ex tenants deposit claim
Discussion
mobbsy30 said:
Thanks again for all the helpful replies, I have drafted a letter which I will send to the solicitor along with a statement of arrears.
the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
Her solicitors will be a no win/no fee type, they will probably know about her arrears, as they will have made an assessment of whether or not it is worth pursuing.the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
They might think they don't really have a case and are just sending a letter to test the water, but I would imagine they know they have you, and that's why they are taking it on.
You really need to take some legal advice. I don't think it's a simple as you sending that letter back and then they'll just drop it. You're being taken to court for not protecting the deposit, her rent arrears are not related to that. It would be two different claims, I think?
They might not be worried about you trying to bring a counterclaim for the rent because they know it's a separate issue and once they have their cut and the tenant gets their money, they know there's no way for you to get your hands on it without following all the procedures for making a claim. If you don't have their address, you can't even serve the papers on them.
Slagathore said:
mobbsy30 said:
Thanks again for all the helpful replies, I have drafted a letter which I will send to the solicitor along with a statement of arrears.
the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
Her solicitors will be a no win/no fee type, they will probably know about her arrears, as they will have made an assessment of whether or not it is worth pursuing.the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
They might think they don't really have a case and are just sending a letter to test the water, but I would imagine they know they have you, and that's why they are taking it on.
You really need to take some legal advice. I don't think it's a simple as you sending that letter back and then they'll just drop it. You're being taken to court for not protecting the deposit, her rent arrears are not related to that. It would be two different claims, I think?
They might not be worried about you trying to bring a counterclaim for the rent because they know it's a separate issue and once they have their cut and the tenant gets their money, they know there's no way for you to get your hands on it without following all the procedures for making a claim. If you don't have their address, you can't even serve the papers on them.
mobbsy30 said:
Thanks again for all the helpful replies, I have drafted a letter which I will send to the solicitor along with a statement of arrears.
the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
Both in my private life and as a LL, I have had many threats of legal action, with only one person, an eccentric architect, proceeding to the court, and with a solicitor’s assistance, that I shall always be grateful for, I/we came away with a good result.
If I were in a similar situation to the OP, I would not at this time admit to failing to protect the Deposit, my response to the solicitor’s letter would be that their client/tenant, ended her tenancy without both serving Notice, leaving with a large amount of rental arrears, and without leaving a forwarding address. Their client’s Deposit monies was returned, by way of using the same to reduce those rental arrears.
If legal proceedings are commenced, then at a later date and before a court hearing, an offer by the OP to reach a settlement, will go a long way in the OP's favour
the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
Both in my private life and as a LL, I have had many threats of legal action, with only one person, an eccentric architect, proceeding to the court, and with a solicitor’s assistance, that I shall always be grateful for, I/we came away with a good result.
If I were in a similar situation to the OP, I would not at this time admit to failing to protect the Deposit, my response to the solicitor’s letter would be that their client/tenant, ended her tenancy without both serving Notice, leaving with a large amount of rental arrears, and without leaving a forwarding address. Their client’s Deposit monies was returned, by way of using the same to reduce those rental arrears.
If legal proceedings are commenced, then at a later date and before a court hearing, an offer by the OP to reach a settlement, will go a long way in the OP's favour
Edited by Wings on Sunday 10th September 18:56
alfie2244 said:
Would starting a small claim for the unpaid rental monies and addressing it via the solicitor's address influence anything?
I honestly don't know.I wouldn't have thought it would, though. They are not representing her for that, or she hasn't instructed them to, they are pursuing the deposit protection penalty.
I think he really needs to get some legal advice before he does anything else. A decent lawyer may be able to get the situation to pan out so they can at least get a claim started for the unpaid rent, and get her new address etc so they can issue the paperwork etc.
The issue normally when tenants do a runner is there is no forwarding address so you can't go through the process of sending them the paperwork. If he sees her in court, he could give it to her then? And it would be witnessed etc. Maybe he can use her successful claim against him to show she has the money to pay the rent arrears, but with the timescales involved, it could be months before he gets to court on the rent arrears, by which point, she could have spent it all and have nothing to pay him back with anyway.
I could be completely wrong, of course, but I think they would be two separate issues in the eyes of the courts.
Slagathore said:
alfie2244 said:
Would starting a small claim for the unpaid rental monies and addressing it via the solicitor's address influence anything?
I honestly don't know.I wouldn't have thought it would, though. They are not representing her for that, or she hasn't instructed them to, they are pursuing the deposit protection penalty.
I think he really needs to get some legal advice before he does anything else. A decent lawyer may be able to get the situation to pan out so they can at least get a claim started for the unpaid rent, and get her new address etc so they can issue the paperwork etc.
The issue normally when tenants do a runner is there is no forwarding address so you can't go through the process of sending them the paperwork. If he sees her in court, he could give it to her then? And it would be witnessed etc. Maybe he can use her successful claim against him to show she has the money to pay the rent arrears, but with the timescales involved, it could be months before he gets to court on the rent arrears, by which point, she could have spent it all and have nothing to pay him back with anyway.
I could be completely wrong, of course, but I think they would be two separate issues in the eyes of the courts.
Would be interesting to know the legal position of issuing a claim via her solicitors even though, as you say, they are only representing her in the matter of the deposit..
Not sure if I am right or not but if he offered not to pursue rent owed in exchange for dropping their deposit claim I think this may show he has tried to resolve without the need for a Court hearing and would not be used against him if it actually got to Court...which I personally doubt.
eta OP please don't do what I suggest as IANAL and just putting some ideas of what I may do out there as a bit of a sounding board.
Edited by alfie2244 on Sunday 10th September 21:07
Dont pay a penny, you owe them nothing. The tenant had no right to any deposit back, they are chancers.
The solicitors probably dont that you are owed money as they probably would not have dealt with the matter. May be done through legal expenses insurance.
Write back to the solicitor, ask if they are aware of what you are owed and advise that you will make a counter claim and that you will draw their conduct and their client's to the Court.
The solicitors probably dont that you are owed money as they probably would not have dealt with the matter. May be done through legal expenses insurance.
Write back to the solicitor, ask if they are aware of what you are owed and advise that you will make a counter claim and that you will draw their conduct and their client's to the Court.
SydneyBridge said:
Dont pay a penny, you owe them nothing. The tenant had no right to any deposit back, they are chancers.
The solicitors probably dont that you are owed money as they probably would not have dealt with the matter. May be done through legal expenses insurance.
Write back to the solicitor, ask if they are aware of what you are owed and advise that you will make a counter claim and that you will draw their conduct and their client's to the Court.
Have you read the thread, do you know anything about the deposit protection laws? It's not about them claiming the deposit back, it's about the penalty for failing to protect, as stipulated by the Housing Act.The solicitors probably dont that you are owed money as they probably would not have dealt with the matter. May be done through legal expenses insurance.
Write back to the solicitor, ask if they are aware of what you are owed and advise that you will make a counter claim and that you will draw their conduct and their client's to the Court.
Toltec said:
Is this meant to be a fine or compensation?
Fines do not normally go to the victim and if the tenant gets the full deposit back what loss have they suffered to require compensation?
Housing Act 2004, Section 214:Fines do not normally go to the victim and if the tenant gets the full deposit back what loss have they suffered to require compensation?
(3A)The court may order the person who appears to the court to be holding the deposit to repay all or part of it to the applicant within the period of 14 days beginning with the date of the making of the order.]
(4)The court must F7... order the landlord to pay to the applicant a sum of money [F8 not less than the amount of the deposit and not more than ] three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.
It's not a fine, and I guess it's not strictly compensation either, best term is probably penalty or sanction? Interesting that it has been amended with the bit in square brackets, originally it used to be a strict 'three times the amount of the deposit', and the judge had no discretion to reduce it.
mobbsy30 said:
Thanks again for all the helpful replies, I have drafted a letter which I will send to the solicitor along with a statement of arrears.
the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
Don't send anything without taking proper legal advice! At the very least make sure your letter is headed "without prejudice". Your wife has probably already prejudiced your position once with the offer she'd already made. And don't apologise to them, that's not going to achieve anything other give an admission of guilt. Just put them on notice of the rent arrears, and that you intend to counterclaim for it. the letter basically says that, I apologise to them for my failure to protect the deposit and that I am willing to return to them the deposit and pay them the maximum penalty amount minus the arrears in full and final settlement . This rather neatly comes to the original deposit amount plus £50. I will enclose a cheque for that amount and hopefully the solicitor (who I doubt is aware of the arrears) will take one look and think that it isn't worth going to court over. Although I suspect they will try to up the amount.
However if I know her, she won't be able to turn down money now, on the basis of possibly getting more money later.
updates to come when I hear more.
If they're a no win, no fee outfit (which sounds likely), they aren't going to settle for £50. If it went to court and the judge awarded her any penalty, right up to the full 3x (which they may not, given the flexibility of the revised law, then offset it (assuming your counter claim for missing rent), her solicitor might class that as a victory, done our bit, and deduct their fees from her winnings (that she hasn't actually received). So she may end up out of pocket, which would be a tempting way to play it. The risk is that you have to prove to the judge's satisfaction that your counter claim for the rent is legit. I guess you've got a good argument for why you didn't pursue it sooner or repay the deposit, on that she did a runner, and you haven't been able to trace her, until now.
Slagathore said:
alfie2244 said:
Would starting a small claim for the unpaid rental monies and addressing it via the solicitor's address influence anything?
I honestly don't know.I wouldn't have thought it would, though. They are not representing her for that, or she hasn't instructed them to, they are pursuing the deposit protection penalty.
I think he really needs to get some legal advice before he does anything else. A decent lawyer may be able to get the situation to pan out so they can at least get a claim started for the unpaid rent, and get her new address etc so they can issue the paperwork etc.
The issue normally when tenants do a runner is there is no forwarding address so you can't go through the process of sending them the paperwork. If he sees her in court, he could give it to her then? And it would be witnessed etc. Maybe he can use her successful claim against him to show she has the money to pay the rent arrears, but with the timescales involved, it could be months before he gets to court on the rent arrears, by which point, she could have spent it all and have nothing to pay him back with anyway.
I could be completely wrong, of course, but I think they would be two separate issues in the eyes of the courts.
The transcript is unequivocal that the Court of Appeal only concerned itself with the Housing Act breach. We have no clue as to how the the Deputy District Judge's Order dealt with the alleged rent arrears.
I wouldn't want to gamble on the ex-tenants solicitor not being au fait with that case.
I'm not convinced that such a counterclaim can be offset against whatever penalty amount is awarded. I reckon it would only be against the deposit sum as that is it's purpose. If I'm right, the OP will still be on the hook for a substantial payout.
Wings is an experienced LL. I doubt he neglects to perform his legal obligations hence why only one eccentric person has taken him to court.
SydneyBridge said:
Dont pay a penny, you owe them nothing. The tenant had no right to any deposit back, they are chancers.
The solicitors probably dont that you are owed money as they probably would not have dealt with the matter. May be done through legal expenses insurance.
Write back to the solicitor, ask if they are aware of what you are owed and advise that you will make a counter claim and that you will draw their conduct and their client's to the Court.
Chancer or not, the OP's main problem is the financial cost of his breach of the provisions of the Housing Act. I don't see how he will be able to wriggle out of that. One thing is for sure, he should first seek professional advice on his best course of action going forward, especially given his previous mistakes.The solicitors probably dont that you are owed money as they probably would not have dealt with the matter. May be done through legal expenses insurance.
Write back to the solicitor, ask if they are aware of what you are owed and advise that you will make a counter claim and that you will draw their conduct and their client's to the Court.
Red Devil said:
I'm not convinced that such a counterclaim can be offset against whatever penalty amount is awarded. I reckon it would only be against the deposit sum as that is it's purpose. If I'm right, the OP will still be on the hook for a substantial payout.
The purpose of the deposit is as security against loss or damage to the property, and can't legally be used to recover missing rent. Whilst the LL appears to be bang to rights on the failure to protect the deposit, I think it would be to the OP's benefit to drag the substantial rent arrears into the argument. Small claims protocol isn't set in stone, and if it can be used to paint a negative picture of the claimant (along with the fact that she did a runner and left him with no way to return the deposit anyway), then the judge can use some discretion, particularly now that the law states the 'penalty' can be anywhere between one and three times the original deposit. So (ignoring any counterclaim) the best the OP could hope for is being told to return the deposit, and then pay the same amount as penalty, worst case 3x penalty.
If the claimant wasn't using a solicitor, I'd be tempted to respond without getting legal representation myself. But the OP has already proven that he's completely out of his depth, he'd have be a complete idiot not to take proper legal advice now.
mjb1 said:
Red Devil said:
I'm not convinced that such a counterclaim can be offset against whatever penalty amount is awarded. I reckon it would only be against the deposit sum as that is it's purpose. If I'm right, the OP will still be on the hook for a substantial payout.
The purpose of the deposit is as security against loss or damage to the property, and can't legally be used to recover missing rent.This thread is about rent which is due and the tenant has failed to pay..
As for the bit I have bolded, source please. Are you seriously suggesting that these organisations don't have a clue what they are talking about?
https://england.shelter.org.uk/housing_advice/tena...
https://www.mydeposits.co.uk/wp-content/uploads/20... page 6
https://asktenants.co.uk/blog-post/faq-uk-tenancy-...
http://www.thetenantsvoice.co.uk/advice_from_us/de...
mjb1 said:
Whilst the LL appears to be bang to rights on the failure to protect the deposit, I think it would be to the OP's benefit to drag the substantial rent arrears into the argument. Small claims protocol isn't set in stone, and if it can be used to paint a negative picture of the claimant (along with the fact that she did a runner and left him with no way to return the deposit anyway), then the judge can use some discretion, particularly now that the law states the 'penalty' can be anywhere between one and three times the original deposit. So (ignoring any counterclaim) the best the OP could hope for is being told to return the deposit, and then pay the same amount as penalty, worst case 3x penalty.
Judges can indeed use discretion within the parameters provided for by the legislation but the case I quoted suggests it won't go well for the OP as far as his breaches of the Housing Act are concerned, especially if the other side cites it.mjb1 said:
If the claimant wasn't using a solicitor, I'd be tempted to respond without getting legal representation myself. But the OP has already proven that he's completely out of his depth, he'd have be a complete idiot not to take proper legal advice now.
Well at least we can agree on that. I think he is now aware of his previous folly though.mjb1 said:
The purpose of the deposit is as security against loss or damage to the property, and can't legally be used to recover missing rent.
...
OP please don't listen to this particular poster. He doesnt understand even the basics. ...
It is scary to read that he thinks you can't legally use a deposit against rent arrears.
Best advice to OP, take proper legal advice for this matter and use a reputable, knowledgeable and ethical agent (do some research on agents in your area) to advise/take care of all the legal requirements for future Tenancies.
For example make sure the the agent you use knows the law changed a couple of years ago and that as well as the previous prescribed info you also need to issue the gas cert, epc and govt How to rent guide for the deposit to be deemed properly protected and have the ability to serve section 21. I have seen a few who haven't realised this and are putting their client at risk. A good agent is well worth the fee you pay especially if you dont know even the basics.
Red Devil said:
I'm not sure what you mean by 'missing'. That could be the recipient has simply failed to allocate it to the rent account correctly or at all.
This thread is about rent which is due and the tenant has failed to pay..
As for the bit I have bolded, source please. Are you seriously suggesting that these organisations don't have a clue what they are talking about?
https://england.shelter.org.uk/housing_advice/tena...
https://www.mydeposits.co.uk/wp-content/uploads/20... page 6
https://asktenants.co.uk/blog-post/faq-uk-tenancy-...
http://www.thetenantsvoice.co.uk/advice_from_us/de...
Judges can indeed use discretion within the parameters provided for by the legislation but the case I quoted suggests it won't go well for the OP as far as his breaches of the Housing Act are concerned, especially if the other side cites it.
Well at least we can agree on that. I think he is now aware of his previous folly though.
My mistake on using the deposit to cover rent, not sure where I'd got that from.This thread is about rent which is due and the tenant has failed to pay..
As for the bit I have bolded, source please. Are you seriously suggesting that these organisations don't have a clue what they are talking about?
https://england.shelter.org.uk/housing_advice/tena...
https://www.mydeposits.co.uk/wp-content/uploads/20... page 6
https://asktenants.co.uk/blog-post/faq-uk-tenancy-...
http://www.thetenantsvoice.co.uk/advice_from_us/de...
Judges can indeed use discretion within the parameters provided for by the legislation but the case I quoted suggests it won't go well for the OP as far as his breaches of the Housing Act are concerned, especially if the other side cites it.
Well at least we can agree on that.
I think he is now aware of his previous folly though.In the case you quoted, was that before or after the Housing Act was amended to give the judge flexibility on the scale of the fine. Agreed it's an absolute offence, but anything to muddy the water isn't going to make it worse for the OP. As he's already had an offer of 2k turned down, so it seems they are determined to pursue for the maximum.
And also see my own case, where the claim was refused becuase the tenancy has ended. Small claims court is a lottery!
OP might now be aware of his previous folly, but he doesn't seem to be handling the fallout any better either.
Slagathore said:
What is your background/basis for this, other than one similar experience?
You're making some big statements and I'm not sure that's the best advice here
Having been called out, and rightly so. You're making some big statements and I'm not sure that's the best advice here
IANAL, I am as you say only one who was in a very similar situation to OP - except I was the tenant. We had left, several weeks of trying to get hold of landlord + our deposit, and I was greeted with a terribly worded email basically saying they were keeping it all due to a dozen or so reasons.
No checks, inventory etc etc etc had been done when we first moved in, and we had photographic evidence that the place was a mess when we moved in. Kitchen was filthy, with a ruined floor, beds were damaged, carpet & furniture damaged etc etc. We documented it all & asked for it to be rectified - no response. We moved in anyway & did it all ourselves.
On moving out we categorically left the place in a far better position where we could. The damage to everything which was there when we arrived was there when we left. Landlord tried to bill us the £700 for it all.
We raised the small claims, asked or 3x deposit etc etc - as per CAB & a couple of recently graduated solicitors in the family who checked it all over for us. Had several nasty phone calls off landlord/family offering various amounts of deposit back - BUT WE WANTED THE FULL 3X! (because: Greedy & wanted to punish him for making it all so stressful for us).
Week before we received letter, with cheques covering full amount inc legal costs. We wanted to reject it, but CAB & solicitor friends advised not to, as he was being fair & reasonable, and if we went to court we risked being punished (ie getting the deposit back, but forced to pay legal fees) for refusing such a reasonable offer.
Ultimately though, I agree. Find a decent Solicitor, spend £few hundred getting proper advice and go with it. Their 'no win no fee' clowns won't be half as good as a genuine Solicitor. If you are willing to drop £2,000 in the first pass then you can justify £200 for legal help.
Use my case study above & see what Solicitor thinks. Please keep us updated.
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