Deposit Protection Boo Boo – Landlord SOS – HELP!

Hi Josie

I've been anticipating a Readers Letter like this one for some time. I suspect that thousands have made the same mistake and that you are not alone. However, as most tenants don't know the rules I suppose they just run with it. Seems like you've got a very clued up tenant and there's no doubt you screwed up.

The best suggestion I can offer at this stage is that you repay the full deposit immediately and apologise to the tenant.

There might be at least one possible "get out of jail free card" for you to play though. You said "she never returned her signed lease". Did you sign it? If not, no problem. If you did sign it that's a problem as she will certainly be signing it now if she hasn't already

However, the next thing I can think of is that she's given you one months notice. How long was the new fixed tenancy period for and when did it start? If she's signed the new tenancy but is moving out early without your consent then your tenant is liable to pay you until the end of the agreement. That may give you some bargaining power as she can't have it both ways, i.e. claim "up to 3 months fine" which isn't always awarded in full, at the same time as expecting to be released early from a contract. In any event, by acting quickly and paying back the deposit now, as soon as the mistake has been recognised, this should stand you in good stead.

You can, of course, still bring a small claims court action against her to pay for any damages. Presumably you had a decent inventory to enable you to prove any damage?

That's a start for you anyway, I will be interested to hear what advice others have to offer you.

I haven't got the paper work in front of me just now, but I think the lease was up at the end November '12. The new lease was for 12 months starting 1st December '12. There is a lease which they sign (& have witnessed) which they give to me, and at the same time I give them a copy lease signed by me (& witnessed) which is their copy for their records. So, I still have my witnessed copy waiting to be swapped with their signed lease. (That's a bit garbled,sorry). Anyway, no signed lease in her possession. Does that then make it a rolling lease from 1st December? I which case I re protected it for no reason? She only had to give me a months notice to leave, in writing, which she did on 1st Feb '13, so there's no problem there. I'm confident about the charges for new carpet, toilet & making good etc, but it's the suing me for re protecting the original deposit later than the 30 days from NEW lease, which doesn't exist in fact, that's causing me sleepless nights.

@Josie - are you saying that the copy of the new tenancy agreement that you sent to your tenant was not signed by you?

No, they have a copy that they sign and have witnessed which they then give to us and in exchange we hand them one (obviously the same) that we sign and have witnessed. That way both parties have their copy of the agreement. A letter from us accompanies the lease with details on aswell.

@Josie - in that case a new tenancy was not created. There is a big difference between offering a contract for consideration and entering into one. Now please tell me that you protected the deposit when the original contract was first signed or at the very least, before April 2012. If it was, chances are that you are in the clear and should NOT refund her deposit.

Did you cancel the previous deposit protection when you re-protected? If so that might open up a can of worms and I have no idea what would happen in that scenario.

What is the extent of the damages you would like to claim?

Also, as a matter of interest, may I ask how long you have you have been a landlord?

Yes the deposit was insured. But in order to re protect the deposit I think i had to unprotected the previous protection! I didn't know there was a way of having the same deposit protected twice at the same time. I will check this when I go in to work tomorrow as they have updated their site with regards to re protecting the same deposit. It may be that it simply rolled over to the new protection? I can't remember? Now I'm going to have to go in early to find out! (I use MyDeposits).

When you find the answer I suggest you email my deposits explaining the situation and asking them for their reply bu email. Don't just call them, get their advice in writing.

I did speak with them earlier today & they just told me I was in breach of the law to have not re protected it within the 30 days. End of.
Not helpful like you! ( still they just say it as it is I suppose).

@Josie - on the basis that I had to ask you a lot of questions to get to the bottom of the real position I think your email to MyDeposits will outline a very different set of circumstances to the ones you discussed on the phone today.

On balance of probability, if this does go to adjudication then I think you will have a very strong case, especially if you have a good inventory backed up with date stamped video and/or picture evidence.

Even if your tenant manages to persuade the adjudicator that a new tenancy was created (highly unlikely in my opinion) then the worst that will happen is that your tenant will be awarded the deposit refund plus 3 times the deposit. However, from what you have said I think that's highly unlikely. Even if that does happen though you would then be in a position to make a small claims court claim for the damage caused and of course the remaining eight months rent for the new 12 months tenancy agreement that the tenant is claiming she had.

If everything you have said here is true then you definitely have the upper hand whichever way this plays out in my opinion.

This tenant sounds like a nasty piece of work and other landlords ought to be warned about her. Have you heard about Landlord Referencing Services?

Ah, so are you saying that it doesn't matter that I re protected late because they didnt sign a new lease (even though they must have received it because they started paying the new rent increase detailed in it). In which case I can go ahead & deduct money for the damage & return the outstanding deposit that's left? Am I not admitting my mistake by having hastily re protected, late?
To answer your question about the damage, the day after they moved in, the carpet was outside! They said the lady that showed them round said it was ok to change it. (Impossible! She has worked for us for years showing people round the flats & has no reason to suddenly change the rules for someone just like that! She's furious by the way!). Anyway his NEW carpet is filthy, worn and covered in red and blue ink patches. It also has an iron mark on it and a large patch cut out & replaced in the middle of the bedroom!The toilet has been replaced,badly, 4" away from the wall. Apparently the handle didn't work! We have photos of the old one abandoned out the back, handle intact I think but with a huge chunk of porcelain missing from one side. I think the cost is around £500. (Half the deposit).