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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi, I have a property which has been rented out by a letting

Resolved Question:

Hi,

I have a property which has been rented out by a letting agent for the past 8 years. The property last year in February had benefited from a 'makeover' and new kitchen and bathroom, with new appliances. A few months later they had a new tenant for the property who paid £400 deposit and signed a 12 month lease. The tenants lease is now up and she handed back the keys on the 18th July this year.

Although I live 2 hours away I went up to the property that evening and noted that the washing machine had been removed, the house was left dirty, kitchen cupboards filthy and the patio furniture was broken (which I had provided a shed to store such items)

I notified the agent that evening, and told them to notify the tenant I would be withholding her deposit to cover the damages and missing washing machine.

A week later I went up to clean the property and on cleaning I noticed a large chunk out of the dining table. - I notified the agent again.

The agent today has notified me that the ex tenant is starting legal proceedings to reclaim her deposit back. She also stated in her letter to the solicitor that the house was filthy on her commencement of tenancy , ( the agents had sent in professional cleaners to clean the house prior to her tenancy starting) and she denies taking the washing machine and damages to the furniture.

I am annoyed not only with the tenant but with the agents too - first they blamed a girl losing the inventory -they now admit one was never done prior to the tenant moving, they failed to inspect the property after, and i also had forwarded on contact details for new tenants who they failed to contact, instead I went up to do viewings and have now a new tenant who is dealing with me directly instead of the agent!

As I live 2 hours away this is the reason I engaged a agent in the first place.

My questions are firstly with the ex tenant, I have photos showing the washing machine, and also a receipt for it, photos of the damage to table and patio furniture. Is this sufficient evidence if it goes to small claims court? What do I need to do?

Secondly with regards XXXXX XXXXX agents, are they in anyway responsible for their failings? If they are how do I deal with them/the situation? I cannot find my original contract with them, but I do know I have always requested they inspect the property after a tenant moving out, which they failed to do. They were also aware a new kitchen and bathroom had been installed.

Many thanks if you can help,

regards, linda.
Northern Ireland
Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi

Was the deposit placed in a tenancy deposit scheme?

Tom
Customer: replied 1 year ago.
I live in Northern Ireland - the property is in northern ireland. the tenancy deposit scheme didn't start until April this year, so doesn't apply to deposits taken before then.
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

Because the tenancy was not lodged in a tenancy deposit scheme (I assume because the tenant started the tenancy prior to 1 April 2013) there is no requisite dispute resolution service. This means that unless you can agree the deductions with the tenant then you will have to litigate because she will not agree to the deductions.

The lack of an inventory is not a good place to start from. The photos of the washing machine are sufficient to prove the existence of the washing machine at the flat.

The damage is more questionable because whether the deduction would be regarded as legitimate or not depends on if the tenant caused the damage. A photo of the damage is sufficient to show that damage has occurred, but not (in and of itself) that the tenant caused the damage. Therefore, because of the absence of an inventory showing detailed that there was no damage at the start of the tenancy it will be much more difficult to get the court to presume the tenant caused the damage.

You should be able to get the washing machine back on the above basis.

If the tenant accepts they caused the damage then you should be able to reclaim the monies.

If the tenant does not accept the damage but the court finds it likely that they did then you should be able to claim the monies.

If the court cannot find on the balance of probabilities that it is more likely than not that the tenant caused the damage then you would not get the monies back.

Clearly, if (as is likely) your case would have been easier to prove with an inventory then you will have a claim against your agent if you had a full management agreement with them. You need to look at your contract with them (they will have a copy, get it from them) for express clauses stating what they will do and whether they have breached them. If you cannot find any clauses then you will have a claim against them for breaching an implied contractual term by statute that they should have carried out the work with a reasonable care and skill.

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Kind regards,


Tom
Customer: replied 1 year ago.
Thanks for the reply.

Can I reclaim the cleaning expenses?

If the agent doesn't have a copy of the contract, have I still got a case against them? - bearing in mind I have used this agent for the past 7 or 8 years, and they have taken their fees all this time.

Expert:  Thomas replied 1 year ago.
Hi,

Yes, provided that either you have evidene the property was left in that state by the tenants or they accept they left it as such.

I woudl expect that you would still have a claim since preumably neither of you dispute there was a contract, but that your claim would be based on the implied term by statute of a service being provided with a reasonable care and skill.

Please remember to rate my answer. I do not receive any credit unless you do.

Kind regards


Tom
Customer: replied 1 year ago.
So regards XXXXX XXXXX agent - do I take them to the small claims court for the outstanding damages or losses?
Expert:  Thomas replied 1 year ago.
Hi,

You should see how your case against the tenant goes first. If there are deductions which are not agreed by the court THEN you should take the agent to court.

At the moment there is no loss because the tenant dispute is unresolved.

Please rate my answer.

Tom
Customer: replied 1 year ago.
Thank you for all the replies.

With regards XXXXX XXXXX ex tenant, if for any reason it gets to small claims court and i 'lose' am I liable to pay not only her court costs but any solicitors costs she has incurred? Bearing in mind that the small claims court do not recommend employing a solicitor for small claims. The ex tenant has sent me a solicitors letter, so would I be liable to pay for these? And any further costs?
Expert:  Thomas replied 1 year ago.
Hi,

Generally, they would not be able to claim the whole amount, they would only be able to claim the court fees and a nominal amount in respect of th time they have spent.

Please rate my answer. You will agree that I have more than answered your original question.

Kind regards,


Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6525
Experience: BA (Hons), PgDip, Practising Solicitor
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