Here is a question to the blog clinic from Jon who is a tenant
We were tenants under a private AST through an agent. Tenancy duration Feb2010-May2013.
AST contract stipulates that proposed deductions should be notified to tenant within 10 working days of tenancy cessation.
Impasse:
We are now at 19 working days, and the landlord has issued nothing other than to refund 625 of the 925 paid.
This would be contestable as the property was in excellent condition at cessation, however this is surely irrelevant as landlord is in breach of the AST contract.
Questions:
1. I am raising with TDS. What is the appropriate course of action in respect of breach of contract, remedy, compensation etc please?
2. Is this a good case for a no-win/fee solicitor, to pursue on a number of fronts?
Your situation is that your landlord has withheld £300 and has failed to tell you why. Presumably your deposit is protected with TDS.
The correct course of action is to do what you have done – contact TDS and seek to claim the balance of the money via the free adjudication service.
You should, in your application, ask the Adjudicator to refuse to entertain any claim that the landlord may make to justify the withholding of the £300 as he is in breach of the terms of his own tenancy agreement.
You will certainly win the adjudication if the landlord continues to withhold information as to why the money has been withheld. If the information is provided late, you will probably still win because he is in breach of the tenancy agreement.
I don’t think you will be entitled to anything else. So I don’t think there is much point in instructing solicitors. Your loss is the £300 and that can be recovered via the adjudication.
Breach of contract – no loss, no award
As a general rule claimants do not normally get an award just because the other party is in breach of contract. They get an award because the other party is in breach of contract AND they have suffered loss as a result of that breach of contract.
If there is no loss, normally there will be no award. So far as I can see, your only loss is the £300.
I think the landlord (or their agent) is certainly leaving themselves open to potentially losing any TDS claim they may have on the £300.
Without knowing the precise details of this case, its difficult to make assumptions but presumably, despite the landlord not notifying within the 10 days, they must believe a deduction is warranted.
This being the case and if viable evidence can be submitted to support the claim then surely the tenant is also in breach of the tenancy agreement(?) i.e. their obligation to return the property as they found it subject to FW&T.
So while two wrongs don’t make a right, if the adjudicator throws out the landlord’s claim because of their timescale breach, would it be the case that the landlord could sue via the Court.
If so, and if contested but lost by the tenant, then surely the tenant is going to have a bigger bill than the original £300 by the time legal fees, court costs are added (plus the risk of a CCJ).
This is a genuine question not a rhetorical one since we’ve not encountered this issue before. Our approach is to send vacating notes to tenants prior to the end of tenancy detailing what will happen and then if the independent check out report (which the tenant signs)notes dilapidation’s beyond FW&T, the tenant is already on written notice that deductions may be sought.
This is of course all within the 10 day timeframe and, therefore, allows the 28 day clock to start ticking.