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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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I was just about to return the deposit in full to my tenants

Customer Question

I was just about to return the deposit in full to my tenants (late) when I received a letter from Amelans solicitors claiming the deposit and 1. 5 times again in order for them not taking me to court for not having registered with a deposit scheme.
Is there anything I can do? I know ignorance is no protection, but could I still transfer the money to them and hope they will let it rest? Or is there any better action that you can recommend?
Thank you
Submitted: 1 year ago.
Category: 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.

For the avoidance of doubt do I understand correctly that you protected the deposit later than 30 days following receipt please?
Customer: replied 1 year ago.

No, I did not protect the deposit at all in any scheme. They moved in in March 2012 and about three weeks ago they moved out.

Expert:  Joshua replied 1 year ago.
Thanks. Do you have their contact details to write to them?
Customer: replied 1 year ago.

I don't think they have left me their postal address, but I have their email and mobile phone numbers. They are a couple. We were not enamoured with each other towards the end. ...

Expert:  Joshua replied 1 year ago.
Thank you. The position is as follows-some of this you will likely already know based on what you say above but I will include everything for the sake of clarity.A failure to proetect the deposit within 30 days of receipt makes you liable to the tenant for breach of the Housing Act as amended by the Localism Act which requires you to protect the deposit within 30 days of receipt. Unfortunately, as you will know, it is no defence that the deposit was not protected through no fault of your own or where this was not intention. The implications of failing to protect the deposit is that the tenant can sue for its return and in addition, may claim between one and three times the amount in compensation. A judge must award a minimum of one times the deposit in compensation in addition to the return of the deposit and may award up to 3 times the amount depending upon the circumstances.Another effect of failing to protect the deposit is that a section 21 notice cannot be lawfully served though this is not relevant here from what you say.Your options at this stage are to return the deposit to him in full under cover of a letter "in full and final settlement" and hope he banks the cheque whereupon you would have good evidence that he accepted the cheque in full settlement of his claim against you or reach a written signed settlement with him which seems unlikely. The advantage of the cheque is that it will tempt the tenant and his act of banking the cheque is good evidence of acceptance. A bank transfer is not so ideal. However if you do not have their address then a cheque is clearly not possible. Instead you could email them and advise that you are transferring the deposit back to the tenant in full and final settlement with them and that if they do not accept this they should return the money to you within 7 days. If they fail to do so, again this can be used as evidence (though not quite so good as the cheque) of acceptance of settlement.Unfortuantely that they have in structed solicitors is unhelpful because the solicitor will likely tell them not to accept it because they can obtain at least 1 times the amount in compensation if they go to court.If the do not accept it you could try a part 36 offer - this is an offer made under cover of a letter which reads "without prejudice save as to costs" and states that you are prepared to return the deposit together with the same amount again as compensation in full and final settlement of any claim you may have against you. The purpose of the part 36 offer is that if they like to go to court, if they fail to do better in court against you and the amount you offer to them under cover of the above letter, they will be liable for costs irrespective of whether the win or lose. Know that the court must award at least the same amount again in terms of compensation, if they do not accept your initial offer of the return of the deposit, there is arguably little to be lost offering the minimum amount of compensation. As to whether the court would award more, would depend upon the course assessment of your conduct as landlord based on evidence the tenant can supply. There is no guarantee of obtaining more than one times the amount in compensation and accordingly the tenant will need to think carefully before deciding to go to court in the face of the above offer. In fact, if you wish to play hardball you could offer less than one times the amount in conversation on the calculation that they will accept that rather than go through the hassle of going to court but it would not be effective as a part 3 offer as we know they would do better than that if they go to court.Finally, if there were any disrepair issues relating to the property, you could seat a counterclaim against them for any disrepair matters you wish to pursue and if so, you could factor this into any offer you make above.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
Expert:  Joshua replied 1 year ago.
I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Customer: replied 1 year ago.

thank you Joshua

You have been very helpful. Just to recap:

I will transfer the deposit today. Must I definitively follow up by email ? if so, must I expressly write in 'final settlement of return of your deposit' or can write 'I apologise for delay and hope this is acceptable to you"

Can I pay back the deposit from my (unrelated) business account, not the usual personal account they used to pay rent into, so they will have to contact me for bank details? (that is, unless they chose to return deposit to the account they used to pay rent into)

If they don't return, but solicitors write to me again, what to do then?

If they do return the money, then I write part 36 offer, letter headed with phrase "without prejudice save as to costs", correct? In that letter I will also then list my counterclaim calculation (the cleaning they failed to do and repairs that were necessary)... which I then deduct from the 'deposit' or the 'once again payment', so that final amount will be less than twice the original deposit ? As you advise, they then have to consider if they want to take it to court...

Thank you again

Expert:  Joshua replied 1 year ago.
Sorry for the delayin reverting to you. I am glad the above was helpful. regarding the email follow-up following the return of deposit, case law suggests this is very important because you need to be able to point to an instruction to return the money if they do not accept it as evidence of settlement. If you simply send them some money without any cover note with the above instruction, you simply send them some money and failure to return would not under the circumstances amount to good evidence of acceptance of settlement.I think it would be better to return the money from your personal bank account if the property is owned personally by you as opposed to your business rather than using an unrelated business account as this has the potential to muddy the waters with regards ***** ***** ultimately, if they decide to return the money to you, contacting you bank details is not going to be a major obstacle. They could simply return a cheque to you or any other number of ways of returning money.If they do not return the money and the solicitors contact you again, ideally you would be able to show a decent two-week period or more has elapsed since you sent the email instructing them to return the money if they do not accept settlement as reasonable evidence of acceptance of settlement on their part and if the solicitors write to you again, after such a period, you could consider replying to them that the matter has been settled in full with their clients directly.If they do return the money at that point, you may consider moving to Plan B which is the part 36 offer and you have the wording of the letter exactly correct. As to the amount you choose to offer, this must be a matter for you but you will be aware that if they do issue proceedings, they will be entitled to the deposit plus a minimum of one times the amount in compensation. They are not guaranteed to get any more than this unless the judge considers your conduct to have been poor in some way whereby he may at his discretion award more. Obviously issue proceedings in itself is hassle and you may therefore calculate that you could get away with offering less than two times the amount of deposit on the basis they will prefer this rather than the hassle and upfront cost of issuing proceedings against you but there are no guarantees either way in this respect. Whatever amount you decide to offer, there is no difficulty with you proposing to deduct charges for which they owe you under the tenancy such as any damage cleaning and so on..I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Expert:  Joshua replied 1 year ago.
Have I been able to help you with all your questions on the above?
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
Joshua and other Law Specialists are ready to help you
Customer: replied 1 year ago.

Yes you have been helpful.

thank you.

Excellent service

Customer: replied 1 year ago.
Dear *****a

I transferred the deposit in full back to them yesterday.

This morning I emailed them. Please see the copy of my email and their response below. Any advice that you can give me relating to their reply?

Thank you.

Dear Eugene,
Thank you for your response.

Please be advised that your main contact for the deposit is Ms. Athina Hunt of Amelans Solicitors who will be dealing on our behalf from now on.

You can contact her by email or on 0161(###) ###-####

With kind regards,

Marie and Quentin



On 21 May 2015 at 09:09, Eugene Gaal <*****@******.***> wrote:


Dear Quentin and Marie

Thank you.

I have now completed the repairs and cleaning following the end of your tenancy.

However, I am returning your deposit back to you in full and final settlement.

If you do not find this acceptable, please return it to me within 7 days.

Regards

Eugene




Expert:  Joshua replied 1 year ago.
Unless the solicitor has previously advised you to refer all future correspondence to them in their earlier letter you may consider responding the former tenants thanking them for their email and noting their comments in relation to future correspondence however on the basis you have not been advied to contact their solicitor previously the contents of your previous email are considered duly served upon them.
Customer: replied 1 year ago.

Josshua,

You are right that they never advised me previously to deal with their solicitor. The solicitors letter arrived out of the blue and not signed for.

I have not acknowledged it.

The solicitors' letter first paragraph opens with "We act on behalf or the above who has contacted us in relation to their previous tenancy or the above property...........

.........We are prepared to settle this matter without the need to commence court proceedings on our client's behalf. Thus the matter can be finalised at this stage by way of a payment to "Amelans"........

...this offer is made under the auspices of Calderbank v Calderbank......

Should we receive cleared funds of (£3,875 deposit and 1,5 times of deposit again) within 28 days ... we will consider the matter closed. However, should you fail to make this payment , we will commence Court proceedings and ask for compensation representing 3 times the amount of the deposit. Further we shall also seek costs inclusive court fees"

Does this change your advice above?

thank you again.

Eugene

Expert:  Joshua replied 1 year ago.
Calderbank offer is the same as a part 36 offer. If they have not instructed you to ensure all future correspondence is directed to them then this does not alter the position. As the tenants have now done so you should not contact the tenants again save as above
Customer: replied 1 year ago.

Joshua

thank you once again. I shall not bother you further, but I want to be absolutely clear. I can take it then that, as you advised above,I now respond to the former tenants...

'thanking them for their email and noting their comments in relation to future correspondence'....

then I add that ....."However, on the basis you have not advised me to contact your solicitor previously, the contents of my previous email are considered duly served."

Correct?

Or is there a slightly less formal way to express my point, which will not cause them further concerns and consult with their solicitor for more email exchange...?

Regards ***** *****

Eugene

Expert:  Joshua replied 1 year ago.
You could say instead of the sentence about served, that you are pleased they have received your email and the return of the deposit and that you note their comments and you had not been previously advised or instructed not to contact them and shall ensure that you do not contact them directly again in any future correspondence. That is a softer way of saying the same thing
Customer: replied 1 year ago.

Joshua,

You may remember this case. You gave helpful advice.

I hope this will reach you.

Despite accepting payment/return of full deposit, tenants have proceeded to take court action. I did not reply to any of their solicitors letters.

In my defence, I wrote to the court the details why I believed that the claim had been settled with client directly.

Subsequently a Notice of Disposal /Directions Hearing has been scheduled for tomorrow.

I wrote lat week to ask for postponement and only today when I called waas i advised to submit N244. I did so today, but a judge refused on grounds that I could be represented by a barrister or solicitor. You can imaging that I am not very enamoured with legal system, when you consider how much hot air about so little....

Can you give me any advice on how to deal with this tomorrow.

Bring copies of emails sent and statement from bank?

I will try to run away from work, but i have very important meetings. In case I cannot stay much past the allocated time of 12.30 , should I leave a statement and copies of emails behind for the judge?

Regards

Eugene

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