Resolving Tenancy Deposits Issues
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Expert guidance with disputes over tenancy deposits
The principle behind tenancy deposits makes perfect sense. They protect landlords from loss of income due to unpaid rent and from having to pay out of pocket for damages done by tenants. However, disputes can arise when landlords and tenants disagree about how much money is owed to the landlord and therefore how much of the deposit should be retained.
With the help of Osbourne Pinner Solicitors, you don’t have to worry about lengthy disagreements over tenancy deposits.
We’re specialists in landlord-tenant disputes, so we can guide you to a quick resolution. In fact, we have a 100% success rate in representing both landlords and tenants.
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Laws Around Deposit Handling
The legal obligations around tenancy deposits depend upon the type of tenancy involved.
Most tenants of private landlords have an assured shorthold tenancy, or AST. ASTs that began after 6 April 2007 in which the annual rent is less than £100,000 per year are subject to a law that requires their deposits to be held in a government-approved tenancy deposit protection scheme, or TDP scheme. We’ll talk more about these schemes in a later section.
Other types of tenancy don’t require the deposit to be protected in a TDP scheme. For example, resident landlords who rent out one room of their own home to a lodger aren’t required to use a TDP scheme. However, other rules around deposits still apply to all tenancies. Landlords can’t keep or spend the deposit arbitrarily. They need a good reason and evidence for retaining any part of it, and the rest must be returned in a timely fashion. They can’t use repairs as an excuse to renovate the property.
To avoid disputes later on, landlords should ensure they understand their obligations regarding their tenant’s tenancy deposit at the start of the tenancy.
Acceptable and unacceptable reasons for deducting from the deposit
Disagreements over landlords’ reasons for deducting from the deposit are common causes for disputes, so it’s important for landlords and tenants to know what deductions can and can’t be made.
Acceptable reasons for deducting from the deposit
Firstly, landlords can use the tenancy deposit to replace money a tenant owes them for rent or other bills, or for late fees if the rent was paid late.
Secondly, landlords can use the tenancy deposit to perform repairs for damages to the property or, if it furnished, to the furniture.
However, landlords should ensure they have evidence of the damage, such as photos from check-in and check-out inspections.
If tenants make unauthorised changes to the property, such as putting up permanent shelves on the wall, these could be considered damage even if the tenant sees them as an improvement. When the tenant leaves, the property should be the same as it was at the start of the tenancy, as far as is possible.
If anything is missing from the property, such as keys or objects in the inventory, the deposit can be used to replace these with a similar item.
Lastly, the landlord can deduct from the deposit if the tenant has otherwise violated terms set out in the tenancy agreement.
Unacceptable reasons for deducting from the deposit
Landlords can’t deduct from the deposit to pay for ‘fair wear and tear’ to items. This is the ordinary wear and tear that would happen as a result of someone living in a property. Naturally, the longer the tenancy lasts, the more wear and tear will happen. But disputes may arise if landlords and tenants disagree about what counts as wear and tear.
If something in the property has been damaged or broken, landlords may not be able to charge tenants for the cost of a brand-new item if the original was old and not as expensive as a new version. The amount taken from the deposit should equal the loss the landlord suffered in losing the original item. Likewise, landlords must choose the most affordable way to handle a problem. If an item can be fully repaired, landlords must choose to repair rather than to replace.
Landlords can charge for cleaning services if they feel the property was left unclean. But they can only ask for the property to be cleaned to the same standard it was when the tenant moved in.
Lastly, landlords can’t hold tenants accountable for damage caused by problems they were told about and failed to address.
Rules around tenancy deposit protection schemes
As we’ve mentioned, assured tenancy agreements signed after 2007 require the landlord to place the deposit in a tenancy deposit protection scheme, or TDP scheme. TDP schemes are third parties who make decisions about returning the deposit and try to help resolve disagreements. Some deposits are held in custodial schemes, meaning that they hold the deposit, and some are held in insured schemes, meaning that the landlord holds the deposit but registers it with the scheme.
There are additional rules relating to TDP schemes that landlords and tenants should know.
Once the landlord has received the deposit from the tenant, it must be placed in or registered with a TDP scheme within thirty days.
Once the landlord has decided how much of the deposit they feel they should return, they must communicate with the tenant in writing and give reasons for any deductions from the deposit. If the tenant agrees, the deposit will be returned within 10 days’ time. If the tenant disagrees, the amount that they disagree about will be held by the TDP until the dispute is resolved, while any remainder will be returned. To facilitate this, if the deposit was held in an insured protection scheme, the landlord must give the disputed amount to the scheme once the dispute has arisen.
Resolving tenancy deposit disputes with a TDP scheme
If a tenant disagrees with a landlord’s assessment about deductions from a deposit, the first step is for the tenant to discuss this with the landlord. If an agreement cannot be reached, tenants or landlords can contact the TDP scheme to take advantage of a free dispute resolution service. There are three TDP schemes in England and Wales: Deposit Protection Service, MyDeposits and Tenancy Deposit Scheme, but they all provide this free service.
If tenants want to use this service, they should begin the process at least 10 days after the tenancy’s end but no more than three months after it.
If the landlord agrees to allow the TDP scheme to help resolve the issue, both the landlord and tenant will submit their evidence to the TDP scheme. If either landlord or tenant does not want to use the TDP scheme’s dispute resolution service, the dispute goes to court. Even if the dispute does go to court, the amount of money in dispute is still retained by the TDP scheme.
Tenants and landlords have only one opportunity to send evidence to the TDP, and there are no appeals, so it is imperative to send strong evidence and appropriate information. The decision is final and binding.
If a tenant attempts to use the TDP scheme’s dispute resolution service but the landlord does not respond to attempt to contact them by the TDP scheme, the only recourse is court.
Before starting any court action about a tenancy deposit, a tenant should contact the landlord through a letter asking for the deposit to be returned, explaining the details of the dispute and explaining that you will take court action if you do not receive a response within a set, reasonable time frame.
Resolving tenancy deposit disputes when the deposit is not held in a TDP scheme
Tenants who do not have an assured shorthold tenancy that began after 2007 won’t be able to apply to a TDP scheme for help with resolving their dispute.
In this case, tenants should first contact their landlord and/or letting agent in writing via a letter to try to address the dispute. If a resolution cannot be reached, the next step is to go to court. At this point, it’s likely best to seek legal advice.
How to avoid issues with tenancy deposits
For landlords, it’s essential to follow all the proper steps for handling a deposit, including using a TDP scheme if required.
For both landlords and tenants, a comprehensive check-in and check-out inventory is crucial. The more detailed the inventory, the easier it will be to resolve any disputes. Photos and video can be very helpful.
It’s also helpful to have a tenancy agreement and, if you have one, to ensure that it is well-written and, of course, legal. All parties should clearly understand their obligations.
Lastly, documentation is important. Since tenants are liable for damage caused by their failure to inform the landlord of a problem, tenants should document all of their efforts to contact a landlord and tell them about issues. You can ask an expert such as an electrician or plumber to provide evidence in writing about their opinions on damage to the property. Bank statements and receipts for cleaning services and purchased items can also serve as evidence.
What Osbourne Pinner Can Do for You
Advice About Tenancy Agreements and Deposit Handling
If you are a landlord, we can help you at the start of a tenancy as you write your tenancy agreement and decide how to handle the tenancy deposit. If a dispute arises, we can advise both landlords and tenants about their rights and obligations, such as what is and is not a fair deduction from the tenancy deposit.
Mediation Services
If a dispute arises and the deposit is not held in a TDP scheme, we can provide a mediation to help you avoid court. If your deposit is held in a TDP scheme but you prefer not to take advantage of their free resolution service, we can also assist and help you to avoid going to court.
Court Representation and Correspondence
Some disputes over tenancy deposits do end up going to court. If this happens, we can represent you in court and take care of paperwork related to the court case. We’ll ensure the case is handled properly and seen to a speedy resolution.
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If you, as a landlord or tenant, disagree about what should be done with a tenancy deposit, we’re here to help. Our expertise as a landlord and tenant solicitor means we know exactly what each party is responsible for, how to support your case with evidence, and how to get you to a quick resolution.Â
Osbourne Pinner offers a thirty-minute initial consultation free of charge – just choose whether you’d like to visit us in person or speak with us over video call. To book your consultation, call our offices on 0203 983 5080 or use our online enquiry form.
- Over 1000 successfully resolved landlord-tenant disputes
- Expert advice about tenancy deposit handling
- Specialist help with court cases around tenancy deposits
- Fixed fee with instalment options
- Fast processing time
- Track record of 100% success as a landlord and tenant solicitor
BOOK A FREE CONSULTATION
We do not offer Legal Aid.
FAQs about Tenancy Deposits
No, this type of scheme is only for tenancy deposits, not holding deposits. However, if a holding deposit turns into a tenancy deposit on an AST, then the landlord must place the deposit into a TDP scheme
When the landlord puts the deposit into the TDP scheme, they must inform the tenant of the name of the deposit holder and the tenancy deposit scheme in which the deposit is held.
The first step for the tenant is to contact the landlord. They can also contact the tenancy deposit schemes in their area to check where their deposit is held. If the dispute cannot be resolved this way, the tenant can apply to the local county court. It’s likely best to seek legal advice before applying to court.
The repercussions for a landlord can be severe. If a tenant applies to their county court about the matter, the landlord might be required to pay the tenant up to three times the amount of the deposit.
A tenant whose deposit has not been placed in a TDP and should have been might also not be required to move out at the end of their tenancy.
Responsibilities for mould and damp are complicated. Tenants are responsible if mould or damp is caused by their own actions. For example, if tenants did not inform the landlord about a water leak and mould resulted, the tenants would be responsible. However, if the mould is caused by structural issues and if the tenant informed the landlord as soon as they noticed the problem, the landlord is responsible. If you’re uncertain whether a landlord can deduct from a deposit because of mould, it’s best to seek legal advice.
