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Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I'm being taken to court by the agency who let me a house.

Customer Question

Hello I'm being taken to court by the agency who let me a house. He has offerred mediation. I dont know whether I should go to court or go to mediation.
Submitted: 1 year ago.
Category: Family Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

May I clarify that the agent has offered mediation please or someone else has offered it?

Do you know which mediation service has been proposed?

What are you being sued for? Do you have a defence?
Customer: replied 1 year ago.

Hi Joshua. This is the claim filed through court by the lettings agent:

Particulars of Claim

On vacating a rented property (7 Clarke Close..) there were the following dilapidations to be paid by the defendant – gardening 72.00, painting 288.00, carpet cleaning 216.00, oven cleaning 100.80 and cleaning property 24.00. we tried to defend our case with the TDS but there was a problem with their upload system so that they never received our evidence and 100% of the deposit was paid to the tenant.

The claimant claims interest under section 69 of the county courts act 1984 at the rate of 8% a year from 01/11/2014 to 11/03/2015 on 700.80 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of 20.40.

This is my defence that I issued:


Tenancy ended 31 Oct 2014. Thurs 30 Oct I still hadn’t received
any communication from the agent or Landlady so I emailed the
Landlady asking what to do with the keys. I advised that
everything would be cleaned to a professional standard, didn’t
think there was any need to chemically clean the carpets after 6
months as I did not have pets, had not worn shoes and vacuumed
them all. The lawn had been freshly cut and the shrubs pruned. On
the last day of the tenancy I rang the Landlady's work. I was
advised that she was away for a few days and not to bother
ringing her mobile as she never answers it but I could leave my
keys there. I sent a follow up email Sat 1 Oct reiterating that
the cooker hob and splash back had been cleaned to a professional
standard as had the internal windows. If she is not in agreement
please let me know so that I have the opportunity to inspect the
house with a third party as in accordance with the Tenancy
Deposit Scheme (TDS). 12 Nov I emailed the agent to say that It
was now over 10 days since I vacated the property and as required
under the Tenant Deposit Scheme, please would he arrange for the
return of my deposit. Sun 16 Nov the landlady emailed me saying
that the deposit is held by Matheson's and when the condition of
the house has been reviewed by the independent company she will
be asked to agree the release of the security deposit less any
deductions. I replied that I’m surprised after 16 days that the
house has still to be inspected. I’m sure you will agree with me
that I left it in excellent condition. Sun 23 Nov she said I
suggest that you speak to Matheson's because I do not hold the
deposit. There will be deductions from the deposit in line with
the contract you signed when you moved into the property ( e.g.
for cleaning of the carpets and oven) and further deductions , if
any, will be in accordance with the report from the independent
party employed to check the condition of the property so any
further queries should not be addressed to me. So 25 Nov as I was
clearly not getting anywhere closer to seeing my £2,100 deposit
returned, I raised a dispute with the TDS. On 2 Dec I wrote to
Landlady/agent saying it’s been 10 days since I wrote my formal
complaint to you and I still await a reply. I entered into an
assured, short hold tenancy agreement on 7 Clarke Close for 6
months from 1st May to 31st Oct 14. Mathesons were the Lettings
agent. I vacated the property on 31st Oct 14 , leaving the
property in excellent condition. I have exchanged numerous emails
with both Matheson (the agent) and the Landlady asking for the
release of my deposit. No deductions have been advised yet, 32
days since the end of the tenancy and no steps have been made to
return my deposit. I would also like to point out that you have
not complied with the Property Ombudsman’s code of practice. For
example:-15c On giving or receiving notice to bring a tenancy to
an end, you must provide a tenant with general written guidance
as to what steps need to be taken relating to preparation of the
property for the final checkout, handover of keys and other
matters. You must actively flag and draw the tenant’s specific
attention to any specific clauses or obligations within the
tenancy agreement relating in particular to proposed deductions
from the tenancy deposit but also for example, to specified
standards of cleaning etc. 16a Where appropriate to the services
being provided and unless you have instructions to the contrary,
you must arrange for, or carry out, the final check-out as soon
as is reasonably practicable after the tenants vacate and at the
lawful end of the tenancy, preferably during daylight hours. The
outgoing tenants should always be offered the opportunity of
being present to observe the final checkout. Also I notice in my
contract, reference to a leaflet entitled What is the Tenancy
Deposit Scheme which I didn’t receive. Clause 7.7 of my tenancy
states “The Agent/Member must tell the tenant within 10 working
days of the end of the tenancy if they propose to make any
deductions from the Deposit. This didn’t happen so I assume there
are to be no deductions and my deposit should be returned. Thurs
4 Dec reply from landlady saying I do not hold the deposit and
any deductions from your deposit will be after inspection of the
property by an independent party. I have told Matheson’s to deal
with this and return whatever is due to you without further
recourse to me. Please address all further queries to Mattesons .
22 Jan TDS issued report in my favour. I notice from the Court
Claim Form 18 March a charge of £100.80 for oven cleaning. When I
moved into the property the agent arranged for a company called
Oven Bright to clean the oven. I kept their price list which is
£52 for an oven. I dispute all of the charges made because they
are either fictitious or exaggerated charges, I have never
received any details of these claims. Regards ***** ***** for
interest, why would I be responsible for interest at 01/11/2014
when all of my deposit was being held by the agent and the agent
was making no steps to return it or advise why it was being kept?
The Landlady and Agent acted unreasonably and against their
professional code of conduct causing me unnecessary stress which
I would like to be compensated for.

I don't know whether I should go to court I.e. whether I am likley to win outright or accept mediation offerred. Its the Small Claims Mediation Service. My contract said I would be responsible for payment for cleaning windows inside and out, carpets, the oven. However I recieved no bills, no chance to discuss and the charges made are extortionate.

Expert:  Joshua replied 1 year ago.
Thank you for the above. May I ask did the landlord protect your deposit within 30 days of receipt from you?Did the landlord agree to use the alternative dispute resolution process of the deposit protection service and then not lodge anything further with them or did you recover your deposit using the single claim process where the agent or landlord never agreed to use the adjudicator service at the deposit service so the deposit service released the deposit to you on the single claim process without it ever being referred to the adjudicator?
Customer: replied 1 year ago.

Yes it was protected under the TDS (Tenancy Deposit Scheme).

I approached the TDS to get my deposit back. Yes the landlord agreed to use the service offerred by TDS. The TDS found in my favour. I spoke to the TDS and they found no record of a problem with their system at that time or a complaint from the agent saying they couldnt upload.

After the full return of my deposit the agent filed a claim as above to the small claims court. I wrote a defence as above. Then the agent forwarded a copy of their completed form N180 which states they agree to this case being referred to the Small Claims Mediation Service. I have to respond by 8 May file with the court and serve copies on all other parties. Presumably that means just the agent as they are the ones taking me to court.

Expert:  Joshua replied 1 year ago.
Thank you. If the landlord agreed to use the TDS system then he is in a very weak position. This is because he has agreed to the scheme rules and agreed to be bound by the adjudicators decision. He cannot appeal the decision to court just be cause he later doesn't like the decision. The landlord can ask the court to set aside the decision but he will have to have good reasons to do so such as the adjudicator made a fundamental procedural error or ignored evidence in his decision or otherwise acted contrary to scheme rules. Your defence looks generally fine but I would be tempted to make much more of the fact that you and the landlord have already both agreed to use the ADR service offered by the tenancy deposit adjudicator and a final decision has been made and to which there is no right of appeal. Accordingly you can ask the court to put the claimant to strict proof on why that adjudication should not stand or failing which strike out the claim on the ground of abuse of process. In terms of mediation, the courts always encourtage mediation however whether or not to accept mediation is dependent on whether you consider it is likely to achieve anything. In addition some forms of mediation incur costs though some is offered free. If you consider that there may be something to be achieved in mediation and it is being offered free, then there is comparatively little to lose other than some time. Both o you have to agree to use it. If you decide to go to court, you have a compratively strong hand in light of the previous adjudicators position hence why you may wish to put the above to the court. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi we're not having the free mediation because there is no one available. I was thinking maybe I should offer say £50 to the claimant to try to settle out of court. Am I ok to say I offer £50 without prejudice to settle the claim?

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