Forum Home Search Login Register
+  Landlord Forum
|-+  General Category
| |-+  Landlord Advice & Help
| | |-+  Advice regarding Counterclaim for Damages with Previous Tenant

Advice regarding Counterclaim for Damages with Previous Tenant

Pages: [1]
Print
Author Topic: Advice regarding Counterclaim for Damages with Previous Tenant  (Read 115 times)
Newbie
Posts: 6

I like property

« on: November 18, 2019, 02:00:40 PM »

Hi all,
Hopefully someone can advise or give some form of guidance. We had what can only be described last year as a nightmare tenant in a house we rented. We did have a letting agent for the first year or so and then decided to  take on the role and responsibility ourselves. When we inspected the house back in 2016 we noticed that a number of rules had been broken by the tenant as stated in the newly signed tenancy agreement, items were missing from the house  which amounted to  more than the deposit. We therefore got the tenant to  sign a letter stating the release of the deposit from one of the secure deposit schemes to  pay for the missing items/damage to  the property and changes that were not permitted as set out by the tenancy agreement. fast forward to  2018 and many issues with the tenants we managed to  get them to  allow us access to  the house and eventually it was sold. They did however leave the house in an horrific state ( we took pictures as evidence of this ) and also did not pay for the final months rent. To be truthful we did not pursue this any further as we were just grateful to  get rid of the house and get them out of it. fast forward now to  last week and out of the blue my partner who was the contact name as the landlord gets a letter through the post from the ex tenants solicitor stating that they are aware that she had the secure deposit released and  wanted to  know if she had it secured in another scheme. if not they stated that their client wanted full payment back of the deposit and also that their client was owed 3 times the deposit amount totaling 550 x 3= 1650 plus interest from 2016 when it was withdrawn plus costs?
Im sure people are going to comment on how my partner should not have taken the deposit out of a secured scheme by law but the tenant agreed to  this at the time and signed a letter confirming this.
I have wrote back to the old tenants solicitor to confirm and breakdown what their client had agreed to  previously and also stated that should we proceed to  court then a counter claim would be put forward on our behalf for the last months rent arrears, the extensive damage to  the property when they left the it ( i have pictures before and just after they left ) and also for the missing electrical items ( dishwasher/washing machine/fitted curtains to  all the rooms) as well as broken windows .... the list goes on.
I am also aware that the tenant no longer has a copy of the tenancy agreement but we do signed by them which does should a number of rules and provisions which they have clearly broken.
What are really want to  ask anyone out there is do we have timescales on when we can take the tenant to court or put in a counter claim as per the above for all the above?

Any comments or feedback would be greatly appreciated.....
Global Moderator
Sr. Member
Posts: 365

I like poetry

« Reply #1 on: November 18, 2019, 02:42:06 PM »

We therefore got the tenant to  sign a letter stating the release of the deposit from one of the secure deposit schemes to  pay for the missing items/damage to  the property and changes that were not permitted as set out by the tenancy agreement.

Either your erstwhile tenant has neglected to mention this to their solicitor or they're just hoping you'll fall for their bluff. It's perfectly legal to release the deposit with the tenant's consent in order to cover the cost of damages. It's unusual to do it mid-tenancy, because it then leaves you without a deposit, but it does happen, and because the deposit has effectively been used up, there's nothing left to protect - or allegedly fail to protect in this case.

I wouldn't mind betting the solicitor is on a no-win-no-fee basis, in which case they'll probably fold like Superman on laundry day once they know the facts.
Newbie
Posts: 6

I like property

« Reply #2 on: November 18, 2019, 05:16:13 PM »

Simon.... many thanks for the prompt response and update on our current predicament with the old tenant.
We have checked out the old tenants solicitors and i think they could well be  working on a no-win-no-fee basis.
Im sure the tenant hasn't filled them in on what they didn't comply with the list of issues they have caused us.
Our only worry is that they still try to  proceed with an attempt a court to   receive 1 to 3 times the deposit amount as we have as such not had the deposit in one of the secure schemes.
Is it illegal as such for us to  have requested for the deposit to  have been released due to  the monies owed by the old tenants which they agreed to  release and signed for ?
Once again thanks for your feedback with this issue ...

 
Global Moderator
Hero Member
Posts: 3215

I like lots of things

« Reply #3 on: November 18, 2019, 10:34:03 PM »

If the Deposit was removed from being protected (especially if Custodial, was it?) and it all allocated to the Landlord, and a written agreement exists to that effect, with agreement then the Deposit has ceased to exist... it doesn't get released, apportioned to the Landlord and then, miraculously become another Deposit that has the requirement of being protected. If you took another Deposit then it should be been protected, but that's beyond obvious, right?

I'd write a quick letter back, showing the agreement you indicate you have, state the Deposit ceased to exist (along with the requirement to protect) at that time. Consider the matter closed until more stressful comes in... it's very likely that this first letter is a macro form letter... worth a punt. You probably can't get away with doing nothing at all, but maybe...
Newbie
Posts: 6

I like property

« Reply #4 on: November 18, 2019, 11:12:27 PM »

Hi Hippogriff,
Thanks for your response. I can totally see where you are coming from regarding your comments
I have initially replied to the ex tenants solicitor with similar wording to what you have suggested and broke down in the letter briefly where the tenant went wrong and how they had agreed to release the secured deposit based on this.
I also stated that should they decide to take the matter further then a counter claim would go ahead with evidence such as a none final payment of rent for the final month and also before and after pictures of the rented house.
I may just follow up with a further letter as per your comments below
"I'd write a quick letter back, showing the agreement you indicate you have, state the Deposit ceased to exist (along with the requirement to protect) at that time. Consider the matter closed" OR should I leave it until they reply to my initial letter.
I can paste in my initial letter if you'd like to see what was put in it?
Global Moderator
Hero Member
Posts: 3215

I like lots of things

« Reply #5 on: November 19, 2019, 12:46:14 AM »

I'd try to keep everything really simple and bounded if you are confident as you imply / as I infer. Stick to the Deposit. Forget about threats of counterclaim. Your situation should be black and white if all your ducks are lined-up. Was the Deposit protected physically in a Custodial Scheme? If so, then you can't have just nabbed it, right? Insured is a different kettle of fish.
Newbie
Posts: 6

I like property

« Reply #6 on: November 19, 2019, 08:24:42 AM »

Hi Hippogriff,
The original deposit that the ex tenant signed for release of was originally in an one of the official deposit schemes until it was surrendered to my partner the landlord in January 2016
A new tenancy agreement with the same rules and agreements was then signed  for once again with no deposit and just a new monthly rental fee as we decided put it up by 50 to 600 also in January 2016.
We can prove using bank statements as can be proven by their bank statements  that no further deposit was then paid out and therefore was not needed to be protected in an official scheme as per your first comment "Deposit ceased to exist (along with the requirement to protect) at that time."
A further deposit was therefore not given.
Global Moderator
Hero Member
Posts: 3215

I like lots of things

« Reply #7 on: November 19, 2019, 02:14:42 PM »

So while there was a Deposit it was protected. When the Deposit was unprotected it was wholly claimed by you, with agreement. There was no longer a Deposit.

I mean, it seems pretty clear-cut to me? No protection claim to answer. I always wonder if I'm missing something... but, hey - I could not be. Your text here:

The original deposit that the ex tenant signed for release of was originally in an one of the official deposit schemes until it was surrendered to my partner the landlord in January 2016.

Doesn't actually clarify my question though - about whether it was a Custodial Scheme or Insured Scheme.
« Last Edit: November 19, 2019, 02:16:24 PM by Hippogriff »
Newbie
Posts: 6

I like property

« Reply #8 on: November 20, 2019, 12:17:29 AM »

Sorry for the delay in replying Hippogriff... the deposit was in a custodial mydeposits scheme.
I shall definitely let you guys know how things progress and really appreciate all your feedback
Just to confirm as well we have copies and the new tenancy agreement that we signed with the ex tenant... however I believe they have nothing.
Also when they released the deposit and we signed a new tenancy agreement there  was definitely no new deposit paid as such.
 
Global Moderator
Hero Member
Posts: 3215

I like lots of things

« Reply #9 on: November 20, 2019, 10:26:27 AM »

A Custodial Scheme wouldn't allow for a Landlord to unilaterally release the Deposit money to themselves. The Tenant would be communicated with and confirmation sought. If the Landlord seeks to make deductions (in this case 100%) from the Deposit and the Tenant doesn't explicitly agree, then it would go to a Dispute - none of that happened, therefore it is clear the Deposit being given over to you was agreed... so when it became unprotected it was handed to you and it ceased to exist as a Deposit... therefore there wasn't anything to protect.
Newbie
Posts: 6

I like property

« Reply #10 on: November 20, 2019, 11:36:07 AM »

Hippogriff  once again many thanks for you input, comments and time spent on our current situation  ,its is very much appreciated .
 ;)
Pages: [1]
Print