Tenancy Deposit - Not Returned in Full

[oakridge]

My daughter rented a house, with 5 other students, in Cardiff (July 2004 to June 2005). They each paid a deposit of £230 (£1380). When they vacated the agent came up with a whole list of issues as to the condition of the contents/décor etc and only returned a total of £470. We asked for documentary evidence explaining the costs involved and also a signed copy of the Inventory taken before they occupied the property – my daughter says none of them signed one.

The agent has written back with only vague details but no real breakdown of why they deducted about £800. They have also sent an Inventory, which is not signed by themselves or any of the 6 students. In it, there are items of furniture which never existed (e.g. chest of drawers in the bedroom, table/chairs in the kitchen) and also stating the condition of some as brand new (e.g. a clapped out vacuum cleaner).

My daughter disputes the agent’s justifications for with-holding the full return of their deposit and I can confirm, certainly with some of it, that to be the case. I have written to the agent threatening legal proceedings but they are still being stubborn. The tenancy agreement has the agent's name on and not the landlord so they being who the contract is with will be who we make the claim from ?

My assumption is that without an agreed Inventory, as a basis to work from, they cannot prove the original condition and therefore the condition when the house was vacated.

Brian

[MrShed]

My daughter rented a house, with 5 other students, in Cardiff (July 2004 to June 2005). They each paid a deposit of £230 (£1380). When they vacated the agent came up with a whole list of issues as to the condition of the contents/décor etc and only returned a total of £470. We asked for documentary evidence explaining the costs involved and also a signed copy of the Inventory taken before they occupied the property – my daughter says none of them signed one.

No signed inventory no deductions....simple as that. Sue for the full amount of the deductions.

The agent has written back with only vague details but no real breakdown of why they deducted about £800.

They legally must give you full receipts for all deductions. Not that this matters in your case.

They have also sent an Inventory, which is not signed by themselves or any of the 6 students. In it, there are items of furniture which never existed (e.g. chest of drawers in the bedroom, table/chairs in the kitchen) and also stating the condition of some as brand new (e.g. a clapped out vacuum cleaner).

My daughter disputes the agent’s justifications for with-holding the full return of their deposit and I can confirm, certainly with some of it, that to be the case. I have written to the agent threatening legal proceedings but they are still being stubborn. The tenancy agreement has the agent's name on and not the landlord so they being who the contract is with will be who we make the claim from ?


You sue the landlord.


My assumption is that without an agreed Inventory, as a basis to work from, they cannot prove the original condition and therefore the condition when the house was vacated.

Correct.

Brian

Sue him and as I say sue for the entire amount....you are entitled to it.

[oakridge]

Thanks MrShed

It does seem strange that she can sue the landlord when there is no legal contract. Also, all correspondence, so far, has been to the agent given them time to sort things out before taken legal action. Do we have to start this again with the landlord or are the agents legally obligated to inform the landlord what has taken place so far ?

Brian

[dazalock]

Your daughter has a contract with the Landlord, the agent is just that, a agent working for the Landlord. If you sue the Landlord and win (you almost certainly will) its upto the Landlord to sue the agent for acting wrongly.

[oakridge]

Thanks dazalock

I will have to get the name and address of the landlord from the agent so it can be entered on the claim form. From another thread I see the agent has to give this if requested in writing but, hopefully, it will jist need a phone call.

Brian

[dazalock]

Your quite right!

[oakridge]

Thanks again MrShed and dazalock. Will update the thread as I make any progress.

Brian

[MrShed]

What I was going to do(I had a similar issue about a month ago with my old landlord) was exhaust the avenue of discussion with the agent, then write a letter to the landlord, enclosing all prior communication with the agent, and stating that you are sorry, but you are having no luck with the agent and the landlord is responsible so you want the money in 14 days or you will pursue to small claims. You must at least do this, I do not believe you have to do anything else, you just need to show that you have tried to resolve the matter outside of court. The agent is only an intermediary, the landlord always has ultimate responsibility.

If you want any extra advice post again....I found out a lot on this kind of matter when I was dealing with my similar problem.

Sorry this post should have been made earlier...but internet buggered! So sorry if it repeats any of what was said.

With regards the address of the landlord, there is some confusion as to whether, as she is now not TECHNICALLY a tenant, the agent legally has to give that information. Try anyway, failing that simply serve any papers/make any contact to the landlord care of the agent....the agent must then give that to the landlord. Hopefully you know the name! If not, a simple land registry search for a few quid will do the trick.

Let us know how you get on.

[oakridge]

MrShed
I was assuming (prehaps wrongly) that the agent was keeping the landlord updated with our correspondence. When my deadline to pay up has expired I will start by ringing them to ask for the landlords details. If they refuse then use the land registry route - will be quicker (and can always add the cost to the claim as an expense).

Brian

P S will certainly keep you posted

[Paul_f]

Thanks dazalock

I will have to get the name and address of the landlord from the agent so it can be entered on the claim form. From another thread I see the agent has to give this if requested in writing but, hopefully, it will jist need a phone call.

BrianUnfortunately you are only entitled to the landlord's name and address under the following circumstances:

You request it in writing
You are the tenant (not the ex-tenant or the tenant's dad!)
You see your daughter and her chums are now ex-tenants, so they (not you) might have to sue the agent in the absence of the agent refusing to give you the landlord's name, but I'm sure you will give them the opportunity of telling you who he is first!

[oakridge]

Hi Paul_f

Thanks for your comments.

Firstly, everything is being done in my daughters name - letters and phone calls. I'm just there to do the nitty-gritty legwork etc.

Should the agent refuse to give the name of the landlord it will be explained to them that without it there is not alternative but to sue them instead. It would be very surprising if they didn't. Also there's always the land registry.

It's an interesting point about not being entitled to the name if you are an "ex-tenant".

Brian

[MrShed]

I would very much doubt that you can "sue them instead". They do not have a legal obligation to give you the details any longer. I would merely suggest to the agent that if you have to go to land registry you will add these costs on to the suit and explain to the landlord why they have been added. I do not think an agent would want to piss off a landlord because of it! There is no real reason why an agent should deny this request, unless really they know that they are being unreasonable. This situation is what would lead my to say that you should always request the landlords details at the beginning of a tenancy....easy to get then and always convenient to have!

[S J]

An interesting post and replies which contain some issues worth a comment.
The original post has some ommisions which need to be clarified before any answer can be given. The original post refers to a letting with more than one person. What we need to know is whether she was the tenant with the other tenants being sub-tenants or were they are all joint tenants.

Secondly, whilst it is being denied that the landlord/ agent is entitled to withold the deposit, there is no mention as to whether there was any damage of any kind.

I will also disagree with one of the posts which makes reference to the landlord not being entitled to retain a deposit or any part thereof, in the absence of a signed inventory. This is wholly innacurate and any claims for deposits brought on this basis alone will fail.

The landlord is entitled to damages/ compensation for damage to his/her property arising from the tenants acts/ ommisions. Such damages are first recoverable by retntion of the deposit or an amount equivalent to making good the damage, from the deposit, with the reaminder (if any) being returnable to the tenant. The absence of a signed inventory is of very little relevance.

If the damage is being disputed then it will come down to a case of their word against yours. Your daughter will have to give evidence (in any proceedings) along with the other tenants/ residents to say what the property was in when they started the tenancy and its condiion when thy left.

The landlord/ agent will give evidence about the same and the courts will have to decide. A prudent tenant would have kept some form of evidence of the condition such as photos etc.

Also there is no legal obligation to have to provide 'full receipts'. There is just an obligation to provide evidence of the expenditure.

I remember representing a client in a similar position 2 years ago. They also took no sensible steps to collect evidence of the property when they left. Fortunately the landlord put the house up for sale on the last day of the tenancy and the estate agent took photos of the interior. I obtained disclosure of those photos with a court order and they were admitted as evidence. The photos clearly showed the condition of the property on the last day.

It may be helpfull to start thinking more laterally with regard to collecting your evidence before thinking of suing.

Also, if you are going to sue then you will need to sue the landlord and thier agents. If you dont have the lanldords name/ address then you will have to sue the agent and then ask the court to order disclosure of the landlords name and address for them to be included as a liable party.

[MrShed]

SJ, I am afraid that, although you are probably more experienced than me(most people are :D), I strongly disagree with you in several areas:

- If I put(I believe it was me) that a lack of inventory automatically means full deposit, then I apologise. However, it is certainly extremely important! The landlord must, if claiming money from the deposit, have some form of proof that the condition of the property was not how it was originally let. An inventory is the standard way of doing this. Yes, there are other ways, such as photographs, receipts for works done, and possibly witnesses, however these are not as reliable as a full detailed inventory, as none of these will cover the entire property. And, it is extremely useful to have a signed inventory with the tenants, as then they cannot dispute the state of the property at the stare, whereas with photographs etc they could say that the time between said photo and them taking up occupancy was the time in which damage occurred.

- It will not come down to their word against yours. The onus would be on the landlord to prove that the tenants have caused the damage to the property. Hence the importance of a signed inventory, as it allows them to prove the condition of the property at the start of the tenancy. Without this, it will be very difficult to do so. Without proof, the deposit will go to the tenant.

- My apologies, maybe full receipts arent required as such. However, evidence of expenditure as you say it is almost what I would consider to be receipts.

- And you say sue the agents. Why? The agents no longer have a legal obligation to give the landlords name and address, as the ex-tenant is just that...an EX-tenant.

Reply as you wish :D

[MrShed]

I remember representing a client in a similar position 2 years ago. They also took no sensible steps to collect evidence of the property when they left. Fortunately the landlord put the house up for sale on the last day of the tenancy and the estate agent took photos of the interior. I obtained disclosure of those photos with a court order and they were admitted as evidence. The photos clearly showed the condition of the property on the last day.



You have not told us the full story here however. What did they compare these photos to? There has to be a comparison to the property at the start of the tenancy, otherwise it can merely be claimed that the property was like that when the tenants took up occupancy(and if they did not claim this, then they are foolish!).

[S J]

I think we shall have to agree to disagree on these points.

The lack of an inventory signed or otherwise, does not in anyway prevent a landlord’s claim for damages. An inventory is simply one form of evidence. Whilst an inventory may be a ‘standard way’ of providing some evidence of condition it is not the only way. There are many lettings where there are no inventories, which comes back down to ‘he said/ she said’ when there is a dispute.

The onus is on the landlord to prove the claim. This can be done by simply making the allegation and presenting supporting evidence from witnesses. Where the landlord fails to establish the complaint, then and only then will there be a finding that the deposit is to be returned in full.

I recommend suing the agents as joint/ co-defendants for this reason – a tenant brings a claim against the landlord and the landlord files a defence to say that he authorised the agent to pay….what does the claimant do next…Furthermore, its an easier way of obtaining the landlords details.

In response to the second post the only comparison necessary was between the photos and the alleged damage. That’s where it starts and ends. As for the tenants claiming the condition was pre existing, I unable to recommend that anyone is untruthful in their claim/ defence particulars. There is a clear difference between dishonesty and foolishness.

[MrShed]

While please dont get me wrong, I fully respect people's opinions :p (nice to have a bit of debate!!), some things you have stated are just factually wrong. Namely, co-suing the landlord and agent. You have said "a tenant brings a claim against the landlord and the landlord files a defence to say that he authorised the agent to pay". So what? That is not a valid defence, at all. If the landlord wants to mitigate his losses, he has to then sue the agent. The tenant cannot sue the agent in respect to the deposit, fact.

You also contradict yourself in one area....you say it comes to "he said/she said". However, it doesnt really, as the onus is on the landlord to prove the damage. So it is "he proves/she disproves". This is a massive difference.

And you say compare the photos to the alleged damage. You mean the photos taken at end of tenancy, and alleged damage taken at the end of the tenancy? The tenants will only have lost this if they did not contest it. As if the tenants stated the property was already like that, then you have zippo to prove them otherwise, and so have no proof that they caused that damage.

Please dont get me wrong, I am not stating that I am completely correct(apart from the first part, I am 100% positive on that). But this is my strong opinion based upon my(limited)experience, much reading of these forums, and common sense.

[S J]

I think some of the points have been missed and it would make no sense to continue repeating them. As for being right, I dont profess to be right, merely advancing my opinions.

As for the suing issue, the expressed opinion does not suggest that it would be a complete or valid defence but a an option which prevents any delays and adjournments and a tactic for obtaining information which may otherwise be refused.

[oakridge]

I see a discussion has started from my original thread. Just to update you all, I issued a claim (through moneyclaim online) for the rent owed to my daughter (in her name) plus additional costs. This was done on 29th September and the landlord has until the 17th October to file a defence. As this is tomorrow and no defence has been put forward yet it seems that this may not be tested in court and we will be awarded judgement by default. Prehaps this is because the landlord either thinks he cannot defend it or just can't be bothered.

[JimS]

Why the mystery about the landlord's identity? It will be written on the tenancy agreement, together with a UK address at which notices can be served, otherwise the agreement would not have been valid.

By the way I have to agree with SJ here regarding a) you need to sue both landlord and agent, and b) an inventory would have helped, but it's not essential.
Must rush, the pubs are open!

[aye5ha4u]

Landlords can be sly when returning deposit what you need is proof of cost like receipts etc no signed inventury sounds dodgy I suggest you get advise from legal advisor they know the law better than we do. ;)

[MrShed]

Why the mystery about the landlord's identity? It will be written on the tenancy agreement, together with a UK address at which notices can be served, otherwise the agreement would not have been valid.

By the way I have to agree with SJ here regarding a) you need to sue both landlord and agent, and b) an inventory would have helped, but it's not essential.
Must rush, the pubs are open!

Yes I think you are missing something. Although an AST should state the name, it certainly does not need to state the address of the landlord. And why you agree with SJ on those points I am unsure, there is ZERO legal basis for suing the agent.

[mjpl]

JimS I believe that you are referring to Section 47 and I agree with you. Instead of serving additional 47 and 48 notices we have built them into our Tenancy Agreement so that a tenant will always be aware of the Landlord's address wherever they are.

There is no point suing the agent. The agent does not have a contract with the tenant. The only occassion where this may differ is where the deposit is held as stakeholder and the agent is failing to adhere to the duties placed upon them.

SJ It is interesting to have your posts, it also demonstrates that a lot of people on this site end up quoting ARLA requirements as law. Quite often it is not.