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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi there. As a local estate agent, we have been asked by

Resolved Question:

Hi there.

As a local estate agent, we have been asked by a landlord to intervene in a dispute between them and their tenant (found directly by themselves). As trust issues between both parties have broken down completely, the tenant asked the landlord the transfer his deposit to our DPS account which has been done so we are now the stakeholders.

The tenancy ends officially on 31st May, but due to work relocation the tenant has left the property on 29th April '14. He has submitted and we have confirmed all the relevant meter readings and account closed of in his name as required. There is a dispute over the condition of the garden. Tenant claims the rose bushes and other plants were diseased and the thorns and brambles posed a safety issue for his 3 young children so he had them removed. Landlord extremely upset as it was done without her permission so wants her garden reinstated. Tenant has letter from a garden expert confirming his claims (although said expert is a relative). Unfortunately there was no inventory prepared at the start of the tenancy. (Another reason landlords should have their properties professionally let & managed from the onset but that's a different issue).
Landlord now wants to wait till their return mid June to assess garden themselves and decide what if any of tenant's deposit should be returned. Tenant unhappy as he leaves country today and required his deposit released - does not feel 6 weeks is reasonable to have to wait to have his deposit assessed.
1) Is there a timeframe in which a landlord needs to inform a tenant of proposed deductions at the end of a tenancy? I've seen rough guidelines depending on scheme used but wondered if there was legislation on this for landlords to not unreasonably withhold deposits
2) Surely their 'assessing' garden now or in 6 weeks time does not change from the fundamental issue (whatever their findings) that in the absence of an inventory report it is one party's word against the other? Admittedly the tenant should have advised of his intention to uproot garden prior to doing so... what's the likely legal outcome of this?
3) Our proposal so far has been for both parties to split the cost of putting in a low maintenance practical garden going for ward for future tenants. Tenant amenable, landlord not!
4) Neither party wishes to incur exorbitant legal fees to resolve! Any idea the view the ADR is likely to adopt on this? We have tried to warn the landlord that in the absence of clear evidence or paperwork to support their claims, the law is very much in favour of tenants. Would you agree?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

There is no statutory law that sets out how long the landlord has to return the deposit. Some tenancy agreements set out a timetable which the landlord agrees to in its terms; the deposit protection schemes each have their own timetables which the scheme requires the parties to adhere to but there is no specific penalty for their not doing so.

Joshua :

The lack of an inventory is problematic for the landlord. If the landlord has no inventory decisions in the courts have repeatedly shown that in the absence of an admission from the tenant on a specific point the landlord can rarely be successful. From what you say here the tenant does admit that he removed the bushes so the above issue is to some extent overcome. However there is an argument as to the state of the bushes (disease etc) which again in the absence of an inventory is going to be difficult for the landlord to rebut. The expert evidence is of limited value as he is a relative but the landlord will not be able to show that the bushes were not diseased if the tenant says they were without an inventory and this is a fundamental problem for the landlord.

Joshua :

If the tenant is unhappy with the amount of time the landlord proposes to take to resolve the matter, he can either submit a claim to ADR at DPS or if he prefers or if the landlord refuses to use ADR, issue a claim in the small claims court to recover the deposit. In either event as above the lack of an inventory is likely to be extremely prejudicial to the landlords position. I will not go as far as to say the landlord cannot be successful given the tenants admission re the bushes but in my view he would be unlikely to succeed in defending a claim for the return of the deposit in the absence of an inventory.

Joshua :

Your proposal to split the cost is certainly worth a try in terms of a compromise but this is obviously up to the parties to agree upon. If the tenant digs his heels in, as above, in my view the tenant is likely to be able to recover his deposit if he claims the bushes were diseased etc if the matter proceeded to court or ADR as the landlord would have to prove they were not in order to seek damages for the bushes removed.

Joshua :

ADR is as you will be aware free of charge. Small claims court is relatively costs effective though not free. The costs depend on the amount involved. The costs can be found using the below link - -see pages 3 and 5

Customer:

Hi Joshua,

Joshua :

In general terms the landlords failure to obtain an inventory is frequently fatal to any claim for deductions for a deposit unless the landlord can obtain an admission from the tenant as regards XXXXX XXXXX caused. Here he has an admission as to removal but faces the problem that the tenant claims bushes were diseased. Unless the landlord can find a way of showing that they were not diseased on the balance of probability he will struggle to recover monies for the replacement of the bushes as diseased bushes are of no financial value.

Customer:

Your comments are very much in sync with our thoughts and advice. Clearly the landlords were and are still emotionally attached to their tudor styled rose garden however it begs the question given the cost to restore why save in the 1st place on the cost of a professional independent inventory?!

Customer:

Thank you for answer very clearly. The position seems very clear to us. We can only advise the landlord accordingly and hope they see sense in the merit of our proposal.

Customer:

Very helpful response indeed! Have a great bank holiday weekend!

Joshua :

Quite so. I think all you can say to the landlord is the lack of a professionally prepared inventory is at best likely to severly hamper any claim in the absence of a full admission from the tenant and more often than not will preclude a claim altogether.

Joshua :

Accordingly whilst negotiation on the point is worthwhile, they should only proceed to court if they are willing to gamble court fees on the point.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

Will do. Thanks again!

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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