Small Claims permitted after DPS award?

by Readers Question

12:25 PM, 24th May 2019
About 4 weeks ago

Small Claims permitted after DPS award?

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Small Claims permitted after DPS award?

I’d particularly welcome comments from those within the letting business’ or especially those 118 members with legal qualification please.

Last year my tenant abandoned the property half way into a fixed term tenancy, leaving rent arrears and many items damaged and lost. Furthermore she did not return the keys so an Abandonment Notice was issued by LA.

There was a deposit held of £1,000 with DPS via our agent, also her father was a Guarantor (under a Deed of Guarantee). Tenant refused to agree to the figure we claimed, nor to progress the dispute to ADR. Despite all the items to be claimed were covered in the terms and conditions of the AST and supported by both Pre and Post Inventory reports conducted by independent Inventory Clerks via the LA. Together with 2 witness statements.

Eventually after our solicitor sent LBA and a final demand letter, six month after departure agreement was give by the tenant for arbitration at DPS. The LA said that it wasn’t a good idea to enter the entire sum of £2-3,000 to be claimed, as the deposit only covered £1000. Which we agreed to, having no previous experience. The adjudicator awarded £880 of the deposit after some small deductions for wear and tear, age ect, that was understandable and we accepted.

So my questions:

Given that there has already been an award via DPS arbitration, does this now preclude any further claim via MCOL or Small Claims track in regards to those items NOT entered into arbitration?  A separate claim for separate items not previously claimed.

Whom would be the best party to pursue to recover the sum which is covered by terms in both tenancy contracts and the guarantor agreement?  The father as guarantor and homeowner in full employment either high credit ratings? Or his daughter the tenant, who is a recipient of disability benefits?

Thank you most kindly in anticipation of your response.

Frustrated.



Comments

Ian Narbeth

12:47 PM, 24th May 2019
About 4 weeks ago

Dear Frustrated
I rather fear you will be throwing good money after bad. What do your solicitors say? The problem for anyone coming to this fresh is that it will take a lot of time (and time = money) to get up to speed. With hindsight it might have been better to go after the guarantor quickly but unless you go along with the DPS adjudication they will release the deposit. The solicitor would be at fault if he allowed that to happen.

John Frith

13:30 PM, 24th May 2019
About 4 weeks ago

Reply to the comment left by Ian Narbeth at 24/05/2019 - 12:47
Ian, are you saying that if a landlord disputes the tenants claim for monies to be returned, and does not agree to ADR, the DPS will ignore the landlord and return all the disputed monies to the tenant? I have always not agreed to ADR as I felt I would have a better chance with the small claims court. But if the deposit has been released by the DPS, that would make it much harder.

Frustrated

13:36 PM, 24th May 2019
About 4 weeks ago

Thank you very much to you both. ADR awarded, payment from the deposit was accepted. A larger figure still outstanding requires to be recovered. Small Claims court against Tenant or Guarantor is this permitted after ADR settlement only what was claimed, nothing duplicated, advice please?

Frustrated

13:39 PM, 24th May 2019
About 4 weeks ago

Reply to the comment left by Ian Narbeth at 24/05/2019 - 12:47No solicitor involved only at primary stage to push for adjuducation. No release of deposit as £880 paid out to myself £120 returned to tenant, fresh claim against guarantor for £1500+/-

SimonR

15:28 PM, 24th May 2019
About 4 weeks ago

You can claim the balance owed via the small claims court for any lost rent and damages. I see that your tenant vacated half way through the fixed term, you cannot claim for the balance of the term as you would need to show you mitigated your losses by trying to find a new tenant so your lost rent would be up to the point your new tenant moved in. As you had a guarantor you can also name them on the claim

Jan Martin

15:42 PM, 24th May 2019
About 4 weeks ago

I see no reason why you cannot claim in the small claims court for monies still owed. I had a claim for over Two thousand pounds but went to courts although protected by My Deposits .
I would go after both the ex tenant and the guarantor on the court paperwork . If you dont get your money they will both have judgements. As long as you have all your proofs for the magistrate. You will need in the first instance to write to them and discuss the debt and send a bill etc .The court will expect you to give them chance to pay .

Frustrated

16:35 PM, 24th May 2019
About 4 weeks ago

Reply to the comment left by SimonR at 24/05/2019 - 15:28
Thank you Simon, repaired the damage to the property, relisted iy and a new tenant was found within 6-7 weeks. My claim mitigated.

Frustrated

16:46 PM, 24th May 2019
About 4 weeks ago

Reply to the comment left by Jan Martin at 24/05/2019 - 15:42Hello Jan. My LA tried to persuade the tenant to proceed to ADR from January to May2018. Nothing. I employed a solicitor in June sent two letters asking for a 'negotiated settlement" Still nothing. Claim finally progressed to ADR August 2018.
A propotion of my claim awarded. Another series of letters to guarantor seeking a compromise. Still nothing.
MCOL claim registered in November. I accepted Mediation in January 2019, guarantor offered £50 as F and F payment, I reduced my claim by £350. Nothing resolved.

Richard Adams

20:57 PM, 24th May 2019
About 4 weeks ago

I'm no legal expert but have always pursued money owed without which I would remain out of pocket through the Small Claims process. Easy and cheap to do and the worst outcome is you lose - can't see why? - and end up where you are now. Info tenant to pay up or I'll go after your dad the guarantor. When she does not pay write to the dad saying sorry I have to ask you as guarantor to pay your daughter's debt. If he refuses tell him you are going after him through Small Claims. Simple. Good luck.

Michael Barnes

22:13 PM, 24th May 2019
About 4 weeks ago

Reply to the comment left by SimonR at 24/05/2019 - 15:28
you cannot claim for the balance of the term as you would need to show you mitigated your losses

It is my understanding that there is no requirement to mitigate loss of rent if tenant leaves before the end of the fixed term; I believe that is because the issue comes under property law, not contract law.

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