Defending A Tenancy Deposit Counterclaim

by Readers Question

3 years ago

Defending A Tenancy Deposit Counterclaim

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Defending A Tenancy Deposit Counterclaim

Hi,

Probably been answered before however ….

Deposit wasn’t protected, but the tenant decided to use the deposit in lieu of the last months rent. It seems I reluctantly agreed. at least that is what he is saying. Defending A Tenancy Deposit Counterclaim

I am in the middle of court proceedings after asking him to leave for sub-letting the property, actively sourcing tenants via his local newspapers in Lithuania. I am suing for damage to the property as a consequence of the sub-letting.

His solicitor has raised the issue of a counterclaim based upon the lack of deposit protection. Can I argue that he agreed to use the deposit as rent and that fines etc have no place.

Thanks

Stephen

Comments

Mark Alexander

3 years ago

Hi Stephen

From what you've said I don't think your defence of the counter-claim will be valid. In fact, I don't believe there to be any basis for a defence against a claim for failing to protect a deposit.

I'm sorry that's not the answer you will have been hoping for.
.

AA

3 years ago

Reply to the comment left by "Mark Alexander" at "31/01/2015 - 15:36":

True but there is a bigger issue here and I have been waiting to ask this. Has anyone that has gone to court taken the defence that an individual cannot fine another individual. These payments are "fines" as the tenant has suffered no loss. My basic understanding of law was only Statutory bodies can fine individuals I.e. Councils.
Where in any other walk of life can you arbitrarily have one individual pay another where no loss has occurred ? I need educating in this area . I cannot get my mind around how this law has come to pass.

Gary Nock

3 years ago

Asif it's not a fine. It's a civil claim. Tenant has to put a money claim in stating deposit was not protected. Then asks for compensation of up to three times the deposit. And return of initial deposit. In this case I'm with Mark. Fail to protect the deposit at your peril. The only way forward is repay the deposit and seek Section 21 possession again and hope that tenant doesn't counterclaim for the initial failure.

Stephen Smith

3 years ago

The tenants left over a year ago. The damage was significant, more than simply wear and tear.

I have copies of advertising where they advertised for tenants thereby making a profit on a month on month basis and leaving me to pick up the bill. After eventually getting them in front of a judge, nearly a year of them ignoring everything, they have a solicitor who has suggested that I pay THEM compensation as an offset against the amount claimed.

As an aside, if I was a local authority landlord the law allows the LA to reclaim the secret profits made by these scoundrels. The tenants were sourced via agents and I have a copy of a more recent advert suggesting they are carrying on their ways. They rent a 4 bed house and yet there are only 2 of them.

I have read in publications that as many as a half of all properties rented in London are sub-let, suggesting this is a massive problem. When the tenants had left I had a phone call from another agent asking if I would endorse the sub-letting tenants on their next property. They acted as if they were appalled that people would sublet and yet I find that the same agents had used other people to perform the referencing rather than me and these tenants moved on to another unsuspecting landlord.

Needless to say we do not use agents any more since the agenda seems to be to close the deal regardless, if the references come back poor, they simply ask for another person or another address or "living with friends or family".

On the matter of the "fine" we will simply ask the court to be "helpful" as it seems that I am the only person who has suffered a loss.

It used to be the case that "He who comes to equity should come with clean hands" meaning that if you are a rogue you should not expect the dispensation of the courts. Not now it seems!!

AA

3 years ago

Reply to the comment left by "Gary Nock" at "01/02/2015 - 15:30":

A rose by any other name. The civil claim mechanism as the dictated path would be the obvious and only choice. The key giveaway is your referral to the term "compensation".
Compensation is awarded in every other facet of life for a loss and or inconvenience. Where is the tenants loss or how is he or she inconvenienced by non compliance ? My preference would be, if a system has to exist, monies be paid into the public purse as opposed into the pockets of opportunistic tenants waiting for you to slip up. Thankfully in Scotland the government had the foresight to allow a three month window after a tenant has left the premises to submit a claim as opposed to the outrageous 6 years in England and Wales. A quantum of solace in an otherwise ill thought out knee jerk reaction listening to vocal lobby groups like Shelter.

But agree - ignore at your peril. Easy windfall for the tenant if you don't comply.

AA

3 years ago

Reply to the comment left by "Stephen Smith" at "01/02/2015 - 18:17":

Sorry to hear about the detail of your situation. My cynical outlook on agents is that in reality they could not care less as long as they get their percentage. And why should they, it's not their property. As far as the courts are concerned I would echo your point in, after reeling from the West Brom BS outcome (and I use the abbreviations with good cause) endorsed my long held belief of the pointlessness of seeking justice in the judicial system. Good Luck.

Romain Garcin

3 years ago

It is not compensation to the tenant, it is a penalty on the landlord, which happens to be payable to the tenant.

We can debate the pros and cons for a long time, however IMHO it is a pretty good way to boost enforcement because tenants have an incentive to start proceedings and that keeps landlords on their toes.

The main issue in my view is that the whole thing has been poorly setup and is becoming more complex with every new case law...

Peter Hunter

3 years ago

If your tenant collected a deposit from the sub - tenants did he as their landlord
protect their deposits ?.
It may be possible that the sub tenants have left some details in drawers etc, you
could advise your tenant and his solicitor that you can contact the sub - tenants to help the them persue your tenant / their landlord for the return of their deposits and
3 times the value of those deposits.
Suggest that he drops his action and you will not advise his tenants of their rights .
Good luck

Pete Hunter.

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