Tracey is a tenant who is having problems getting her tenancy deposit back. She has consulted the blog clinic. Here is her story:
I am a tenant going through this exact scenario at the moment. My landlord first claimed that I hadn’t paid a deposit then when I proved I had paid a deposit of £1,100 he went on to list things that were wrong at the house amounting to round about £1100. Most of these were fabricated.I have put in a claim against him as he didn’t protect my deposit, for £3300.
My ex-landlord then suddenly filled in the court papers with a claim amounting to £3900 worth of damages at the house. Unfortunately, as I was on very good terms with him when I lived in his property, I didn’t take any photos or anything before I left. This has cost me £140 so far.
Today I received documents from the court giving a court date in October and requesting another £325 to be paid by 12 July. The papers also state that documents such as photographs, invoices & estimates should be provided.
I am concerned that that the court is just going to fight out what actual damages were justified and make him pay me the balance of the original deposit of £1100, which, with the court fees, will probably leave me out of pocket. I’m now wondering if I should go ahead with this case?
Now you have started it you will need to carry on as if you pull out now, the counterclaim entered against you will continue anyway. Judges are generally very sympathetic to tenants in your situation and your landlord already has a black mark agaisnt him for failing to comply with the tenancy deposit regulations.
However I am afraid you are not going to get the award of three times the tenancy deposit sum as is explained in >> this post here.
As mentioned, the Tiensia case made a complete mockery of the TDS legislation. Therefore there is no chance of getting the £3300 compensation awarded to you.
However, regardless of whether the deposit is protected or not, it always remains the tenant’s money, not the landlord’s. Therefore the burden of proof will be on the landlord if he believes he is entitled to make any deductions. So, unless he has an independent and cast-iron Inventory, Schedule of Condition and Check-Out (unlikely) and that he can demonstrate the proper calculations have been carried out allowing for depreciation and avoidance of ‘betterment’ (even more unlikley), then he hasn’t got a leg to stand on in my opinion. Just waiving a few quotes and ‘invoices’ around doesn’t prove anything.
Difficult to give more detailed advice in via this medium and you should seek proper legal advice, but if it was me, hell yes, I’d gladly see him in court!
I can only suggest that Tracey makes a claimant’s offer to settle (eg/ie that the landlord should pay her just the deposit and the £140 court fee she’s expended thus far less a fair sum for any damages which she admits – she says only most of the landlord’s counterclaim is fabricated).
Such an offer should, of course, be made in writing and the offer letter should be headed ‘without prejudice save as to costs’.
Even if the litigation ends up on the small claims track the court might still award her some litigant-in-person costs against the landlord if he unreasonably refuses her settlement offer. By CPR 27.14 (2)(g) the court may award further costs against a party who has behaved unreasonably, albeit CPR 27.14 (3) goes on to say that the rejection of a settlement offer will not of itself constitute unreasonable behaviour under paragraph (2)(g) but the court may take it into consideration when it is applying the unreasonableness test.
NB: The litigation might not be allocated to the small claims track anyway given the landlord’s £3900 counterclaim. Under CPR 26.8(1)(e) the court must have regard to the value of any counterclaim in determining which track the case should be allocated to. What with her claim for £3300 and the landlord’s claim for £3900 this should exceed the £5000 small claims limit.
If the case is now allocated to the fast track it might be an idea if Tracey could find a solicitor who might be willing to act for her on a no-win, no-fee basis. Avoiding responsibility for her lawyer’s legal costs might provide the landlord with a powerful impetus towards an early settlement.
The claimant’s settlement offer would be even more important if Tracey had a lawyer acting for her: if the case is on the fast track and Tracey were to be awarded at trial something better than the settlement offer she had made then the landlord might be made liable for indemnity costs and an uplifted rate of interest on costs and damages via the provisions of CPR 36.14 (3).
Apologies to Tracey if this all sounds a bit technical and complicated. Part 36 of the CPR is pretty technical but the rules are, of course, available to read on-line at http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/menus/rules.htm.
Thank you both for your very helpful comments. It was of course to avoid tenants having to go through this sort of thing, that the tenancy deposit scheme was introduced in the first place!