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Ask Buachaill Your Own Question
Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10525
Experience:  Barrister 17 years experience
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My daughter has just left rented student accomodation and the

Customer Question

My daughter has just left rented student accomodation and the landlord is claiming recovery of costs to repair damage to an external balcony panel seperating her balcony from the one next door. The damage was not discovered until this spring when she e moved some scrap timber that had obscured the damage during the winter. The neighbour confirms that not only was the damage done two years previously by tenants gaining ingres from his side having forgotten their keys, but also that the landlord had tried to gain recompense from the tenant preceding my daughter this time last year. As my daughter 'did not make the landlord aware at the start of the tenancy' he claims she is liable for all costs of repair. What grounds or rights does she have to oppose this? thanks
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. Your daughter has every right and good grounds to oppose this unmeritorious claim made by the landlord. In law, a tenant takes premises "as they are". No clause in a lease can lawfully place a burden upon a tenant to point out defects in a leased or tenanted property to the landlord. The obligation of repair of a premises is placed upon a landlord. A tenant can take rent and apply the monies due as rent in repair of the premises at common law. However, the obligation of repairing premises is solely the landlord's responsibility. Here, the landlord is obviously being deceitful and seeking to place an onerous burden on your daughter to repair something that he previously solicited money to repair. This fraud should be pointed out to the landlord and it made clear that you will see that the police investigate if he persists in making this claim. At bottom, the claim is a try-on and once the landlord sees that you will stand your ground, then he will back down. However, the key point is to make clear to the landlord that you will use all your remedies if he persists in this illegitimate claim.
Buachaill and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks for your reply - so even though the document of handover makes statements like ' wooden floor without scratches' ..which my daughter did not spot or read properly but just signed, and the floor shows all manner of scratches that would constitute standard ware & tear , she is not responsible for remediating? And would that mean that in the case of any disputed damage (as with the partition I mentioned earlier) would it be the landlords responsibility to prove malicious damage? And would the balance come down to the issue, less of whether the damage was there at all, but rather whether it was caused maliciously/deliberately/as a result of woeful engligence rathe rather than an accident? thanks
Expert:  Buachaill replied 1 year ago.
2. I have only answered in relation to the issue concerning the balcony. There is no requirement for the landlord to prove malicious damage in relation to the balcony issue. It is a simple issue of whether your daughter caused the damage or not. You made clear she did not. Secondly, your daughter is liable for all repairs going beyond reasonable wear and tear. Thirdly, concepts such as maliciousness, deliberateness and woeful negligence have nothing to do with liability for repair. It is simply responsibility for repair going beyond reasonable wear and tear that your daughter is liable for.
Customer: replied 1 year ago.
Hi , if i may add a follow-up query?... If my daughter has signed a Schedule of Inventory that makes a claim of 'wooden floor - no scratches' admittedly without checking - and then at a later date she found an area of damage under the bed - would this make her liable for cost of repair? Equally, if as I believe , the landlord has pulled the same stroke with a previous tenant for the same damage, would this be deemed as fraud and a matter for the police?
thanks
Expert:  Buachaill replied 1 year ago.
3. Provisions in a lease referring to inspection does not definitively cover all issues. A tenant cannot be expected to carry out minute inspection of every part of the tenanted flat. So if the tenant has evidence that damage existed but was not noticed at the time of renting the flat, this evidence will be allowed in court, to refute liability for the costs of repair. Secondly, this issue of what damage or repair issues were noticed or were not noticed is not something the police will get involved in. They will leave the issue of what repairs were necessary to civil remedy. The only situation where the police will get involved is if there is a fraud going on. Then the police will intervene.
Customer: replied 1 year ago.
Hi , thanks for your reply. I have used your input and the landlord has now 'gone quiet' but i have the remaining problem of the deposit for the flat being held , effectively in escrow, by DPS and the landlord has refused to release. Under their terms, they will not release monies until both parties have reached agreement - the landlord has backed off his claims but has no pressure to release the funds with DPS. What is the best/most sensible recourse to require him to do so? thanks
Expert:  Buachaill replied 1 year ago.
4. Is the deposit protected by the insured scheme or the custodial scheme of the Deposit Protection Service?
Customer: replied 1 year ago.
Hi, it is under the custodial scheme of DPS. What is the significance of each?
Expert:  Buachaill replied 1 year ago.
5. The best method to get the landlord to hand over the deposit is to use the Alternative Dispute Resolution process provided by the Deposit Protection Service. The aim behind the Deposit Protection System is to protect tenants from having their deposits unfairly withheld. So by using their independent and free ADR system, you will be able to get the deposit paid over. Be aware that at the end of this ADR process there will be an adjudication as to whether the deposit should be paid over or not.