Tenant won’t claim his deposit and wants to go to court!

by Readers Question

9:02 AM, 22nd May 2018
About 3 years ago

Tenant won’t claim his deposit and wants to go to court!

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Tenant won’t claim his deposit and wants to go to court!

My brother and I are joint landlords of a few properties. One of our tenants recently gave 30 days written notice to vacate his flat. His deposit had been protected through the DPS and was provided Information how the DPS scheme works etc within the 30 day period when the tenancy commenced around 2 years ago.

We met him at his flat on his day of departure and the flat was filthy. We reminded him that as per the tenancy agreement/inventory the flat should be in the same standard of cleanliness as when he moved in. He very reluctantly agreed to make a better job of cleaning the flat. He said he would do it later that day and we agreed to meet him the following day for a new hand over. He never showed up the following day for the new hand over and hadn’t made any further attempts at cleaning. The keys for the flat were never returned to us. We contacted him and told him as he didn’t clean the flat or handed in the keys we would be getting a cleaner in and changing the locks at his expense.

We logged a dispute for part of his deposit with the DPS. He said as we were looking at withholding part of his bond he would see us in court for the full amount. True to his word he logged a claim through the small claims court for the full amount of his deposit which is £400.

My brother and I have since decided to fully renovate the flat and could not be bothered with the time or inconvenience of a dispute with the DPS or small claims court.

We logged on to the DPS again and changed the status of claim for the deposit to be returned to the tenant in full. He has been notified by the DPS that his deposit is available to be reclaimed in full and all he need do his provide the bank account details he wants it sending to.

The tenant is ignoring the DPS and refusing to contact them to reclaim his deposit. He is pushing ahead with the small claims court. No court date has been set yet and the courts are advising both parties should try to mediate to try resolving the dispute without having to go to court.

He is flatly refusing this and it seems he wants to have his day in court. We do not want to end up in court or have any CCJ’s against us.

Can anyone advice how we can resolve this please?

Ronnie

Comments

AA

14:41 PM, 22nd May 2018
About 3 years ago

Reply to the comment left by David Dorset at 22/05/2018 - 13:44
No....otherwise people would concede a position in fear of their credit worthiness being affected. The courts clarify the position.
You then have to pay if in the wrong as far as the adjudicator is concerned, If paid out with period then it is recorded and if not paid then you have an outstanding CCJ.

David Dorset

14:46 PM, 22nd May 2018
About 3 years ago

Reply to the comment left by Annie Landlord at 22/05/2018 - 14:24
The tenant gave written notice and left the flat. Because he did not hand the keys back does not mean an abandonment procedure has to be followed.

H B

6:00 AM, 26th May 2018
About 3 years ago

The fact that you have subsequently fully renovated the flat might not stand in your favour. It could sound like you unnecessarily wanted to deduct from his deposit even though you were about to commence a renovation.

What was the value of the deduction? Was it reasonable and proportionate to the mess and cost of cleaning?

John Bullock

9:48 AM, 26th May 2018
About 3 years ago

This is not an issue of a deposit and dilapidation whuch appears to be your focus. The fact he does NOT want to reclaim the deposit is significant. No keys passed back - no claim of deposit - no handover he remained a tenant. The issue is one of abandonment as whether you can confirm he had in fact left the property and whether you unlawfully changed the locks. I think would address this point initially as everything is beholden to this outcome. Good luck

Kate Mellor

12:08 PM, 27th May 2018
About 3 years ago

I've recently completed a Regaining Possession course with the RLA to refresh my knowledge and for those concerned about the tenancy being legally at an end, I can assure you it is. Once a tenant gives correct notice to end their tenancy then on the expiration of that notice the tenancy ends, whether or not the tenant moves out. Ok, if they don't move out you still need to go to court, but in the eyes of the court they are technically trespassing. Even if this were not the case the tenancy would be at an end by the actions of the tenant being incompatible with his intending to continue the tenancy. He moved his possessions out and attended a final inspection. There was a verbal agreement for him to retain the keys to clean the property which the tenant reneged on. To complete the process of ending a tenancy by the implied intentions of both parties the landlord would have to show that he has accepted the tenants surrender and the act of changing the locks and renovating the property clearly shows this surrender has been accepted. (This is however irrelevant unless the tenant's notice was not in accordance with the tenancy agreements stipulation). So, the tenancy is certainly ended. Additionally the tenants court claim for the deposit to be refunded by the landlord also shows that the tenant believes the tenancy to be at an end, or why would they be asking for the sum of the deposit to be returned?

As long as you dispute the claim in the correct way you have nothing to worry about with this claim. You will receive a form which you need to return to the court, either accepting that you owe the debt, disputing all or part of the amount claimed, or making a counter claim. Tick the box that you dispute that you owe the amount and provide a detailed account of why you do not owe it. Don't bother going into detail about 'he said, she said'. Just state that the amount being claimed is a tenancy deposit held in the DPS Custodial scheme, which is in the process of being returned to the claimant. The claimant only needs to contact the DPS and provide his bank account details for the funds to be paid into. The defendant (you), does not hold these funds and so is not the correct person to claim against. You have requested the funds be returned to the tenant and they have refused to reclaim them, choosing instead to raise a claim in the county court against you. The court will then send a copy of this to the claimant and I think will ask them for a response to this. I doubt it will go any further, but should it go further you may need to attend court. If so, make sure it is in your local court (you have the right to request a change to your local court if the claim isn't being held there), and ensure you bring all the relevant documents to prove your case. I DOUBT the court will let it progress that far.

David Dorset

18:51 PM, 28th May 2018
About 3 years ago

Good advice Kate!
Whilst this thread has been in progress i have had a call from my letting agent. I have a one bed property which has been rented to a Saudi lad. It is common in my location that we get overseas students to study at the local language schools. The tenancy is due to come to an end in 2 weeks. Both myself and the agent have tried to email and call the tenant. The phone has international calling tone and no reply to calls or emails. The letting agent gave 24 hours notice to enter the flat for a pre move out inspection. They found the flat in a very messy state, dirty, rubbish everywhere and rotting food in the fridge. The were some possessions left but nothing of any value and the clothes that were left were all winter which the Saudi student never bother taking back home with them. The agent tells me that it is apparent that the tenant has not been living in the flat for over a month. The found the tenants set of keys in the flat.
My question is given we have made every attempt to contact the tenant, the keys were left in the flat and we are sure he has returned to Saudia Arabia can we consider the tenancy ended in two weeks time when the tenancy agreement expires?
I would intend to have a check out inventory carried out, then pack up any belongings and store them for a few months just in case he claims them and then put in for a deduction against the deposit for cleaning etc and return the remaining deposit to the tenant, I want to avoid going through an abandonment procedure unless i absolutely have to.

Kate Mellor

19:37 PM, 28th May 2018
About 3 years ago

Reply to the comment left by David Dorset at 28/05/2018 - 18:51
David, when you say the tenancy is due to come to an end, do you mean that the tenant gave you notice to end the tenancy? Or do you simply mean that the initial fixed term is ending? If it is the former then yes you would be safe to act on that notice once it has expired and the tenant has clearly left (keep diary entries of your actions along with photographic evidence to support your reasonable belief that the tenant had moved out). If however it is the latter that is a different case.

David Dorset

8:21 AM, 29th May 2018
About 3 years ago

Reply to the comment left by Kate Mellor at 28/05/2018 - 19:37
Hello Kate, unfortunately the tenant has not given formal notice. We are sure he has left as he has no access to the flat as he left the only set of keys he had inside the flat so i have no doubt that he has gone but of course if he decided to be awkward then he can rightly say he didnt formally serve notice to leave.

Kate Mellor

12:14 PM, 29th May 2018
About 3 years ago

Reply to the comment left by David Dorset at 29/05/2018 - 08:21Hi David, sorry, this will be a long reply. You are in a potentially difficult position and will get varying advice on this depending who you ask. If you take back the property you risk a challenge at some point and having to defend yourself from an illegal eviction charge. So, some people will advise you to always get a court order.

The question is, do you have a genuine Implied Surrender? Personally, I've always taken a view on it. Do I have genuine grounds to believe the tenant intends to surrender their tenancy permanently and could I defend that belief in court if I needed to? Do I feel there is any genuine risk that I'm either wrong, or my tenant may change their minds and decide to seek help to challenge me? Have I done everything possible to contact the tenant, his next of kin, friends and neighbours? In your case it is too early for you to act. You can’t do a thing other than make enquiries and gather evidence at this point. Your tenant may be spending half term with his family in Saudi and may still pay the rent when it is next due. Those keys may be his spare set that he had cut, (okay probably not, but he’s paid for use of the flat for another two weeks).

Is the flat a furnished let? If not is there a bed still in the property? What is the oldest postmark on the post? Have you asked his neighbours when they last saw him? If he told them he was leaving? Have you tried to contact his next of kin? Does your AST become a contractual periodic tenancy after the fixed term, or a statutory periodic one? A tenant does not need to give notice to end a statutory periodic tenancy at the end of the fixed term, they simply must leave the property by the correct date to end it.

If you are confident he has genuinely left for good of his own free will, I would take photographic records of the property, keep all texts, records of phone calls attempted, make a diary of your actions and impressions as these can all form part of the evidence used to defend your decisions. Get a written statement from the agent who accompanied you to the property stating their actions, impressions and the advice they gave you (an email will do). In the past, I've put sticky tape across the lock and the top of the door, photographed the pile of post inside so I can tell if anyone has returned to the property between my visits (usually to pick up post).

If I were you, I would email your tenant now, (also print off a copy and post it to his address in Saudi), explain that you have been unsuccessfully trying to contact him, that you've made a routine inspection of the property and it is clear that the property has been unoccupied for some time, that he appears to have moved out and left the keys in the property. Explain that unless you receive either a rent payment on the next due date or contact from the tenant confirming that he has not moved out and that he wants to retain the tenancy, you will imply by his actions that we wishes to surrender his tenancy at the end of the fixed term, and that you will accept the surrender of his tenancy from (date). You will attend the property at XXpm on XX June to carry out a final inspection, carry out a statement of condition report and take final meter readings. Explain that your tenant is welcome to attend this inspection or contact you to agree a more convenient time if they wish. You should also include details of the standard you expect to receive the property in on that date, how the deposit will be dealt with etc (as you would at the end of any tenancy).

I would then, on the expiration of the fixed term, (assuming no rent is paid, no contact received, and no information from neighbours saying he’s on holiday, in prison or hospital), carry out the final inspection as per normal, however taking careful documentary/photographic evidence of the contents and condition of the flat, the tape over the lock still in place showing no-one’s been in since your last visit. Keep his property safe as you stated you would. Serve notice to the tenant in the way stipulated in your AST regarding his property left behind in the flat and how long he has to reclaim it and how to do that. Deal with the deposit in the correct way and release any deposit due back to the tenant. Should they then accept the funds back that’s another tick on the evidentiary list. Once you’ve carried out the final statement of condition and retrieved the keys, you can be deemed to have accepted the tenants implied surrender of the property and the tenancy will legally be at an end.

This is how I personally proceed in these cases, you must however evaluate how strong your own case is. Are there any weak points, or risk areas? I do not have all the information about your situation, which is why I’ve put so much detail into my reply to help you make your decision. I’m not a lawyer and Implied Surrender is by no means a cut and dried issue. There can be potential pitfalls that can arise to bite you on the backside should you choose to accept an apparent implied surrender. Usually though, it is what it appears to be. It is very much a risk assessment and your approach to that risk will dictate how you proceed.

David Dorset

15:41 PM, 29th May 2018
About 3 years ago

Dear Kate,

Thank you so much for taking the time to write such a detailed reply.
I will need to check the tenancy type to see if it is statutory or contractual.
The property is fully furnished down to knifes and forks.
I am going to write to the tenant to ask for bank details to return the deposit to as i think this might get a response.
The mail dates are going back a month and the caretaker says he hasn't seen the tenant for a few weeks.
The main entrance doors are security keys that cannot be re cut and there is no trades button so in theory his leaving the keys in the flat leaves him unable to gain access.
We only have the UK language school as a contact address and they have confirmed that his course has now ended. They believe he has gone back to Saudi for good but they cannot confirm this for sure.
I am 100% sure he has not used the flat for over a month. His rent was paid in advance for the full term of the tenancy agreement.
If he were to intend to stay in the flat then the next rent payment would be on 12th June.
As you say i am going to do nothing with regards to the flat until 12th June other than empty the fridge as the kitchen is smelling bad due to rotten food.
I will email him a few times before the tenancy ends and will advise him that he can collect the keys from me at anytime if he needs to go back to the flat.
I am however hoping to get some email contact with him in order to confirm that he has ended his tenancy.
Thank you again for your advise

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