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DEPOSITS
This subject has been the curse of
many a landlord and tenant since lettings began. It is the most
contentious area I have come across in lettings and can lead to some
very expensive court cases.
No landlord has an automatic right to
use the tenants’ deposit monies for anything other than what has been
agreed in the tenancy agreement.
Tenants can not use their deposit
monies as the last months rent – something most of them are determined
to do and will do whether you agree to it or not.
Deposit monies are given to a
landlord or an agent of the landlord as a bond against damage caused to
the property during the tenancy. They are not given to landlords as
money to use for other enterprises such as a holiday or a spending spree
in town. Misuse of tenants’ money can in fact be construed as theft.
The point being that the money is still the tenants’ money and no
deductions can be made from that amount without the tenants’
permission (always get it in writing).
When it comes to damages, too many
landlords think they have the right to replace the washing machine and
deduct it out of the deposit even though they had meant to replace the
washing machine 2 years ago. Where an item has failed or is damaged
through wear and tear, then the landlord can not charge the tenant.
Wear and tear is a funny old thing as
it is a very grey area in itself – what is fair wear and tear? Hence
the importance of having an independent inventory carried out before the
tenancy begins. It is difficult at the best of times to prove that
something has broken down or worn out due to misuse by the tenant.
Some agencies and landlords will hold
the deposit as stakeholder. This means that no monies can be deducted
from the deposit without the agreement of both parties in writing – by
far the most effective way to hold the deposit. In cases where
deductions can not be agreed after a length of time, the matter can be
referred to a board of arbitrators. I have always found that when
matters get this far, both parties soon come to an agreement as the
board of arbitrators are not cheap and they will often decide who should
fit the bill.
When holding a deposit, do it fairly.
Explain in full why you believe the monies should be deducted to the
tenant, again do it in writing, therefore having a record of what you
have said and why. If the tenant is fair minded they will often agree to
what you have to say. Do not try and keep the whole deposit – the
tenant will never agree to this and then the long drawn out process of
deciding what monies should be kept etc starts and everyone gets very
fed up!
If the deposit is not enough to cover
the damages caused, you will need to start proceedings against the
tenant. Remember though that this is a lengthy process. In my opinion it
is a good idea to have smart accommodation, but do not go over the top.
Do not put anything of any sentimental value in the property and
anything of worth should be removed. However, you will need to spend
some money on items especially if furnished – but do not go over the
top. A great idea is to buy a set of crockery and cutlery that will
provide you with spares so that you can replace missing and broken
items. For example if you have a one bedroom flat, then you need provide
no more than 4 of everything – buy a set of 6 or 8. By not providing
much of anything you are discouraging people from having a lot of
friends around for that ever popular party! Thus you are also minimising
the wear and tear factor!
The importance of having an inventory
clerk is all to clear should a case have to go to court. If you have
prepared the inventory yourself and have decided that you are going to
deduct monies from the deposit and the tenant decides to take you to
court, you will more than likely find that the judge favours the
tenants’ point of view. He will point out that your are not qualified
to carry out an inventory and that you are in no way independent of
either party, therefore you are biased and have made an unfair
judgement.
At the end of the day if more
landlords and tenants were fair in nature there would be very little
problem. Alas not the case. Use the tenants’ money with their full
knowledge, keep a written record of deductions and why and explain to
the tenant in full why you are holding back the monies.
Should your tenant decide to use the
deposit as the last months rent and leave the property in a dreadful
state then you have recourse on the tenant and if the damage warrants
it, you can pursue the tenant for the costs you have incurred trying to
put everything back. Make sure it is worth it though!
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