Here is a blog clinic question from Mark who is a landlord.
I wonder if you could tell me which way I should go.
My tenant moved in 6 months ago and basically cost me money from the offset, saying things had broken when her children had broken them, this ran into thousands of pounds, but I repaired everything anyway.
I gave her notice to leave and she did not pay the last months rent, saying take the deposit instead. Now she has gone, the damage left behind will cost a lot more to put right than her deposit.
The agent said just keep the deposit for the rent, but then I have nothing for the damages.
I have always been good to all my tenants and really do not know what to do for the best. I need the deposit to put the house right for another tenant, but if i allow the TDS to deal with the dispute it will be weeks if not months before I get it, and I am still out of pocket because of the rent.
One person suggested I take the deposit (for the cost towards the damages, but make out to the agent I am accepting it as rent owed) and then take her to court for the rent, but surely this would not be legal?
Please help!!!!!
Mark, my feeling is that you need to claim this money by the most certain route, as you do not want to risk losing it. Tenants like this are frequently without assets so there is rarely any point in pursuing them through the courts. So I suspect that the only money available to you will be the deposit money.
Others will know better than I the precise detail of how the TDS procedure works, but can’t you put in a claim for EVERYTHING you are owed? Then if the adjudicator does not accept the damage, he will still allow you the money against the deposit?
If you have to make a choice, then I would suggest the rent, simply because this is less likely to be successfully challenged.
Keep careful details of all the damage done though, so that if you are ever in a position (during the next six years after which the claim will be statute barred) to bring a claim against the tenant you will have sufficient evidence to prove your case.
If the tenant has already agreed that the landlord not return her deposit, then there is no reason to go to adjudication.
Simply get the tenant to sign a cost sheet to this effect and job done the full deposit is yours to allocate how you wish.
ARLA advise damages first, rent second. I think the reason behind this is because if you’re going to court for the outstanding amount, it will be easier to prove outstanding rent.
However, if you have no intention of going to court for the outstanding amount, I would do it the other way round (as suggested above) becasue the tenant is less likely to dispute the non-payment of rent.
“One person suggested I take the deposit (for the cost towards the damages, but make out to the agent I am accepting it as rent owed) and then take her to court for the rent, but surely this would not be legal?”
The agent will write to the tenant about the deposit deductions and they will explain what the deposit is being held for, i.e the rent. They may also send an up to date statement showing tenant’s rent account at zero balance.
If you then later try to take the tenant to court for non-payment of rent, she will simply wave these documents in the judges face and the judge will wonder why you’ve wasted everyones time.
Illegal? Yes, it’s an intentional deception made for personal gain – other wise known as fraud!
Wouldn’t chasing throught the courts for the rent owed at least mean the tenant gets a CCJ recorded? It seems pretty unfair they get away with it so lightly.
I guess if the deposit money is used to repair the damages (or part of them) the tenant will not be able to use the argument of the rent having been paid from the deposit.
We had a very similar case where the tenants left the property owing a month’s rent and would be liable for damages.
They referred their dispute to the TDS and we responded with a claim for legally owed rent and the costs for remedial works. The TDS found in our favour for the full deposit as the rent was irrevocably proven to be owed and even though the TDS did not agree that all the remedial works were required, they did agree with some of it so the remainder of the deposit was awarded for this. So, my advice to Mark is claim the deposit as unpaid rent and also claim for remedial works. The TDS (or either of the other two bodies) cannot reasonably dispute rent legally owed if you can prove it.
How you choose to use the funds I am sure is at your discretion because surely the reason you charge rent is to help you maintain the Property?