One very common issue that tenants in the private rented sector come across is illegal withholding of deposits. The following is our guide explaining what to do, how to prevent it from happening and how to claim it back!
What is a deposit?
A deposit is a form of a guarantee for the landlord or letting agency in case that a tenant:
- causes a damage to the property
- leaves the property in a poor (dirty) condition
- leaves unpaid bills for which he/she is responsible
- leaves unpaid rent.
A deposit is a sum of money that you have to pay to your landlord or a letting agency on most occasions when moving into a privately rented property. This is usually the equivalent of one month’s rent, but this sum might often be higher, but should not be higher than the equivalent of 2 months’ rent. InScotland, deposits are still paid directly to your landlord or a letting agent.
How can you prevent a situation where your deposit will be withheld?
It is important to know the circumstances a deposit can be legally withheld. This can happen if you have left the flat in a poor or damaged condition, or if items listed in the inventory are missing. The landlord or the agency could also keep the deposit or a part of it in case you left unpaid bills that you were responsible for or have rent arrears.
Even though your landlord has decided that withholding of your deposit is the right action, they have to provide you with breakdowns of the costs that you are supposedly responsible for. You can agree with their decision or you can object to it.
In order to make sure you get your deposit back at the end of the tenancy, we suggest you follow these steps.
Before you move in
Make sure you read your tenancy agreement (lease) before you move into the property, so you know what you are signing (including yours and your landlord’s responsibilities towards cleaning, payment of bills and dealing with repairs).
Make sure that you get hold of the inventory before or at the time you move in and double check that it matches the contents of the property and their actual state. In case your landlord does not provide you with an inventory you can create one by yourself and have it signed by an independent witness who doesn’t live at the same address, but ideally have it signed by your landlord. Also back it up with some photographs.
Get a receipt for paying the deposit!!!
While you live in the property
Make sure you keep the property in a good condition.
Always check with your landlord/agency about any broken or damaged objects – it might work out cheaper to replace them yourself in case you have caused damage, but it is important to check with the landlord/agency first – also keep evidence of your correspondence and their decision – do it in writing!
Make sure you know what repairs are the responsibility of your landlord – this should be stated in your tenancy agreement (or check in our section about repairs).
If you decide to move out of the property, always follow the conditions in your tenancy agreement (lease). Your lease might require you to give a notice to the landlord/agency – you might want to double check with them on how long this is. Always do this well in advance and in writing.
When you move out
Clean the property thoroughly. If the landlord/agency has to arrange for cleaners, they will charge you for this. If it is clean, there should be no need to hire cleaners.
Take photos of the property to prove it was left in a good state.
Also make sure everything in the property matches the inventory and all the damages (if any) have been repaired and dealt with, with the consent of the landlord/agency.
Remove all your belongings from the property and return the keys.
Arrange your landlord to inspect the property on the day you move out and be present when they do so.
Make sure you have paid your rent correctly and you have paid all the bills you are responsible for. Always keep all the receipts!
In general, always keep all written correspondence between you and your landlord/letting agent!!
Once you move out, your landlord/agency might need some time to check the property and return the deposit to you. Check your lease – it should state after how long and in what form your deposit will be returned to you.
If you believe you have followed all these steps and your deposit has been illegally withheld, carry on reading!
Do you think your landlord/agency has withheld your deposit illegally?
What to do now?
Examples of illegal withholding of deposit might be:
- landlord/agency considering fair wear and tear to the property as a damage
- landlord/agency claiming you have damaged the property, although you haven’t
- landlord/agency simply won’t return your deposit, without any reason or justification
Before you take this any further, try negotiating. Your landlord/ agency need to provide you with breakdowns of the costs of services for which they are claiming your deposit. If you find this unreasonable, you can request copies of receipts for repairs carried out etc. If communication in general is very difficult, they don’t reply or ignore you, or you believe they haven’t acted fairly, you can give them a deadline before you take the action in the Small Claims court. Simply write a letter to them to notify them of your intention of raising a Small Claim. Although it might feel like an extra work for you, it is not that difficult to raise a Small Claim in Scottish Courts.
Raising a Small Claim action
If you haven’t reached an agreement with your landlord/agency and you believe they have unjustly withheld your deposit, raising an action in Small Claims court might be the only way forward. Small claims are actions raised in a Sheriff court where the value of the claim is £3000 or less.
Although it might seem time-consuming, it is not that difficult in the end. There is a very clear guidance on the Scottish Courts website on how to proceed.
The only thing you need to do is to fill in the Summons (there is a form under the link: forms.
(You will need to use a different forms depending on whether the defender is an individual or if they are a company.)
You need to submit the form to the relevant court (usually the one closest to where you live) according to the guidance provided by the Scottish Courts and wait for the reply which can take several weeks (although it is your responsibility to check whether the defender has made a response to the claim.) The defender may admit the liability for the claim, dispute the claim or also dispute and raise a counterclaim. Details on these are explained in the Scottish Courts’ guidance notes.
There are some fees to be paid when you want to raise a Small Claim. These and other expenses will later be awarded to the party which succeeds in the case in court. There is a limit on the amount which can be awarded. See the guidance notes for more information.
You can also apply for an exemption from paying the fees. Check out the fees section on the Scottish Courts website.
The procedure might take several weeks if the defender admits liability. If it proceeds to the court, it might take up to several months.
EPTAG believes that it is worth and important to undertake this step, not just for the several hundreds of pounds that you might get back, but mainly so that justice can be done!
Any bright light for the future? Scottish government is introducing new tenancy deposit protection schemes!
It is common practice inEngland, that deposits do not go directly to the landlord or a letting agent, but to a third party. This has proved to be more efficient and protective towards both tenants and landlords/agencies. This should shortly become a common practice inScotlandtoo and hopefully will help to resolve common issues of unfair withholding of deposits by landlords and letting agents.
To read more on the schemes, visit Shelter’s website.