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vb7
06-03-2010, 21:27 PM
Hi,

I recently submitted an N5B form to gain possession of my property as the tenant was refusing to move out. The cost to file the papers at court is £150 and I have asked the court to award me the costs.

The tenant was given 14 days by the court to submit a defense but fortunately they have now vacated the property.
Am I entitled to keep £150 from the tenants deposit as I am currently out of pocket this amount as I had to apply to the courts for an eviction order, or do I have to wait for the court to award me this amount before I can deduct it from the deposit. Or am I legally bound to return the full deposit to the tenants and wait for the courts to award me this amount?

Many thanks in advance for any advice

VB7

Preston
06-03-2010, 23:31 PM
What does your tenancy agreement say about what you can charge against the deposit?

vb7
07-03-2010, 00:40 AM
The contract states the following:

As per the terms of the letting agreement, you will be liable to pay, the reasonable net costs incurred by the me (the Landlord), or my agent or professional advisers, in successfully enforcing or remedying a notable breach of, or significant failure to comply with, your obligations as a tenant under the agreement.

This may sound silly, but does the fact that they stayed in the property beyond the contacted date mean they have failed to comply with their obligations as a tenant? as surely they were obligated to move out of the property the day the contract expired. I had served a S21 notice 2 months before the contracted end date.
VB7

Preston
07-03-2010, 08:38 AM
This may sound silly, but does the fact that they stayed in the property beyond the contacted date mean they have failed to comply with their obligations as a tenant? as surely they were obligated to move out of the property the day the contract expired. I had served a S21 notice 2 months before the contracted end date.
VB7

No, I am afraid it doesn't. Unfortunately, from your point of view, I do not think your court fee is recoverable from the deposit. Essentially, the purposes to which the deposit may be put should be specified in the agreement.

Ericthelobster
07-03-2010, 10:22 AM
No, I am afraid it doesn't.So are you saying that not complying with an S21 notice is not considered a failure to meet to meet their obligations as a tenant?

Presumably if the tenants were still in situ at the time the courts issued a possession order, there would be no question that the tenants would be liable for the fee? - so not sure why there's a fundamental difference here? After all, T forced LL into having to submit the N5B (and incurring the costs) by not moving out by the specified date?

Lawcruncher
07-03-2010, 10:27 AM
A section 21 notice does not bring a tenancy to an end and accordingly does not impose any obligation on the tenant to leave or indeed to do anything.

tom999
07-03-2010, 11:18 AM
Am I entitled to keep £150 from the tenants deposit as I am currently out of pocket this amount as I had to apply to the courts for an eviction order, or do I have to wait for the court to award me this amount before I can deduct it from the deposit. Or am I legally bound to return the full deposit to the tenants and wait for the courts to award me this amount?
Unless there is a specific provision in the AST that deposit deductions can be made, e.g. for possession, legal action or similar, then you cannot retain the deposit. You may need to make a separate claim via the small claims track for court costs.


A section 21 notice does not bring a tenancy to an end and accordingly does not impose any obligation on the tenant to leave or indeed to do anything.No, but a possession order does require T to leave, which is what OP is refering to.

Lawcruncher
07-03-2010, 11:56 AM
No, but a possession order does require T to leave, which is what OP is refering to.

But it seems the tenant left before an order was made. If no order is made by the court it must follow there was no order as to costs.

What does the agreement say anyway?

you will be liable to pay, the reasonable net costs incurred by the me (the Landlord), or my agent or professional advisers, in successfully enforcing or remedying a notable breach of, or significant failure to comply with, your obligations as a tenant under the agreement.

There has been no "successful enforcement". There was no breach or failure to comply with any obligation - not even an obligation to leave as that would not have arisen until a court order was made - that could be enforced. Indeed the provision does not allow the landlord to recover the cost of possession proceedings following the service of a section 21 notice since such proceedings are not for a breach of obligation. Not even the cost of enforcing an order would seem to be covered since any obligation to leave does not arise under the agreement but by virtue of the court order. (Of course if the court orders the tenant to pay the costs of the possession proceedings that is different.)

davidjohnbutton
07-03-2010, 16:45 PM
What about the right of "set off" (i.e. the tenant owes the landlord £150 and but for this the landlord would owe the tenant the £150)??

Could that not apply here?

Lawcruncher
07-03-2010, 21:41 PM
What about the right of "set off" (i.e. the tenant owes the landlord £150 and but for this the landlord would owe the tenant the £150)??

Could that not apply here?

The problem is that the tenant does not owe the £150 to the landlord.

davidjohnbutton
07-03-2010, 22:39 PM
The problem is that the tenant does not owe the £150 to the landlord.

I think that he does despite it not having been awarded by the court yet as it is a sum expended because of the tenancy and can be properly set against the tenant's "account".

Otherwise one could say that rent arrears were not "owed to the landlord" until a court order had been made!!!!!!

Lawcruncher
08-03-2010, 00:07 AM
I think that he does despite it not having been awarded by the court yet as it is a sum expended because of the tenancy and can be properly set against the tenant's "account".

Otherwise one could say that rent arrears were not "owed to the landlord" until a court order had been made!!!!!!

The difference is that the tenant has agreed to pay the rent, but not the court fees.

davidjohnbutton
08-03-2010, 13:33 PM
But, if there is wording within the tenancy agreement that legal fees can be charged to the rent account, then the tenant HAS agreed to pay such court fee and set-off could apply.