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jidoujoe
18-07-2011, 14:50 PM
Dear all,

Having a spot of bother regarding a damage deposit dispute that has arisen with LL. I am the lead tenant (tenancy ended 2nd July). The deposit was a joint deposit between four housemates (for arguments sake I shall refer to them as J, T, L and D).

The desposits of J, T, L and D (Total: £1480, £541 of which is being disputed), were registered with the Deposit Protection Service at the start of the tenancy, however, the LL failed to inform the DPS that 'D' left the property in the first month of the tenancy and was replaced with housemate 'P'.

I have read that if the deposit of an individual was not registered with the DPS, the full amount should be returned to us as the deposit is then forefit. Is this the case? If not, what implications does the lack of update mean for us as tenants as 'D' is still listed on the DPS site as being a tenant and therefore, when trying to reclaim 'P's section of the deposit, it comes under 'D's name. I'm sure there are some legal implications with this?!??


As we are desperately struggling to get our full deposit back (having no legal representation), we are looking for any help possible.

MrJohnnyB
18-07-2011, 14:59 PM
Firstly are you actually liable for the damage that LL is claiming? As whilst you could probably force a repayment because of the lack of protection of P's deposit, it would not preclude LL from then taking individual/joint tenants to court for the monies.

jidoujoe
18-07-2011, 15:08 PM
Thanks for such a quick response MrJohnnyB!

We firmly believe that we are not. The claims include such things as £110 for cleaning (the property was spotless when we moved out thanks to T and their families and they cannot provide receipts), and £320 for a 'heavily stained mattress and bed' - again we dispute any damage to any bed whatsoever as everything in the property was looked after meticulously over the short 10 month period we lived in the property. Also the bed that was moved into the property was not the same as the bed/mattress that was signed for on the inventory. £10.99 for a small hole in a toilet mat... Four men using the same toilet for 10 months, surely this is wear and tear?! Based on our experience with LL over the 10 month period of them quoting innacurate laws at us, we believe they're trying to pull the wool over our eyes and we have no one to turn to =(

Thanks so much for the help!

Jidoujoe

MrJohnnyB
18-07-2011, 15:16 PM
How was contract change treated when new T moved in and old T left? New AST for all and old one surrendered?

jidoujoe
18-07-2011, 15:27 PM
How was contract change treated when new T moved in and old T left? New AST for all and old one surrendered?

As far as I remember, the new T just signed the existing AST.

Thanks again.

MrJohnnyB
18-07-2011, 15:56 PM
So effectively the old AST was surrendered and new agreement formed on the basis of the old one with replacement tenant. Landlord should have refunded deposit and reprotected I think. Which means LL could be liable for failure to protect the deposit. Either that or the benefit of the protected deposit should have been assigned to new T, together with liabilities.

jidoujoe
18-07-2011, 16:09 PM
Thanks very much for the information.

I'll run that by the relevant people and let you know what happens. Even if we don't get it back it will make an interesting case study I suppose!

Thanks again

Joe

westminster
18-07-2011, 20:09 PM
The desposits of J, T, L and D (Total: £1480, £541 of which is being disputed), were registered with the Deposit Protection Service at the start of the tenancy, however, the LL failed to inform the DPS that 'D' left the property in the first month of the tenancy and was replaced with housemate 'P'.
You say that 'P' simply signed the existing tenancy contract (no formal assignment)? What happened with the deposit paid by 'D' when he vacated? Did LL refund it to him, or did 'P' pay his deposit to 'D'?


I have read that if the deposit of an individual was not registered with the DPS, the full amount should be returned to us as the deposit is then forefit. Is this the case?
No.


If not, what implications does the lack of update mean for us as tenants as 'D' is still listed on the DPS site as being a tenant and therefore, when trying to reclaim 'P's section of the deposit, it comes under 'D's name.
Note that the deposit is a joint one, just as the tenancy was - there is no 'share' of the deposit just as there was no 'share' of the rent (though obviously, JTs can privately agree on 'shares').

If D's position on the contract was not formally assigned to P, then arguably the tenancy continued with D remaining as one of the legal tenants. You need to tell us more about the change of tenant and whether P paid a deposit to LL or not etc.

westminster
18-07-2011, 20:15 PM
As whilst you could probably force a repayment because of the lack of protection of P's deposit, it would not preclude LL from then taking individual/joint tenants to court for the monies.
How? There is no automatic refund if a deposit isn't protected.

Also, OP has yet to clarify that P's 'share' of the deposit was paid to LL and not to the outgoing tenant.


So effectively the old AST was surrendered and new agreement formed on the basis of the old one with replacement tenant. Landlord should have refunded deposit and reprotected I think.
Only if there were a new tenancy, and since the incoming T signed the existing contract that doesn't seem like the most likely scenario.


Which means LL could be liable for failure to protect the deposit.
Liable in what way? If you mean a claim for non-compliance, the tenant has no claim after the tenancy has ended (following the judgment in Gladehurst v Hashemi).

jidoujoe
19-07-2011, 11:26 AM
Thank you once again for such in depth responses.

'D's deposit was not refunded. Instead, 'P' paid his deposit to 'D' and LL suggested that this would be sufficient, yet the names in the DPS documents have not been changed.

When 'P' signed the contract, no new contract was drawn up. He simply signed the existing AST (the one the original 4 of us signed) under 'D's name after both tenants signing a document to transfer the tenancy.

Hopefully this is a bit clearer.

MrJohnnyB
19-07-2011, 11:31 AM
Only if there were a new tenancy, and since the incoming T signed the existing contract that doesn't seem like the most likely scenario.

I cannot see how one party could simply be added and another party removed without carrying out an assignment document. All additions to a lease agreement need to be mutually agreed and documented appropriately.

With regard to my reference. It was in relation to force repayment, not seeking the 3x rule.

westminster
19-07-2011, 12:08 PM
'D's deposit was not refunded. Instead, 'P' paid his deposit to 'D' and LL suggested that this would be sufficient, yet the names in the DPS documents have not been changed.
Therefore P has not paid a deposit to LL - so there's no payment for LL to protect.


When 'P' signed the contract, no new contract was drawn up. He simply signed the existing AST (the one the original 4 of us signed) under 'D's name after both tenants signing a document to transfer the tenancy.
.
This doesn't sound as if the assignment was done properly - all the tenants should have agreed to it, not just D.

So, arguably, P is not one of the tenants and the tenancy of J/T/L/D is still in place. In which case, the deposit protection is as it should be. It will not help you if you argue that the protection is invalid, in any case.

Just raise a dispute with the scheme if you/LL cannot agree on deductions. If and when the deposit is refunded by the scheme, you can simply give P his 'share'.

MrJohnnyB
19-07-2011, 12:15 PM
So, arguably, P is not one of the tenants and the tenancy of J/T/L/D is still in place. In which case, the deposit protection is as it should be. It will not help you if you argue that the protection is invalid, in any case.


I do not believe that it could be contended that a person who plainly occupied the property was not a tenant. If they've occupied the premises in such an open fashion and LL has accepted rent on that basis then it could not easily be argued that D was in fact the tenant.

If the payment was made between P & D under the instruction of LL then plainly it should have been changed with the beneficiary being P and not D.

westminster
19-07-2011, 12:25 PM
I do not believe that it could be contended that a person who plainly occupied the property was not a tenant. If they've occupied the premises in such an open fashion and LL has accepted rent on that basis then it could not easily be argued that D was in fact the tenant.
If the assignment was not done by deed, with all parties' agreement, then the situation cannot be black and white (and we don't know what the arrangements were for paying rent - it might have been paid via the lead tenant's account, for example). Only a court could decide whether P's status was that of a joint tenant. Equally, he might be an excluded occupier. Occupation doesn't equate to having a tenancy.


If the payment was made between P & D under the instruction of LL then plainly it should have been changed with the beneficiary being P and not D.
Perhaps, but again it's a grey area, and how exactly does it help OP if he argues that the protection is invalid and the DPS thus refuses to adjudicate?

jidoujoe
19-07-2011, 13:23 PM
In which case I'll just have to raise a dispute.

If it makes any difference, we were instructed to pay the rent (£370 pppm) via standing order (individually), from our individual bank accounts.

If I argue that the deposit was not protected (in the instance that the tenancy WAS in fact transferred correctly), am I to understand that the DPS would in fact not adjudicate any dispute? None of the tenants can afford to go to court so I fear that the disputed amount is in fact lost.

The main issue is the fact that one of the beds in the property (LL claiming £320 for 'heavily stained mattress and bed') was and should have been in perfect condition when we left the property so we have no way of knowing how or why the bed and mattress were stained and fear that we are being, for want of a better phrase, taken for a ride. The LL is insisting that is was cause by us as tenants and as we have no evidence to the contrary, I have been seeking alternative methods to reclaim the deposit.

westminster
19-07-2011, 14:49 PM
If I argue that the deposit was not protected (in the instance that the tenancy WAS in fact transferred correctly), am I to understand that the DPS would in fact not adjudicate any dispute?
Possibly not. I can see no possible benefit in arguing that the protection is invalid.


None of the tenants can afford to go to court so I fear that the disputed amount is in fact lost.
Court fees are fairly low if you are claiming less than £5,000. e.g. to claim £1,000 would cost £140-150 (depending on whether you claimed via Money Claim Online or on a paper form N1). You can claim as joint claimants so the costs would be shared, and you'd be awarded the fees if you won the claim. Your claim would be allocated to the small claims track, for which you do not need a solicitor or legal representation.


The LL is insisting that is was cause by us as tenants and as we have no evidence to the contrary, I have been seeking alternative methods to reclaim the deposit.
The only two methods are deposit scheme adjudication or the county court. Either way, the LL would need evidence of before and after condition.

See the deposit scheme guidance - the last one in the list in this link headed 'A guide to tenancy deposits, disputes and damages'.
http://www.depositprotection.com/document-library/processes.aspx

jidoujoe
27-07-2011, 07:14 AM
I hadn't realised court would be quite as cheap as that!

We're just awaiting the LL evidence through the scheme now and hopefully we'll have a bit of luck.

Once again, thank you very much for your time and advice.