Can I keep deposit against £8000 Legal Costs owed?

by Readers Question

15:22 PM, 7th September 2016
About 2 years ago

Can I keep deposit against £8000 Legal Costs owed?

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Can I keep deposit against £8000 Legal Costs owed?

I shall be most grateful, if you could kindly shed a light on my situation. I have a case, where I just evicted a tenant successfully. The tenant has paid all rent and there is nothing outstanding in relation to arrears and the property has been left in a reasonably clean condition.money

Now, the situation I would like to highlight, where we had to go through a full day court hearing, the tenant was represented by a “Legal Aid” Solicitors firm and accordingly he had the benefit of a barrister. Similarly we instructed our barrister and all costs amounted to around £8000. As you may or may not be aware as he was legally aided he had immunity against any costs being awarded against him however fortunately the Solicitors in question failed to apply Legal Aid on behalf of his wife who was a joint tenant on tenancy agreement, as she did not have any immunity against costs, the Judge awarded the whole costs against her.

Now the tenants in question have been formally evicted by County Court Bailiffs however the tenants have now requested that we return their deposit of £1700 in full as they have been up-to-date with their rent and the property has been left in good condition.

I would like to draw your attention to following clauses of tenancy with exact wording:

3.1 The tenant shall pay the landlord on the signing of this agreement a deposit of £1700 which shall be retained by the landlord as security for the performance of the tenants obligations and shall normally be payable to the tenant within 28 working days after the end of tenancy and then without interest and after deduction of any sums required to compensate the landlord whether wholly or in part for any breach of obligation of the tenants part.

3.2 The deposit will be paid back as long as all the rent and bills for the property are paid. If they are not the landlord may take from the deposit any rent legally owed or any other money legally owed. It can also be used for reasonable compensation if you have broken any of your agreements, or the reasonable cost of making good any damage which is not caused by fair wear and tear. The landlord is able to keep the deposit until you have produced satisfactory proof that you have paid the utility bills (electricity, gas, phone & water) for the property. If you fail to do so the Landlord may pay any charges outstanding from the deposit. If we cannot agree amounts for any breach, the matter will be decided by the County Court.

Now my question is- please see clause 3.2 (2nd line )” or any money legally owed” falls under the context where I can use deposit amount held by us against money owed by tenant as aforementioned?

The money is protected by Deposit Scheme and both parties are entitled to free adjudication service.

Any input will be much appreciated.

Simon



Comments

Pam Thompson

18:26 PM, 7th September 2016
About 2 years ago

The TDS would be the ones to make a decision on whether you can retain some or all of deposit.

Michael Barnes

12:40 PM, 8th September 2016
About 2 years ago

If the judgement says you can keep the deposit, then you can.

If it does not, then you need to write to the court asking for a variation of judgement (or something like that: your lawyer can advise) to award the deposit to you.

It is my experience that deposit schemes require the judgement to award the deposit to you.

Simon Hall

21:18 PM, 8th September 2016
About 2 years ago

Reply to the comment left by "Pam Thompson" at "07/09/2016 - 18:26":

Thanks Pam. I also believe this will be a best way forward, I also have had a chat with my barrister and he agrees.

Simon Hall

21:23 PM, 8th September 2016
About 2 years ago

Reply to the comment left by "Michael Barnes" at "08/09/2016 - 12:40":

Michael

Thanks for your input but I disagree with you notion. Firstly the court is not at liberty to vary the order once it has been made. Secondly if they did at the hearing, he would have stopped last month's rent which would have put me in much worst position. I do not think Courts can retrospectively vary order in my favour. The courts have allowed all costs against one of the tenant who is jointly responsible and the terms of tenancy stipulates that, if anything legally owed then it can be taken from deposit but I agree with Pam's suggestion that, it would be up to TDS to decide.

Any further input by anyone else would be appreciated.

Michael Barnes

0:02 AM, 9th September 2016
About 2 years ago

Reply to the comment left by "Simon Hall" at "08/09/2016 - 21:23":

That is what happened in my first possession claim.

I have ensured since that written judgements include a statement that the deposit is to be paid to the landlord as part of the money owed by the ex tenant,

Note that it is not varying the order in your favour; it is stating where some of the money awarded to you is to come from.


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