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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12081
Experience:  30 years as a practising solicitor.
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Unfortunately I am finding that deposits companies are ignoring

Customer Question

Unfortunately I am finding that deposits companies are ignoring specific terms of the tenant landlord tenancy when arbitrating. The Deposit companies are also ignoring the landlords reinstatement costs and making simple presumptuous valuations of the life left in the property damaged.
Bearing in mind that the (Housing act 2006) legislation defines pertaining deposits as those taken against 'obligations' and 'liabilities which so arise'. Is there anyway I can take a second deposit on the tenant's conduct toward me or the deposit companies ignoring the contract, as well as the main deposit on the tenancy obligations and liabilities?
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.
No, as a matter of law you can't take a second deposit and retain it yourself. This would be in direct breach of the 2006 Act.
Your remedy where you are dissatisfied with the decision of an adjudicator is to demand a review of the decision on th basis that the adjudicator has erred in fact or law.
The reference for this is Rule 37 of the Tenancy Deposit Schemes (Scotland) Regulations 2011.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.

Ok, so I discover.

However I refer you to your response to a previous question where it appears I may have a separate contract for something else and a deposit on that.

It would appear to interfere with my civil liberties to prohibit me from taking a deposit on something else with tenants?


Expert:  JGM replied 3 years ago.
You can, as long as it's not "in connection with a tenancy" as the legislations says.
Customer: replied 3 years ago.


are my costs of reinstatement of my furniture, paying unpaid bills, etc. "in connection with the tenancy"?


Expert:  JGM replied 3 years ago.
Normally these obligations, or the breach of them, would arise from the tenancy agreement.
Customer: replied 3 years ago.

So, we are back to the original question: why are the deposit companies not enforcing the contract, which you originaly responded not in their rules? SA

Expert:  JGM replied 3 years ago.
Because they are working to their rules and not taking into account the tenancy contract. If they don't deal with that at the review stage then the only further remedy may be to the Court, possibly by way of judicial review.
However, I'm not aware of any case that has gone that far, presumably because of the amounts of money involved, which are low on a case by case basis. It really needs a test case to clarify the position.
Customer: replied 3 years ago.

So, why are they not he having regard to the tenancy conyract in the first instance? SA

Expert:  JGM replied 3 years ago.
That's not something I can answer I'm afraid.