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Jamie-Law
Jamie-Law, Solicitor
Category: Property Law
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Experience:  Solicitor
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Can a tenancy deposit which was paid pre 2011 be with held

Resolved Question:

Can a tenancy deposit which was paid pre 2011 be with held by the land lord if the contract says no smoking and signed but the property was smoked in leaving it smelly and very badly nicotine stained ?
Submitted: 10 months ago.
Category: Property Law
Expert:  Jamie-Law replied 10 months ago.

Hello my name is ***** ***** I will help you with this.

What type of tenancy do they have and when did the fixed period end?

Customer: replied 10 months ago.
The tenant moved into the flat in 2006 every contract has clearly stated as a clause that it is a none smoking property and no smoking is allowed. The tenant moved out on the 12th August 2016 and every wall and surface is thickly covered in nicotine and the smell is terrible of stale fags. We also have witness statements from work men who have done some repairs saying that the tenant was smoking in front of them in the flat and ash trays full of fags every where in every room ?
Expert:  Jamie-Law replied 10 months ago.

Was it a 12 month contract when the tenant moved in?

Customer: replied 10 months ago.
It was a 12 month contract which rolled onto another every year but new contracts were signed every year by the tenant to keep records up to date
Expert:  Jamie-Law replied 10 months ago.

So I assume you signed a new agreement at some point after 6 April 2007?

Customer: replied 10 months ago.
I changed the agency that look after the properties two years ago and they inspected the property and reminded it was a none smoking property but the tenant still smoked.
Expert:  Jamie-Law replied 10 months ago.

Yes, but did you sign a new agreement with the tenant after 6 April 2007?

Customer: replied 10 months ago.
Customer: replied 10 months ago.
I apologise it's not telling me when you reply so I keep having to go back to the beginning.
Customer: replied 10 months ago.
Is there any more info you need to enable you to advise
Expert:  Jamie-Law replied 10 months ago.

Sorry for the overnight delay.

Has the tenant asked for the deposit back?

Customer: replied 10 months ago.
he took out the tenancy May 2000 and had periodic contracts to when he left August 2016.
He has asked for his £550 deposit back and if it was just a wear and tear situation of cause he could have it , but we have had the flat assessed and it's going to cost £4000 inc vat to get rid of the nicotine damage and still there is no guarantee we can remove the smell. All his contracts clearly stated it was a none smoking establishment and no smoking was to be done in the property. The flat had its own garden so there really was no excuse . The deposit was not registered as it didn't have to as it was pre 2004 and pre 6 th April 2007 acts , I have had this confirmed by the DPS. All I need to know is has the tenant breached the contract and can I with hold the deposit based upon that . I am having problems logging in so if you could reply via email like you have here I would be grateful . Thanks Jamie
Expert:  Jamie-Law replied 10 months ago.

Yes you can. You can also claim back from the tenant the rest of the £3450 its going to cost you.

You need to write and set out your losses and request a refund within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.

If they do not refund you then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://s3-eu-west-1.amazonaws.com/hmctsformfinder/n1-eng.pdf and take it to your local County Court.

The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.

If the claim is for £10,000 or less it will be a small claim so you will not need legal representation. Over this value you would need representation for trial.

Can I clarify anything for you about this today please?

Customer: replied 10 months ago.
That's fantastic , thank you Jamie
Expert:  Jamie-Law replied 10 months ago.

If this answers your question could I invite you to rate my answer before you go today, otherwise the site doesn’t pay me for the time spent with you. Thanks in advance and good luck.

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