Deposits
In summary:
- Your landlord must protect your deposit within 30 days of receiving it
- They must provide you with a certificate for the protection of your deposit, as well as with information about the scheme they have protected it in
- You have the right to edit the inventory for the property that you are provided with at the start of your tenancy
- Deposit deductions can only be made to return the property to the condition it was in when you moved in
- Any proposed deposit deductions must take account of ‘fair wear and tear’
- Your landlord or agency must provide invoices for any deductions they propose, which you can challenge
- The burden of proof for any deductions lies with the landlord - the deposit is your money
Your deposit is not their funny money
When you move to a new place, you pay a deposit in case you damage anything or fall behind on the rent. Legally, your landlord is required to put your deposit into a government “tenancy deposit scheme”, which holds on to the cash in case of a dispute until it’s sorted out. There are three different schemes – the Deposit Protection Service, MyDeposits, and the Tenancy Deposit Scheme – the details of which are at gov.uk/tenancy-deposit-protection.
Your landlord has to put your deposit into a scheme within 30 days of receiving it. They also have to provide certain information to you once they have. They are obligated to do this by section 212 and 213 of The Housing Act 2004, as well as by The Housing (Tenancy Deposits) (Prescribed Information) Order 2007.
The information they must provide includes:
- a copy of the deposit protection certificate/receipt
- the deposit protection scheme leaflet of the scheme they are using
- the amount of the deposit
- the address of the property that the deposit relates to
- The name, address and contact details of the administrator of the tenancy deposit scheme with which the deposit is held
- The name, address and contact details of the landlord
If your landlord/agency does not provide you with this information within 30 days of you paying your deposit, they cannot serve you with what is called a section 21 notice, which is one of the most common legal forms used to begin eviction proceedings against tenants. They also cannot make any deductions to your deposit. A minimum of the entire amount has to be returned to you, and if the case was taken to court, a judge could order them to refund you three times the amount of your deposit.
If you discover that your landlord/agency hasn’t protected your deposit, or did not provide you with the relevant information within thirty days of you paying it, you may find the following template letter/email from the Shelter website to be useful (click me!)
Getting your deposit back: when you pay your deposit
Finding a property to rent with a landlord or through an agency is often really stressful, expensive, and involves loads of paperwork. It can be especially difficult if you’re a group of students moving into shared accommodation for the first time. Paying the deposit is quite intimidating, because it’s a lot of money.
Remember, you can ask for information at any stage, and while you’re looking at tenancy agreements you can take your time to read carefully. Here are some questions it’s a good idea to ask:
- Ask the landlord or agent to clarify which deposit protection scheme they use, and get them to explain the process involved
- Ask whether an outside company is used to carry out the inventory of the property, and how much is charged for this. Check how long you have to dispute anything on the inventory you think is wrong (normally 7 days from being given it)
- Make sure you get a receipt as proof of your payment of the deposit
The deposit remains your money throughout your tenancy. This means that, if there is no obvious breach of the tenancy agreement, you should be returned your full deposit at the end of your tenancy.
We know, though, that this very often isn’t the case. Everyone will have experienced, or know a friend who has had money taken from a tenancy deposit unfairly. Very often these deductions are made in relation to cleaning and ‘fair wear and tear’, because these are things that agencies and landlords often appeal to as ways of taking tenants’ money. What follows are some more tips for getting your deposit back, as well as some advice on what you can do if your landlord or agency attempts to make deductions.
Getting your deposit back: the inventory
When your move in, you should be provided your own copy of the inventory of the property after the check-in. The inventory is a visual and textual record of the condition of the property.
Very often, an inventory is carried out by a separate company hired by an estate agency. If you’re renting with a private landlord, they may well compile the inventory themselves. The inventory is central to any deposit deductions which are made, as the information on it is used to establish the condition of the property and contents when you start your tenancy.
Payment for inventory charges should be shared equally with the landlord, otherwise this might constitute an unfair clause in the tenancy agreement. When agreeing to rent a property, you can ask the agency for a breakdown of inventory charges and check that these are split between you and the landlord.
Take photos when you move in and email them to someone. This will be a dated proof in case of a dispute. Amend the inventory that the agency give you of the state of the property when you move in, so that it reflects its actual condition. It’s a good idea to include in this the photos that you took.
What to make sure is in the inventory:
- Contents of each room
- Condition and quality of the furniture (if included in the tenancy)
- Condition and usability of all electrical appliances
- Condition of power sockets, light switches and light bulbs
- The quality of the surfaces (floors, tiles, wooden furniture, glass)
- Scuff marks, bends, dents and other surface damage
- Visible damage on the furniture and walls
- Rips, tears and holes in the upholstery
- Condition of all carpets
- Mould and mildew on the walls, around windows, in corners
- Hygiene of the entire property
In order for your inventory to act as a valid evidence, it needs to be signed by a witness. If possible, it’s best to get the landlord or letting agent to sign it. This way it will turn into concrete proof.
The landlord and/or letting agency can only legally require you to return the property in the state it’s in when you move in, which is why it’s such a good idea to create a photographic record and to amend the inventory.
Challenging deposit deductions
At the end of your tenancy, you generally request the return of your deposit via the protection scheme that it has been placed in. The deposit should be returned within ten days of your request. This is the time period in which your landlord may propose some deductions to be made to it. Before you move out make sure that you take photos of the property in the condition you leave it in. These could be helpful in challenging deductions that the agency propose based on their version of the condition of the property at the end of your tenancy.
If your landlord wants to hang on to some or all of the deposit, they have to provide an itemised invoice of what they are intending to use it to pay for, including receipts. At the end of your tenancy, you will likely receive something called a ‘check out report’ (or similar), which will detail the state of the property when you left, and any proposed deductions based on that. This is why getting an accurate inventory is so important – because when deductions are proposed, you can refer to the inventory as a record of the state of the property when you moved in. This will likely mean that you are able to dispute most of what your landlord or agency are trying to charge you for, since landlords and agencies often try to charge for issues that pre-exist a tenant’s time at a property.
Your landlord shouldn't take money from your deposit, for example, to:
- replace a worn carpet with a new one if it's worn out gradually over time
- fix any damage caused by a repair they didn't do when they should have, for example a leak you told them about that got worse and damaged the floor
- decorate a whole room if there are a few scuff marks on a wall that have appeared while you've lived in the property
Further, the landlord is responsible for the exterior of the property under section 11 of the Landlord and Tenant Act 1985, as well as for sanitary facilities, meaning that, unless they can prove you damaged them, you cannot be held responsible for things such as basins, sinks, baths and toilets, central heating, boilers, roofs, gutters, drains, or exterior windows.
‘Fair Wear and Tear’
The category of fair wear and tear is used to define fair use of the property over the course of the tenancy. Often examples of what constitutes fair wear and tear are the wearing of carpets and small scuffs on paintwork.
Regularly, however, deductions are made for “damages” or “lack of cleanliness” when in fact the evidence suggests what has occurred is simply fair wear and tear. The dispute often hinges on what definition of ‘fair wear and tear’ is being used. The House of Lords defines fair wear and tear as: ‘Reasonable use of the premises by the tenant and the ordinary operation of natural forces’.
So when do natural forces become in excess of what is ‘ordinary’?
Deposit protection schemes such as MyDeposits have guides which state it is “open to interpretation”, and landlords and agencies often push this interpretation to the limit. The Deposit Protection Service explains:
“Landlords should therefore keep in mind that the tenant’s deposit is not to be used like an insurance policy where you might get “full replacement value” or “new for old”. The landlord also has a duty to act reasonably and not claim more than is necessary to make good any loss.
For example:
Replacement of a damaged item may be justified where it is either severely and extensively damaged beyond economic repair or, its condition makes it unusable;
Repair or cleaning is a more likely award where replacement cannot be justified;
In cases where an item has had its value reduced or its lifespan shortened, for example by damage, an award of compensation may be appropriate.
In addition to seeking the most appropriate remedy, the landlord should not end up, either financially or materially, in a better position than he was at start of the tenancy, or than he would have otherwise been at the end of the tenancy after having allowed for fair wear and tear.”
‘Fair wear and tear’, then, is not something your landlord can use simply to replace old items. Rather, your landlord can only appeal to it in an attempt to make a deduction from a deposit if an item is beyond repair or unusable, and if they can prove that you contributed to this beyond the kind of wear and tear that can be reasonably expected over a period of time.
Template letters
If your landlord or agency informs you of their intention to make deductions to your deposit, you may find the following template letters/emails useful:
Getting your deposit back: the dispute resolution service
If your landlord or agency insist on making deductions after you’ve tried to negotiate, you can then dispute them via what is called the dispute resolution service, which is a part of each deposit protection scheme that mediates disputes between landlords and tenants. Each side presents evidence of their case, and then the dispute resolution service decides if they think a deduction is justified or not.
The Shelter website has information on how to begin this procedure for each protection scheme, and we have our own guide below to opening a dispute for deposits kept in the MyDeposits insurance scheme, based on our experiences of doing so.
The dispute resolution service can be useful for smaller amounts of money, since it isn’t worth the time of the agency or the landlord to engage in it relative to the amount of money they’re trying to deduct. Dispute resolution can also be useful if you think you have a really strong case (e.g. a lot of evidence), and the agency don’t (e.g. if the deductions are uncosted).
Opening a dispute with MyDeposits Insurance scheme
When you move out of a property, the first thing you should do is request your deposit back. This then gives the agency 10 days to propose deductions to the protection scheme. The quicker you do this, the less time they will have to invent lots of different deductions to make to your deposit.
If your deposit is protected with MyDeposits insurance scheme, you can use their template letter to request your deposit back from your agency or landlord. If you haven't heard anything after 10 days, email the agency to remind them. If you still don't hear anything or if they propose deductions, you can open a dispute via this page of the MyDeposits website. You will need your deposit protection certificate number to do so - this is part of the deposit protection information you should have been given when your deposit was first protected.
Once you've entered your deposit protection certificate number, you will then be able to present your evidence to dispute the proposed deductions. You enter this on the dispute details form, which you then upload with supporting evidence. Useful supporting evidence could include: pictures from when you moved in showing that an issue being claimed for already existed; quotes from the check-in inventory, showing the same; pictures and quotes from the check-out inventory that show you left the property in good condition; emails you sent to the agency reporting problems that you're now being charged for; legislation about disrepair and damp and mould that makes clear that it's the landlord's responsibility; any evidence that your landlord or agency didn't protect your deposit properly - anything that supports your side of the story.
After this, your landlord or agency has 20 working days to respond, at which point MyDeposits will then examine the evidence and make a decision, meaning that the whole process can take 2-3 months.
Getting your deposit back: Direct Action
In Solidarity Federation, we’re all for tenants getting their money back however they can, so if you think you’ve got a good chance with dispute resolution, more power to your elbow. However, we do have some reservations about using it, for a number of reasons. Firstly, dispute resolution keeps the problem private, allowing agencies and landlords to hide the fact that they are attempting to take money from tenants who have already given them significant portions of their income. Secondly, dispute resolution is inherently stacked in the favour of landlords and estate agents, since they tend to have more time, money, and specialist knowledge than tenants to put towards disputes. Thirdly, tenants can only go through dispute resolution within three months of the end of their tenancy, which is not always possible for various reasons. Fourthly, dispute resolution relies on us as tenants keeping evidence of issues in our homes that it is not always realistic for us to have.
Instead of the dispute resolution service, in SolFed we tackle deposit deductions using direct action public campaigns. This generally involves finding ways to make the landlord or agency’s attempt to make the deduction public, in order to pressure them into dropping it. This could mean:
- Delivering a demand letter to the letting agency, or to the landlord’s home or work address
- Picketing the letting agency
- Contacting the local press about your dispute
- Publicly ‘outing’ the landlord to their neighbours
- Bombarding their telephone or email inbox
- Occupying your letting agency
These are just examples. Anything that gives you leverage over your letting agency or landlord works; challenging their reputation or hitting them in the pocket is advisable. We prefer doing things this way because it makes the problem public, raising awareness of the fact that each of us as tenants are potentially vulnerable to this mistreatment, but that if we fight back together, we can find ways to oppose it that don’t rely on services that benefit from expert knowledge, such as dispute resolution.
We’ve been organising direct action campaigns with tenants to get deposits returned since June 2017 and have had a fair amount of success, winning a number of disputes with agencies across Brighton. We think this helps all tenants in the long run, since the prospect of direct action will make agencies think twice about even trying to make deductions in the future.
As tenants, we know that agencies exercise a lot of power over us and our living conditions, and that starting such a campaign against your agency could seem risky. If you were interested in doing this, such a dispute would not need to be directly associated with you. We conduct the actions collectively, with you choosing the level of participation in those that you were comfortable with.
All of these actions are best taken in conjunction with your family and friends, or – even better – other tenants!
To get in touch, contact us at housing@brightonsolfed.org.uk, or on 07427239960.
07427239960
