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  • Legal FAQs

    Possible dispute with Tenant

    I find myself in need of the wisdom of the users in the forum once. Your advice and experience has been invaluable since I joined.

    I will try and keep this as brief and to the point as much as possible.

    I bought a property approximately four years ago, originally to be vacant possession but, due to an completely incompetent letting agent of the previous owner I decided to complete the purchase with the tenant in situ.

    The first of my concerns is that despite many phone calls to the agent informing them that I would not be using their services and asking them to transfer the tenants deposit over to my own DPS account, for my requests to be completely ignored.

    I also have an email asking and a letter asking for the same, no proof of postage unfortunately, again all ignored. Most of the requests were done verbally on the phone. With hindsight I now realise this was a mistake.

    My thoughts at the time was that it's not that urgent and that if the tenancy was to come to an end I would just inform the agent and tell the tenant that they had his deposit and I would just let them sort it out between themselves.

    Since then I have had a letter from the deposit protection scheme (My Deposits) that the agent was using informing that their membership had been cancelled and they ceased protecting any deposits registered by this agent. Furthermore, apparently this scheme was the type that only registered the deposit and let the agent keep the funds in their own accounts. It only goes to show my ignorance that I thought all protection schemes required you to send them the funds for safekeeping.

    Since then the agent has closed up shop and disappeared.

    Secondly and more of a concern at the moment is that I signed a new AST with the tenant, as a condition of the mortgage provider, starting on the day of completion. Due again to my ignorance/ negligence I failed to give them any of the documentation that I now know I need to give all new tenants e.g. EPC, Gas/ Elecrical Safety Certs, How to Rent Booklet and so forth.

    I can foresee future problems with this tenant where they could stop paying the rent and I would need to evict them. They are always late with the rent and I always have to call them to get them to pay.

    In short, the dispute is, they asked me to change the bathroom suite and the carpets throughout. They claim that they are uncleanable because they are too old. I have told that the suite might be old but is fully functioning and just needs a good scrub. The carpets are also in need of a good cleaning and there is not frayed or worn anywhere. As this not a hotel or a SA the cleaning is down to them. It is just they do not keep the flat clean,I know that if I were to replace them they would be in same conditions in a matter of days.

    Despite this, I offered to agree to their request if they agree to pay me nearer the market value rent for the area, currently they are paying approximately £250 below similar properties. They have refused this.

    If the situation was to to escalate and they stooped paying the rent altogether, is the lack of providing them them with the correct documents going to cause me problems? How badly did I shoot myself in the foot?

    Is there any way I could give those documents to them now? Will it make a difference?

    Where do I stand with the whole deposit issue?

    Should I be thinking of talking to a solicitor now or wait till there is a real problem?

    Sorry about the length of the post. I look forward to your words of wisdom.

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    You have problems which you know about. When you did new lease you should have issued all the correct documents then.

    All you can do now is damage limitation. More than likely you can put deposit into scheme. Now a judge may look on that sympathetically . I would not be telling the tenant much.

    As for carpets tenant are ment to return the property back in the condition they got it.

    I think the best you can do is prepare for the worst serve notice . Or give notice your putting rent up . Hopefully they will leave don't dispute anything return deposit get them to sign for it and state this is full and final settlement for all matters relating to property address . By returning deposit.

    It might work but I am not sure.

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    Former LA has ceased trading and initial security deposit has disappeared with Agent I assume?

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    If your tenancy agreement does not cover rent increases, you can use a section 13 notice to put it up. https://england.shelter.org.uk/housing_ad..._increases has information about what you need to do.

    The failure to serve the Gas Safety Cert etc affect your ability to serve a section 21 notice. I don't think it affects your ability to serve a section 8 notice. You could use ground 10 (some rent due at time you start proceedings and possibly when you serve the notice), ground 11 (rent persistently paid late), ground 12 (terms of the tenancy broken (i.e. not cleaning properly)), ground 13 (condition of dwelling has deteriorated (i.e. not cleaning properly)). These grounds are up to the judges discretion.

    If they stop paying rent, once they are 2 months in arrears you can use ground 8 which (as long as they are still 2 months in arrears at the date of the hearing) is a mandatory grounds for eviction.

    There is also the possibility of using grounds 6 (the house would be unlivable whilst you replace the bathroom).

    If the tenant has asked for the repairs in writing, you need to make sure you respond to them in writing setting out your reasons for not carrying out the requested repairs, or giving a timescale for the repairs to be completed. Could you arrange for a cleaner to bring everything back up to standard? Obviously this will be at your expense because of the deposit issue but it will give any judge in a possession hearing a better impression of you. If the tenant refuses to allow you access to do this, then this will give the judge a bad impression of them.

    You can not serve the gas safety certificate retrospectively although you can probably do so for the other documents. Serve everything now, and if you can get them to sign a new tenancy you are covered. You need to serve the GSC every yaer.

    I would suggest you check your purchase paperwork from your solicitor. When I bought a property from a landlord using an insurance deposit scheme, the deposit was deducted from the money I paid to buy the property. It was then up to me to protect the deposit using my money. This obviously doesn't help with you not protecting the deposit but you may find the letting agent had nothing to do with it and didn't bother with telling you this. Your only way to avoid fines on the deposit is to get the tenant to accept it back. You still have the option to take the tenant to the small claims court to recover your costs for fixing their damage at the end of the tenancy, if you think they will be able to pay. Protecting the deposit late will not prevent you being fined but may decrease the level of the fine.

    If you put up the rent and they leave, I would give them their deposit back in full, to prevent any arguments which might bring the failure to protect to the notice of the deposit scheme/courts/shelter.

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    Well you cannot use an s13 notice to increase the rent inside the fixed term of a tenancy and you are stuck with that now. They cannot come after you financially for a lack of EPC etc but you will not be able to serve an s21 notice. You certainly need to regularise this ASAP.

    you need to get the deposit protected too. If it’s been stolen by the agent then you will need to make it up yourself and then get it protected. If you do that promptly then you are probably ok.

    I don’t see any obvious reason why you could not use an s8 notice if they stopped paying the rent though.

    That said, carpet is not that expensive and it seems to me that a small investment in some would reduce your risks and headache a lot.

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    David Smith
    Landlord & Tenant Solicitor
    Anthony Gold Solicitors

    Find me on LinkedIn: uk.linkedin.com/in/dsnsmith

    All opinions are my own and do not reflect those of my firm. No comment made should be taken as legal advice and you should consult a solicitor or other legal professional for advice on your specific situation.

    Hi all,

    Thank you for all your replies.

    Just to be clear...are you all saying that I should make up the deposit from my own money and put into the DPS account even though I have not received any kind of deposit at all. It was the previous owner and their agent who took a deposit off the tenant.

    I reimbursed the previous owner for the deposit, or rather it was assumed to be included in the purchase price without referring to it specifically, the plan was that I would get the agent to send it to my DPS account who, as you know, now has done a bunk with the money.

    The tenant did not pay me any kind of deposit, nor is there any mention of a deposit in any of the paperwork between the tenant and myself. I just assumed the law would look at as a non deposit held tenancy. I thought that maybe I would then pay the tenant the amount of the deposit to the tenant at the end of the tenancy more as gesture of good will rather then returning a held deposit. Depending, of course, on how the tenancy ended.

    Thanks again.


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    As David Smith flagged above - you need to make up the deposit if it was stolen by previous Owner/LA. It sounds like the scheme where for LL retained the cash deposit but insured it under the relevant DPS - so by failing to hand it over to you on sale it became a bonus!

    Fitting of new carpets may be difficult logistically if tenants' furniture is in situ - is it very cluttered or sparsely enough furnished so that all items from one room can be moved by tenant in to another room while carpet fitters do their thing?

    Tenancy is now over 4 yrs and carpets will be over the 5 yrs of age which means they would be "written off" in any deposit dispute.

    As you are already down on deposit issue - my inclination would be to say to tenant that carpets will only be renewed via some rental increase and provided that rent payments are paid in full and on time for say 6 months. Obviously that does mean that tenant is subsidising carpet renewal without gaining ownership thereof.

    As for bathroom suite - if it is really filthy I might offer to get say Molly Maids in for a one off thorough clean - then remind tenant that cleaning during tenancy is responsibility of tenant not landlord - as you say it's not a hotel arrangement.

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    cleaning - no way is that your responsibility.  its sending out completely wrong message to tenant.

    deposit - if agent has stolen then raise this with DPS, who I thought would reinstate it.  isnt that what deposit protection is about?

    rent - put it up a very small amount and use that as a pretext for a new ast and make sure you serve all the docs. this time!

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    Unfortunately it wasn't DPS, it was My Deposits.

    I might give them a call and argue that fact actually. I mean whats the point of having the deposit insured if they turn around and suddenly don't insure and the agent does a runner before you have a chance to get your money off them.

    On another thought. I noticed that DPS are doing an insured scheme now. I wonder how hard it to switch over to that. I will have to work out if the interest I would earn with the deposits sitting in my account would justify the £26 fee they charge.

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    TDS is cheaper if you are an rla member.  we pay I think about £18 to TDS.

    whatever company it is, you should still be covered for stolen deposit.  thats what it is for.  im not keen on My Deposits and have moved all our deposits from them.  their adjudicator suzy ??? said some stupid things in their blogs like 'good landlords dont have disputes'!!!!!

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