people have shared with me their situation via the forum. This is important because the agreement needs to encompass all tenancies and all disputes.

That does not stop anyone drawing up their own agreement, what matters is that it is titled settlement agreement, is dated, specifies the parties to the agreement, that it refers to any sanctions arising from renting the property (which must be named) under legislation Housing and other acts of Parliament. It should be clear that it encompasses all tenancies for the said property.

It should specify what is being given by each party as settlement and it should be witnessed by someone you can rely upon.

It should specify that in the event of any further claim by either party that the person bringing the claim will be responsible for both sides legal costs and any consequential costs or sanctions.

If you trawl the comments of this thread and other deposit thread there are examples given some time ago.

There is also some benefit from you both agreeing this and just writing what you agree, the key is to show intent.

I should point out that no agreement can override common UK law so it will not stop someone bringing a claim if they had cause under the Act, it is just that Judges decide things not Court staff who process claim paperwork.

However, the Court would either dismiss the claim or at the very least take into account the amounts that had been settled. There is enough case law anyway to show it would represent bad faith to settle and then issue a claim.

It it worth remembering that if there is more than one tenant all must agree or authorise the other to bring a claim, so by getting just one to agree not to bring or authorise a claim you snooker the others.

Hope this helps, but feel free to contact me via the forum to give me confidential details of your situation.

Click on the Landlord Forum link at the top of the page, join the forum and when you have activated your forum account by email, then login and click on the link below

http://bit.ly/davidpip

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sabrina 1st April, 2018 @ 10:38

Hi David

I am having problems getting an email response to activate my forum account. I have made several attempts. I have also looked in my junk mail.

Sabrina

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David 1st April, 2018 @ 13:11

@Sabina

This is not my site but I managed to join which means anyone can!

1, Click the Landlord forum link above or visit https://www.landlordforumproject.co.uk

2. Click Register or visit https://www.landlordforumproject.co.uk/index.php?action=register

3. Accept the terms of use

4. Fill in the fields and Captcha

Username:
Email:
Choose password:
Verify password:
Verification
Type the letters shown in the picture

5. Look for an email to verify your email

6. Login in with the credentials you used in step 4

7. Visit http://bit.ly/davidpip

8. Send personal message

Hope this helps, other have reported problems but resolved it using above instructions.

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sabrina 14th May, 2018 @ 19:11

Hi David

Thank you so much for your help and advice. The matter is now closed. I served the tenant with the settlement agreement and have subsequently paid the asking price for not securing the deposit in a deposit scheme.

I have certainly learnt my lesson.

Many thanks

Sabrina

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Angela 5th June, 2018 @ 07:53

I wouldn't jut like to point out that NOT all tenants are leeching paristies looking for easy money.

I rented a property for 10 months in which time I decorated and carpeted the house all with the owners permission.
I gave my notice to leave after double checking my rent account was satisfied and everything was in order with the letting agent. I then discovered my deposit was not protected . This is where the trouble began, I asked my landlord about my deposit to which she said she paid in months ago.
I contacted citizens advice to ask what to do about my deposit and this lying landlord.
I checked all three deposit schemes and non held my deposit.
I spoke to a solicitor and issued a letter threatening court action if my deposit was not returned, to which a reply was , we will see you in court.
I offered mediation they said no.
When it came to giving out statements to each other I sent everything of mine to them and the court, I had nothing of them, I'm at court in two weeks and I still have no idea what evidence they 'have'
When it came to leaving , my rent was all up to date everywhere was cleaned and left tidy.
I got both neighbours to come in view the property before posting the keys ( as the landlord wouldn't come collect them)
Originally they eventually paid my deposit into dps, 9 months late, they claimed I have damaged all sorts and wanted £1039 off me now it's going to court it has somehow escalated to £2460. Apparently I stole the coal from the fires, light bulbs, put holes in the walls ruined carpets etc etc..
I have every bit of evidence needdd to prove them wrong.
I think they saw me as a single mother who worked 6 days a week as an easy target!
The next tenants have got in touch with me as they are now going through the exact same thing.

I'm at court in two weeks and I am dreading it, I know I shouldn't worry as I have done absolutely everything in the correct way, but this has been making me ill , please give me some reassurance 😢

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David 5th June, 2018 @ 13:27

@Angela

It is a shame you did not come here earlier, I often manage to get such Landlords to accept that they broke the law and the sanction is there teach them the importance of following the law.

As this is a live case I would suggest you contact me via the Landlord forum so we can discuss confidentially.

Suffice to say that you have nothing to worry about, once the Judge catches them in one lie they will not believe a single word they say.

Depending on how you brought the claim I may be able to get their claim thrown out if they have not followed CPR to the letter.

Incidentally they cannot get an offset against a statutory penalty.

Rogue Landlords often invent revenge damages in such claims and forget that everyone these days has a smartphone with a video camera.

All the landlord is likely doing here is guaranteeing the maximum sanction as well as paying your legal and fixed costs as well as Court fee.

Do not reply further here as your landlord may well come across this page, use the private messaging of the forum, instructions to join are below.

1, Click the Landlord forum link above or visit https://www.landlordforumproject.co.uk

2. Click Register or visit https://www.landlordforumproject.co.uk/index.php?action=register

3. Accept the terms of use

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5. Look for an email to verify your email (do not use hotmail as they lose them)

6. Login in with the credentials you used in step 4

7. Visit http://bit.ly/davidpip

8. Send me a personal message

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Suzanne 6th July, 2018 @ 11:53

hello everyone,
my tenant has just moved out of the property, she had her deposit back and everything was okay until I received a letter yesterday stating that firstly, I didn't put her deposit into a deposit protection scheme which I did and I have proof of this. Secondly, that I didn't provide her with the prescribed information, which admittedly I didn't do. No excuses as it my own fault but I'm new to this.
She also owes me around £400 in unpaid rent, I haven't yet spoke to her about this as she only moved out two days ago.
I know that I've been stupid but I believe I was a good landlord and she's just doing this because she wants the money, the letter says she wants £1650 (3x times deposit) or she will issue proceedings to the court.
Any advice and I would be grateful as its very confusing for me.

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Simon Pambin 6th July, 2018 @ 12:42

They always ask for three times the deposit as it's the maximum a court can award. The minimum the court must award is one times the deposit and, if you genuinely protected the deposit within 30 days in an approved scheme and your only breach was in failing to issue the Prescribed Information (unless you did issue it and the tenant has just forgotten about it), that is all the court is likely to award. So, in effect, you "owe" her £550, she owes you £400. Offer her £150 in full and final settlement and write it off to experience.

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David 14th July, 2018 @ 13:02

@Suzanne

I did post a reply to your message, not sure why it did not post

This page has been created to give you what you need to negotiate with the tenant, if it has already gone to a claims company or Solicitor you will need a different approach.

If this article and Simon's suggestion of the amount are not useful to you then feel free to contact me via the forum so we can discuss confidentially.

Do not reply further here as your tenant may well come across this page, use the private messaging of the forum, instructions to join are below.

1, Click the Landlord forum link above or visit https://www.landlordforumproject.co.uk

2. Click Register or visit https://www.landlordforumproject.co.uk/index.php?action=register

3. Accept the terms of use

4. Fill in the fields and Captcha

Username:
Email:
Choose password:
Verify password:
Verification
Type the letters shown in the picture

5. Look for an email to verify your email (do not use hotmail as they lose them)

6. Login in with the credentials you used in step 4

7. Visit http://bit.ly/davidpip

8. Send me a personal message

237

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