Deposit on rented property and just got council house.

Claw Hammer

antoinolachtnai wrote: »

Two tenancies don't exist. The first one ends when the first tenant vacates. The law is crystal clear.




Mitigating damage is a thing to do with contractual liability. It isn't a contractual liability. It's a statutory liability.

They can just deduct it. They don't need to rely on the lease to do this. There's a statutory provision. It's unpaid rent.

Section 37 read in conjunction with 12(4) is crystal:

37 (4) Nothing in the preceding subsections affects the liability of the tenant for rent for the period that would have elapsed had a notice of termination giving the required period of notice been served by him or her.

12 (4) Subsection (1)(d) applies and has effect subject to the following provisions:

(a) no amount of the deposit concerned shall be required to be returned or repaid if, at the date of the request for return or repayment, there is a default in—

(i) the payment of rent and the amount of rent that is in arrears is equal to or greater than the amount of the deposit ...

The RTB invariably insist that the ladlord mitigate his loss so won't allow a landlord collect on the double. No landlord has yet challenged this or anything else decided by the RTB in the High Court. You can blather away all you like about statutory rights but unless someone is willing to gam,ble a high court case on it, the law is as the RTB says it is.

coffeyt

Don't know if this advice will help at all but before we bought our home, we were in a council house for a few years and renting privately before that.

When the council rang to give us date we could get keys, it was the exact same scenario, only about 10 days notice and we needed to give the landlord months notice.

I explained this to the council advising I couldn't afford to pay rent on both properties for nearly 3 weeks, there was a lot of twoing and froing but eventually the council agreed we would not start renting for another two weeks after the date initially given which meant we only paid rent on the two properties for a few days.

It might be worth contacting the council to see if its possible to delay the start date of the tenancy?

antoinolachtnai

Claw Hammer wrote: »

The RTB invariably insist that the ladlord mitigate his loss so won't allow a landlord collect on the double. No landlord has yet challenged this or anything else decided by the RTB in the High Court. You can blather away all you like about statutory rights but unless someone is willing to gam,ble a high court case on it, the law is as the RTB says it is.

Have you an example of where the Tribunal (not the adjudicator) has done this, i.e., required landlord to return deposit where the statutory notice had not been given and rent not paid for the period between vacation and end of the proper statutory notice period?

ShaShaBear

coffeyt wrote: »

Don't know if this advice will help at all but before we bought our home, we were in a council house for a few years and renting privately before that.

When the council rang to give us date we could get keys, it was the exact same scenario, only about 10 days notice and we needed to give the landlord months notice.

I explained this to the council advising I couldn't afford to pay rent on both properties for nearly 3 weeks, there was a lot of twoing and froing but eventually the council agreed we would not start renting for another two weeks after the date initially given which meant we only paid rent on the two properties for a few days.

It might be worth contacting the council to see if its possible to delay the start date of the tenancy?

It seems to be a common thing, the council leaving renters and landlords in the lurch. She probably could have delayed it, but she's already handed in notice and is handing back keys to the property she's renting, so I think its a bit late for that now. She'll just have to hope the property is rented quickly and the landlord gives her back what she's owed.

pilly

ShaShaBear wrote: »

It seems to be a common thing, the council leaving renters and landlords in the lurch. She probably could have delayed it, but she's already handed in notice and is handing back keys to the property she's renting, so I think its a bit late for that now. She'll just have to hope the property is rented quickly and the landlord gives her back what she's owed.

I sincerely hope the council don't let her down now and not have the property ready.

Claw Hammer

antoinolachtnai wrote: »

Have you an example of where the Tribunal (not the adjudicator) has done this, i.e., required landlord to return deposit where the statutory notice had not been given and rent not paid for the period between vacation and end of the proper statutory notice period?

No, no more than you have an example where the board allowed a landlord to retain the deposit.

antoinolachtnai

Claw Hammer wrote: »

No, no more than you have an example where the board allowed a landlord to retain the deposit.

That is because the issue would be dealt with under Section 92(3).

ShaShaBear

antoinolachtnai wrote: »

That is because the issue would be dealt with under Section 92(3).

Well I've just been informed the most recent from the landlord is that "that patchy paintwork is going to set me back in finding tenants, and that will be reflected in your deposit".
Guess we know what we're dealing with now.

antoinolachtnai

You'll have to see what the landlord comes back with in writing ...!

myshirt

The reason why you are getting mixed responses is because people are doing 30-60 seconds of googling and a bit of curbside lawyering with no practical experience of these situations. That's what happens on internet forums.

Unless the landlord is a complete idiot, you won't be getting any deposit back.

By itself, not an amount of money to be sniffed at, but in the overall scheme of things it is actually buttons. Let it go. Persue the issue and it might end up costing you more. You have to box smart here. Move on.

dubrov

myshirt wrote:

Unless the landlord is a complete idiot, you won't be getting any deposit back.

Care to back that up.

Landlord sounds like a cheapskate.
He is trying to charge someone for losses while simultaneously upping the rent. He then expects the tenant to cover wear and tear on the paint.

He'd be an idiot to follow this course of action against anyone who is aware of their rights.

Samuel T. Cogley

The LL is ALWAYS at a disadvantage if this sort of thing goes to the RTB. It's usually much more hassle than its worth so I have to disagree that it's boxing clever not to pursue if the LL is unwilling to be reasonable. However, one must not lose sight of the fact that the correct notice is not being given and some loss of deposit is completely reasonable.

ShaShaBear

Samuel T. Cogley wrote: »

The LL is ALWAYS at a disadvantage if this sort of thing goes to the RTB. It's usually much more hassle than its worth so I have to disagree that it's boxing clever not to pursue if the LL is unwilling to be reasonable. However, one must not lose sight of the fact that the correct notice is not being given and some loss of deposit is completely reasonable.

Agreed. That there is a deduction to be made is very reasonable and I told my friend as much. However, given that the property is nice, well-maintained, with new floors and freshly-painted walls, in a nice area in a bustling town and under the rent allowance limits still, I can't see it taking him a month to rent it!
Actually, to be fair, if I resided in the same district, I'd probably have taken the lease off her at the increased rent!

Bushmanpm

ShaShaBear wrote:

Well I've just been informed the most recent from the landlord is that "that patchy paintwork is going to set me back in finding tenants, and that will be reflected in your deposit". Guess we know what we're dealing with now.

When was the property last decorated?
I'm pretty sure if this went to the RTB they would declare that as "wear and tear" and NOT damage which is what the deposit is meant for. I think your friend should tell the LL they are considering going to the RTB to open a case if that's the only problem the LL has. As mentioned before, the RTB are generally in favour of the tenant and the LL is looking at his greed costing him dearly. The LL should look to recouping the redecorating cost from the EXTRA E300 he intends to charge (on top of the regular rent already!) TBH, he sounds a bit of a clown and a chancer and personally I'd call his bluff with the threat of a RTB case.

Mrs OBumble

ShaShaBear wrote: »

I genuinely just assumed there was something in place whereby the council allowed you to fulfill your obligations as a tenant before cutting you off

Social housing providers, including councils, tend to be a bit dumb like that. It's especially maddening because she's on HAP - but given that a person on HAP is being offered a council house, I'm guessing she's in an area where there's low demand for council properties.

And that's why she should make them wait a bit for their rent: there's no chance that she'll be evicted, provided she's willing to catch up.It's virtually impossible for her to be evicted for late payment. And as far as her reputation goes, the council are well-used to late payments.

ShaShaBear

Bushmanpm wrote: »

When was the property last decorated?
I'm pretty sure if this went to the RTB they would declare that as "wear and tear" and NOT damage which is what the deposit is meant for. I think your friend should tell the LL they are considering going to the RTB to open a case if that's the only problem the LL has. As mentioned before, the RTB are generally in favour of the tenant and the LL is looking at his greed costing him dearly. The LL should look to recouping the redecorating cost from the EXTRA E300 he intends to charge (on top of the regular rent already!) TBH, he sounds a bit of a clown and a chancer and personally I'd call his bluff with the threat of a RTB case.

I've told her to keep correspondence with them in writing now if possible in the hopes of getting some of this "deposit retention" stuff in black and white and to make sure she lets them know that she knows her rights and will fight for them. The property was freshly painted when she moved in almost 4 years ago and has not been painted since. Her kids are older so there's no drawing, food spills, scuffs etc - simply a patchy job done to begin with!

ShaShaBear

Mrs OBumble wrote: »

Social housing providers, including councils, tend to be a bit dumb like that. It's especially maddening because she's on HAP - but given that a person on HAP is being offered a council house, I'm guessing she's in an area where there's low demand for council properties.

And that's why she should make them wait a bit for their rent: there's no chance that she'll be evicted, provided she's willing to catch up.It's virtually impossible for her to be evicted for late payment. And as far as her reputation goes, the council are well-used to late payments.

I think to be honest (and I'd feel the same) it would be her reputation to herself that would annoy her the most. I wouldn't personally like to think "I'll just skip the rent, sure the council are used to it".
I would definitely think there's a very high demand, but she's been on the list for circa 10 years, so it was bound to happen eventually!

pilly

ShaShaBear wrote:

I've told her to keep correspondence with them in writing now if possible in the hopes of getting some of this "deposit retention" stuff in black and white and to make sure she lets them know that she knows her rights and will fight for them. The property was freshly painted when she moved in almost 4 years ago and has not been painted since. Her kids are older so there's no drawing, food spills, scuffs etc - simply a patchy job done to begin with!

Hang on, you said the walls were freshly painted in an earlier post?

rawn

pilly wrote:

Hang on, you said the walls were freshly painted in an earlier post?

I think she meant that will be freshly painted for the next tenant.

ShaShaBear

rawn wrote: »

I think she meant that will be freshly painted for the next tenant.

I don't remember saying it was freshly painted, but to clarify, it was freshly painted when she moved in and she hasn't touched it - so the patchy paintwork the landlord is claiming will incur rental loss is his own fault as she did not paint it.

Edit: Oh I see where you mean - no, rawn is right - I meant when the property is up for rental it will be freshly painted!

Lux23

So why would the patchy paintwork matter?

Claw Hammer

antoinolachtnai wrote: »

That is because the issue would be dealt with under Section 92(3).

Section 92(3( isn't a final determination. It is most unlikely such a determination would be made in advance of hearing evidence. In the present case the landlord is demanding possession earlier than the tenant would have been obliged to remain for the full notice period. That could be construed as agreement to early termination. There is a reported case of this happening.
https://www.rtb.ie/docs/default-source/tribunal-reports/tr1016-001988-dr0716-27929-report.pdf?sfvrsn=0

ShaShaBear

Lux23 wrote: »

So why would the patchy paintwork matter?

That's the point. She didn't paint it and isn't obliged to so why is the landlord suggesting that the patchy paintwork slowing down replacing my friend is a good enough reason to retain her deposit?

Claw Hammer

ShaShaBear wrote: »

That's the point. She didn't paint it and isn't obliged to so why is the landlord suggesting that the patchy paintwork slowing down replacing my friend is a good enough reason to retain her deposit?

Se he can justify keepin the deposit obviously.

Samuel T. Cogley

ShaShaBear wrote: »

That's the point. She didn't paint it and isn't obliged to so why is the landlord suggesting that the patchy paintwork slowing down replacing my friend is a good enough reason to retain her deposit?

Well he kind of has a point. If the paintwork is putting people off, it's a factor preventing him mitigating the damage caused by the lack of notice. Now if he starts to suggest that more of the deposit needs to be retained to correct the paintwork, you're looking at a different issue.

That's assuming there is even a duty to mitigate the damage which antoinolachtnai argues, rather convincingly, there is not. I'd suggest speaking to the coucil if she has not already done so and pushing this matter as I doubt this is the first or last time this is going to happen putting both the tenant and Landlordin very difficult positions.

Claw Hammer

Samuel T. Cogley wrote: »

Well he kind of has a point. If the paintwork is putting people off, it's a factor preventing him mitigating the damage caused by the lack of notice.

That is sophitry. He has had years to deal with it. If he got ful it at the end. l notice, he would still have to deal with it at the end. That landlord is a conniving thief.

Samuel T. Cogley

Claw Hammer wrote: »

That is sophitry. He has had years to deal with it. If he got ful it at the end. l notice, he would still have to deal with it at the end. That landlord is a conniving thief.

The equally valid argument can be made that if he'd had full notice he would have been able to deal with it. Taking the extreme view in these matters helps no one frankly, there are faults on all sides here.

ShaShaBear

Samuel T. Cogley wrote: »

The equally valid argument can be made that if he'd had full notice he would have been able to deal with it. Taking the extreme view in these matters helps no one frankly, there are faults on all sides here.

It is true that he would have had to paint at the end of the notice anyway. For what it's worth, I've been in the room he's referring to within the last week, and it certainly didn't appear patchy - certainly not enough to put a tenant off anyway. He is suggesting that the paint issue will slow down getting a new tenant, and that would be reflected in her deposit.

All in all it's a big mess, but I will tell her to go to the council and have words with them. Their inability to hold the house for her and let her continue on a HAP basis for 4 weeks while she serves her legal notice is a bit ludicrous considering she has to take a course on "being a good tenant" before she moves in tomorrow :rolleyes:

Samuel T. Cogley

ShaShaBear wrote: »

It is true that he would have had to paint at the end of the notice anyway. For what it's worth, I've been in the room he's referring to within the last week, and it certainly didn't appear patchy - certainly not enough to put a tenant off anyway. He is suggesting that the paint issue will slow down getting a new tenant, and that would be reflected in her deposit.

He could have done it during the notice - granted I'm playing devils advocate a bit here.

ShaShaBear wrote: »

All in all it's a big mess, but I will tell her to go to the council and have words with them. Their inability to hold the house for her and let her continue on a HAP basis for 4 weeks while she serves her legal notice is a bit ludicrous considering she has to take a course on "being a good tenant" before she moves in tomorrow :rolleyes:

Not even hold the house - just compensate the LL accordingly. This HAP scheme is a total disaster anyway so throwing a few more quid at it isn't going to make much difference.

gizmo81

Refer a dispute to the RTB, telephone mediation is free.