PDA

View Full Version : Help Please - Tenant threatening legal action re DPS



amberleaf
13-10-2011, 11:54 AM
Hi,
I just wanted some advice.
Recently finished renting my flat.
The tenant was it is fair to say, emotionally unstable.
in the end they were threatening, manipulative and abusive.
We changed the locks and took it off their deposit.
They are now threatening to take legal action through the DPS.
We were stupidly naive not to know about this, but wonder if we have any legal grounds still.
The initial contract had actually run out and no further contract was signed. With that being the case, does that mean there was no need to put our deposit to a third party in accordance with the DPS?
Or would we still be liable to pay the tenant 3 x the amount?
It's for £102.
We can prove the threats to our security and property, but haven't logged anything with the police.

Thanks
Amber

theartfullodger
13-10-2011, 12:09 PM
Had the tenant left, taken all their belongings and left before the very end of the initial fixed term?? Do you have anything in writing from Tenant stating they have left??

Is anyone in residence in the property now??

re..

We changed the locks and took it off their deposit.
What did you "take off deposit" ? The cost of the lock changing??

amberleaf
13-10-2011, 12:43 PM
Oh yes they've left. We are living there now. And we have had recipts of bills paid.

theartfullodger
13-10-2011, 12:52 PM
Belinda, please.....


I asked most of the other questions to try & establish if the tenant could assert they still have a tenancy which has not been ended and thus sue for rather heavier-weight matters, unlawful eviction....

Had the tenancy been ended by court order or surrender of tenancy (with paperwork proof??)

What is "for £102"?? Damage tenant caused or your costs for changing locks?? Does the tenancy have clauses allowing you to deduct costs of lock changing if that's what it was...

Me, I always change locks after a tenant leaves anyway & never charge them. In your shoes I'd pay the £102 to avoid DPS adjudication or a court case....

LesleyAnne
13-10-2011, 12:57 PM
Changing the locks is usually a cost borne by the LL, not the tenant. It is always wise to change locks between tenants, and this should be a cost allowable against your tax return, so I doubt any claim for a deduction from the deposit for lock changing would stand up in court.

However, you still have not answered the question above. How did the tenancy end - did you give notice, or the tenant give notice? How do you know tenant had moved out at the point when you changed the locks?

These questions are relevant because if you served notice on the tenant to leave, your notice would not have been valid if the deposit was not protected at the time it was issued. Secondly, if you change locks without knowing definately that the tenancy had ended, ie tenant returning the keys, signing a surrender of the tenancy etc, you could be charged with illegal eviction.

Was the tenancy in England/Wales? When did it start, when did it end? Was there a fixed term?

amberleaf
13-10-2011, 13:41 PM
Right.

Thanks for the advice.
To clarify the tenant had 2 months written notice of the end of the agreement and agreed a date to move out.
They failed to move out at the agreed time and then absconded without exchanging on the property.
IE we didn't have the key and didn't have chance to check the property with them there.

I really don't want to get taken to court. So I think I'll pay.

theartfullodger
13-10-2011, 13:58 PM
Think you are right...

As I read it tenant could claim they still have a tenancy (would probably lose but I'd not want the bother...).

I'd pay by cheque (so I could prove I'd paid..), take copy ...

LesleyAnne
13-10-2011, 14:08 PM
I would agree with Artful. As you have had no formal end to the tenancy, ie tenant did not surrender the key, and effectively still has a valid claim to return, you must be very careful not to get other claims against you. Whilst it is always annoying that tenants seem to get away with things like this, the risk of an illegal eviction claim (should the tenant take advice and discover this might apply), would be far more than the current action against you. Illegal eviction can carry very hefty fines, and even a prison sentence. Just because T has apparently "left", you did not secure re-possession through the courts, so in a judge's eye, the tenancy could still valid. There are rules and procedures covering abandonment, but I suspect you have already jumped the gun here by moving back into the property.

For a quiet life, I would pay up and put it down to experience!

westminster
13-10-2011, 15:27 PM
We changed the locks and took it off their deposit.
They are now threatening to take legal action through the DPS.
We were stupidly naive not to know about this, but wonder if we have any legal grounds still.
The initial contract had actually run out and no further contract was signed. With that being the case, does that mean there was no need to put our deposit to a third party in accordance with the DPS?
Or would we still be liable to pay the tenant 3 x the amount?
It's for £102.

When a fixed term of an assured shorthold tenancy expires, and a T is in occupation at expiry, then a statutory periodic tenancy (a.k.a. rolling contract) will automatically arise, i.e. the tenancy doesn't just 'stop'.

If this was an AST, any deposit paid by the T must be protected in one of three authorized deposit protection schemes. It need not be re-protected if a statutory periodic tenancy arises following the fixed term.

If a LL fails to comply with deposit protection, the T may bring a county court claim (during the tenancy) for 3x the value of the deposit under s.214 Housing Act 2004. The court will not order the LL to pay 3x the deposit if LL protects the deposit before the court hearing. The T has no claim for non-compliance after the tenancy has ended, if it has been lawfully ended.

The T cannot "take legal action" or make a non-compliance claim "through the DPS". (When a deposit is protected, deposit schemes offer an optional dispute adjudication service to settle end of tenancy disputes in respect of the deposit only.)



To clarify the tenant had 2 months written notice of the end of the agreement and agreed a date to move out.
They failed to move out at the agreed time and then absconded without exchanging on the property.

Assuming it was a s.21 notice you served, this is not a notice to quit, and does not end the tenancy nor oblige the T to vacate at notice expiry. Nor does it prevent a statutory periodic tenancy arising. It merely entitles the LL to apply for possession after notice expiry.

LesleyAnne
13-10-2011, 15:51 PM
And indeed, an S21 is invalid if no DPS for the deposit at the time of issue.