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Help with tenancy deposit dispute

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gt94sss2
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Help with tenancy deposit dispute

#162331

Postby gt94sss2 » August 27th, 2018, 2:47 am

Hi all,

With apologies in advance for the length of this post..

I’d be grateful for some advice about how to handle a tenancy deposit dispute. In particular, what do I need to say or provide to the Dispute Resolution Service for the relevant tenancy scheme.

My ex-landlord is trying to charge me £170 for what I consider fair wear and tear to a sofa that can be brought new for £270 including free 2 man nationwide delivery (so built to a certain budget!) – does anyone have any ideas what the expected life of such an item is?

I believe he usually rents to (foreign) students but I don’t fit into this category and don’t appreciate someone trying(as I see it) to take advantage of me.

Background

1. I rented a furnished flat on 5 October 17 via a 10 month AST. I was due to move out in early August but the landlord and I agreed that I could stay for an extra week (until 12 August) as he had not found anyone at the scheduled end of my tenancy to replace me.

2. The landlord uses a large online estate agents to locate and reference check tenants for him. As such, I had originally viewed the flat when the previous tenant was still living there in September 17.

3. On moving in, several things were not as expected/previously agreed with the agents (i.e. marks on the wall I was told would be removed, the property was not professionally cleaned and the supplied sofa was damaged/end of life). The landlord was overseas at this time.

4. A check in inventory was done on 5 October 17 but I have never seen this report despite requesting to see it (but did meet the check in clerk on moving in who verbally confirmed the sofa was in a very poor state). The clerk also said she had also done the checkout report for the previous tenant.

5. I raised these issues with the agents/landlord and subsequently the flat was cleaned and some limited repainting occurred.

6. At this stage, the landlord unilaterally decided to arrange for a new inventory to be carried out dated 19 October while I was away on business.

The Sofa

7. As mentioned above, the original sofa also had issues (the leather was totally worn and it had tears in).

8. The landlord wanted to get it repaired but was told that it would take 3 weeks to fix and it was uneconomic. As such, I was offered a 2nd hand sofa that the landlord already had.

9. I accepted but the landlord eventually decided to buy a new one instead (I believe this was because it was logically easier to have a firm
deliver one rather than arrange for the other one to be moved).

10. The replacement sofa was delivered on 2/11/17. It was a faux leather sofa.

11. Between then and my moving out, the sofa developed 2 small areas (a couple of inches) where the thread/stitching joining the faux leather together had separated.

12. I believe this is fair wear and tear and I certainly did not abuse or mistreat the sofa.

13. When I handed my keys back, I mentioned the condition of the sofa to the landlord. He verbally suggested that he thought that the sofa cost £470 – I said that if that was the case he should see if he could see if it was covered by a guarantee

14. I subsequently asked for my deposit back but the landlord is claiming £170 :“When the tenant moved in I bought a brand new 3 seater leather sofa, this has cost me £340 , when he left the property there was extensive damage to the sofa, this include cracks on the leather, tears across the stitch line and areas of the sofa which felt uncomfortable and different to the rest, I contact the seller and tried to activate the guarantee however I been told it's void since it's not normal wear and tear and the sofa been abused by the tenant.

15. To clarify, when I left the flat, there were no ‘cracks on the leather’ - and when he says an area of the sofa felt different to the rest, that’s because all 18 Stone of me tended to sit on one side of the sofa (to watch TV) so there will be more wear and tear on one side (i.e. in the padding/cushioning)

16. While I have not seen the correspondence between the landlord and the firm where he brought the sofa, I have seen their response saying ‘by the looks of the sofa, your tenant has abused the sofa’ and that he would need to claim from me for the damage.

17. However, this firm undertook no physical inspection of the sofa and now I know who the sellers are, have also found out that media reports stating they were done by trading standards a few years ago for selling dangerous sofas and for ‘abusive behaviour towards customers’ – as such, I suspect they would say anything to avoid having to repair the sofa! I also do not know how guarantees/the Consumer Rights Act works in that the landlord is using the sofa in his buy to let business.

18. As said above, the firm is selling the same sofa new for £270 not £340.

Other factors

- I actually rented the flat as I had to relocate for work purposes – but I was away from the flat quite a lot travelling for work and/or to my permanent residence during the 10 months;
- There was no independent check-out of the condition of the flat (though from reading the tenancy agreement I would personally have expected one);
- there are no other deductions being claimed - I really did look after the flat; and
- I have seen no estimates or quotes of how much the sofa would cost to get fixed (only a few £ to correct the stiching I suspect)

The landlords view appears to be "because this sofa was delivered to you brand new and was bought only because you demanded the old sofa to be replaced , and since it was in use only by you, I don't see a reason why I should be liable for the cost of the repairs."

Grateful for any advice.

richlist
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Re: Help with tenancy deposit dispute

#162343

Postby richlist » August 27th, 2018, 7:52 am

That's a long post.....but in summary:

* There was a check in inventory......you didn't see it, sign it or agree it.
* There was no check out inventory.

I have little or no experience of deposit disputes but if the landlord hasn't met the dispute resolution minimum requirements i have every expectation that they will side with the tenant.

Good luck.

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Re: Help with tenancy deposit dispute

#162376

Postby gt94sss2 » August 27th, 2018, 11:05 am

Thanks for the reply - yes, it was a long post!

I guess my issue is that I am not denying that the sofa was replaced with a new one during the tenancy but that it was such a cheap one that its obviously suffered from more wear and tear (even if its relatively minor) than an expensive one would.. + the landlords claim for damages even if it was valid is way OTT

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Re: Help with tenancy deposit dispute

#162496

Postby modellingman » August 27th, 2018, 11:03 pm

Tenancy deposit protection is quite a minefield (particularly for landlords) and there are a number of questions relevant to navigating this minefield that your original post hasn't answered.

Was the deposit protected in a statutory deposit protection scheme?

If so, which one and is it a custodial scheme or an insurance based scheme?

Did you receive from the landlord or agent the Prescribed Information document identifying (amongst other things)the scheme in which your deposit is protected and the circumstances in which deductions may be made from your deposit? (NB This is not the same as a deposit protection certificate confirming simply that your deposit has been protected. The Prescribed Information document must be signed by the landlord/agent to be valid).

Is so, was it received within the statutory 30 days of paying your deposit to the landlord/agent? (If not you are in a very strong position both for the return of the deposit and a penalty payment from the landlord of between 1 and 3 times the deposit paid).

What does your tenancy agreement say about the deposit? (Both in terms of what may be properly deducted from your deposit and the timescales for the return of your deposit to you at the end of the tenancy).

Have you reached any agreement with your ex-landlord about the return of your deposit? (It should be possible to agree the return of the undisputed amount of deposit ie the deposit less the £170 at issue over the sofa)

Where did you hand your keys back to the landlord? Was it at the flat itself or was it elsewhere?

Dealing with the matter itself, I would not expect even a relatively cheap sofa to start coming undone at its seams in a period of 9 months. I am a landlord of nearly 20 years (mainly with student tenants) and based on my experience I don't buy the "fair wear and tear" argument. The more likely explanations are abusive use or poor manufacturing. The landlord is arguing tenant abuse and you might want to consider a poor manufacturing/fitness for purpose argument.

You do not have to agree or accept your landlord's arguments. All the deposit protection schemes operate an alternate dispute resolution (ADR) process in which a professional adjudicator bases a decision on the written evidence submitted by both the landlord and tenant. The mechanisms for initiating ADR differ between the schemes and in particular between custodial and insurance based schemes but AFAIK all the schemes provide the tenant with the right to initiate the ADR process.

To have any chance of success under ADR, your landlord's evidence will need to include: a receipt documenting the cost of the sofa (from your account, the landlord seems to have a fluid view of the actual cost) and, if you disagree with the landlord's claim about the state of the sofa at the end of the tenancy, documentary evidence to support his claim. There will also need to be a justification of the £170 claimed. This could come from a written estimate for the cost of repair or from an estimate of the shortening of its useful life. For example, if the landlord would normally expect a sofa of this type to last for 5 years, but because of its present condition he only expects it to last 3 years, then in effect he has lost 40% of the sofa's life and can therefore claim this proportion of the cost of the new sofa as his loss (so £136 if the sofa did indeed cost £340). At present it is not clear what the basis of the £170 claim is - under ADR a landlord cannot expect to successfully claim an arbitrary amount.

If you want to support a poor manufacturing claim then you might consider gathering press evidence of the poor behaviour of the sofa supplier.

If your landlord doesn't back down and you decide to initiate the ADR process, the Deposit Protection Service (one of the approved statutory scheme providers) has some very short and accessible ADR case studies which you might want to peruse. There is also a short article about how to think like an adjudicator on Property Tribes that you might find of interest.

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Re: Help with tenancy deposit dispute

#162502

Postby supremetwo » August 27th, 2018, 11:51 pm

gt94sss2 wrote:15. To clarify, when I left the flat, there were no ‘cracks on the leather’ - and when he says an area of the sofa felt different to the rest, that’s because all 18 Stone of me tended to sit on one side of the sofa (to watch TV) so there will be more wear and tear on one side (i.e. in the padding/cushioning)

18. As said above, the firm is selling the same sofa new for £270 not £340.

H'mm, I have seen sofas at the cheaper end of the market with a weight capacity several stone less, so I would not discuss this aspect with the landlord.

Can you find out the weight capacity?

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Re: Help with tenancy deposit dispute

#162610

Postby gt94sss2 » August 28th, 2018, 1:41 pm

supremetwo wrote:
gt94sss2 wrote:H'mm, I have seen sofas at the cheaper end of the market with a weight capacity several stone less, so I would not discuss this aspect with the landlord.

Can you find out the weight capacity?


The landlord purchased the sofa off an eBay seller - looking at the current advert for the same sofa now, I can't see any reference to weight capacity..

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Re: Help with tenancy deposit dispute

#162632

Postby chas49 » August 28th, 2018, 3:04 pm

gt94sss2 wrote:
supremetwo wrote:
gt94sss2 wrote:H'mm, I have seen sofas at the cheaper end of the market with a weight capacity several stone less, so I would not discuss this aspect with the landlord.

Can you find out the weight capacity?


The landlord purchased the sofa off an eBay seller - looking at the current advert for the same sofa now, I can't see any reference to weight capacity..


I agree that you probably don't want to raise the weight issue yourself. 18st is perhaps above average (maybe??) but certainly not in the realms of extreme. Without being personal, did the landlord meet you in person when you rented the property, or indeed when you complained about the old sofa? If so, he can hardly blame you if he bought a sofa which is only suitable for occasional use by a small person. Even if not, I don't think a sofa wearing out so quickly can be seen as reasonable, and the landlord would need to provide some evidence to show that you must have "abused" the sofa. Just saying, "the manufacturer says it's your fault" isn't really evidence IMHO.

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Re: Help with tenancy deposit dispute

#162675

Postby gt94sss2 » August 28th, 2018, 6:18 pm

chas49 wrote:Without being personal, did the landlord meet you in person when you rented the property, or indeed when you complained about the old sofa? If so, he can hardly blame you if he bought a sofa which is only suitable for occasional use by a small person. Even if not, I don't think a sofa wearing out so quickly can be seen as reasonable, and the landlord would need to provide some evidence to show that you must have "abused" the sofa. Just saying, "the manufacturer says it's your fault" isn't really evidence IMHO.


The landlord was overseas when I rented the property but did meet with me before confirming that work needed to be done to the property (including a replacement sofa)

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Re: Help with tenancy deposit dispute

#162694

Postby gt94sss2 » August 28th, 2018, 7:43 pm

modellingman wrote:Tenancy deposit protection is quite a minefield (particularly for landlords) and there are a number of questions relevant to navigating this minefield that your original post hasn't answered.


Many thanks for such a comprehensive answer. The case is going to go through the DPS ADR procedure hence my original posting here to know what evidence or records I need to provide as the tenant.

In response to your questions: The landlord uses Purplebricks to find and vet his tenants (but not to manage the properties). As such, one of their standard contract (which had the prescribed information attached) was used for the letting of the property and the deposit was lodged in the DPS custodial scheme who have now refunded me the balance of the deposit minus the disputed £170. The keys were handed back to the landlord at the flat itself.

The long(!) contract includes

Dealing with the Deposit
1. The following clauses set out:
a. what the Landlord will do with the Deposit monies paid by the Tenant under The Particulars.
b. what the Tenant can expect of the Landlord, or the Agent ,when the Landlord, deals with the Deposit;
c. the circumstances in which the Tenant may receive less than the sum paid to the Landlord, as a Deposit at the conclusion of the Tenancy; and
d. the circumstances in which other monies may be requested from the Tenant.
Deposit
2. The Landlord’s Agent shall place the Deposit with the Deposit Protection Service. This will be held by the service, and any interest earned kept by the DPS.
3. After the Tenancy the Landlord or Landlords Agent is entitled, with the written consent of the Landlord and the Tenant, to deduct from the sum held as the Deposit any monies referred to in Schedule 1, Clause 6 of this Agreement. If more than one such deduction is to be made by the Agent, monies will be deducted from the Deposit in the order listed in Schedule 4 clause 7.
4. The Landlord shall notify the Tenant in writing of any deduction to be made under this Agreement. That notice shall specify the amounts to be deducted and the reasons for any deductions to be made. No deduction will be made from the Deposit without the written consent of both parties.
5. After the end of the Tenancy the Landlord shall return the Deposit, except in case of dispute subject to any deductions made under the Agreement, within thirty days of the end of the Tenancy or any extension of it. If there is more than one Tenant, the Landlord may, with the written consent of the Tenant, return the Deposit by cheque to any one Tenant at his last known address.
6. If the amount of monies that the Landlord is entitled to deduct from the Deposit exceeds the amount held as the Deposit, the Landlord may require the Tenant to pay that additional sum to the Landlord within 14 days of the Tenant receiving that request in writing.
7. The Landlord and the Tenant may deduct monies from the Deposit to compensate the Landlord for losses caused for any or all of the following reasons:
a. any damage to the Premises and Fixtures and Fittings caused by the Tenant or arising from any breach of the Terms of this Agreement by the Tenant;
b. any damage caused or cleaning required due to pets, animals, reptiles, birds, or fish occupying the Premises (whether or not the Landlord consented to its presence);
c. any sum repayable by the Landlord to the local authority where housing benefit has been paid direct to the Landlord, by the local authority;
d. any other breach by the Tenant of the Terms of this Agreement;
e. any instalment of the Rent which is due but remains unpaid at the end of the Tenancy;
f. any unpaid account or charge for water, electricity or gas or other fuels used by the Tenant in the Premises;
g. any unpaid council tax;
h. any unpaid telephone or broadband charges.
8. The Tenant shall not be entitled to withhold the payment of any instalment of Rent or any other monies payable under this Agreement on the ground that the Landlord holds the Deposit or any part of it.
9. In the event of a dispute, both parties agree to follow the DPS disputes procedure and to be bound by its
decision.


modellingman wrote:Dealing with the matter itself, I would not expect even a relatively cheap sofa to start coming undone at its seams in a period of 9 months. I am a landlord of nearly 20 years (mainly with student tenants) and based on my experience I don't buy the "fair wear and tear" argument. The more likely explanations are abusive use or poor manufacturing. The landlord is arguing tenant abuse and you might want to consider a poor manufacturing/fitness for purpose argument.


Yes, thats one of the reasons I had suggested the landlord contact the seller as I was surprised the stiching had started to come apart (even if it only a couple of inches) - I know its not abusive use and I am not aware of any 'professional inspection' to quantify any damages. So poor manufacturing/fitness for use is likely to be the way to go - especially as the firm concerned has been done by trading standards in the past

I note that the lease also states:

99. To agree that the check-in report of the Inventory and Schedule of Condition given to the Tenant at the start of the Tenancy will be regarded as a true record of the condition of the Property and will be used to assess all damage for check-out purposes at the end of the Tenancy, if a signed copy with any amendments or alterations is not returned to the Landlord within seven days of its receipt by the Tenant.
100. To allow access for the check of the Inventory and Schedule of Condition at the termination or earlier ending of the Tenancy following receipt of reasonable notice from the Landlord.
101. To equally share with the Landlord the cost (if any) of checking the Inventory and Schedule of Condition at the start of the Tenancy.
102. To pay the additional cost incurred by the Landlord or the inventory clerk in making and attending a second appointment to check the Inventory and Schedule of Condition at the end of the Tenancy if the Tenant or his agent fails to attend a mutually agreed initial appointment.
103. To agree that if either the Tenant or his agent does not attend a second appointment to check the Inventory and Schedule of Condition, having also failed to attend the first appointment, that a check out report will be prepared at the second appointment


As I mentioned earlier:

- I was also not provided with the original check in inventory but a second one done 2 weeks after I had moved in (and after the landlord had fixed some of the issues I raised about the condition of the flat on moving in; and
- there has been no independent 'check out' inventory which seems contrary to my reading of 99-103 above;

The new sofa is not on the either inventory report since it was replaced afterwards (it was suggested verbally to me by the first inventory clerk that I ask for a replacement given its condition. Even the landlord accepted it was uneconomic/would take 3 weeks to repair and the 2nd inventory described the original sofa as "Signs of age and wear to the seating area. Rips and discolouration to the seating area"

I don't what the legality of changing an inventory report is after a tenant has moved in? - or as the landlord put it:

I didn't get the check in report from when you moved in, its with purple bricks and was relevant to when you moved in.

since there were modifications (things that were taken of the flat for your request), decided to reissue an inventory which will be the new guideline in case of a dispute to when you move out.

when the new sofa will arrive we will add it to the inventory instead of the old one, then I will ask you to sign the inventory and I forward it to purple bricks.


All, I really asked to have taken out of the flat was the provided TV as I had my own..

(Apols, I realise as I write this case the background complicates things - though all the landlord is disputing is the sofa, everything else in the flat was fine or even better in that I paid for a professional clean, which wasn't done when originally moving in)

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Re: Help with tenancy deposit dispute

#163047

Postby modellingman » August 30th, 2018, 12:04 am

gt94sss2 wrote: The case is going to go through the DPS ADR procedure hence my original posting here to know what evidence or records I need to provide as the tenant.


I hadn't fully picked up on the comment in your original post about seeking advice on what to say or provide to the Dispute Resolution service, so my previous post included a bit more than was necessary. However, the questions related to the tenancy agreement and prescribed information were relevant because: the ADR adjudicator will look to see if the correct legal process has been followed by the landlord in taking a tenant's deposit. The adjudicator will also look at the tenancy agreement to determine whether or not the deduction being claimed is actually allowed under the tenancy agreement and whether or not any processes set out in the tenancy agreement for dealing with the deposit have been properly followed.

So dealing with the tenancy agreement: it would appear from the extracts of the agreement that you have posted that the landlord will be relying on clause 7a of the tenancy agreement as justification for the deduction related to the sofa.

However, the landlord is also bound by clause 99 (which I assume is actually one of the Tenant's obligations) in that you cannot agree to a check-in report that you have not been provided with. So there is an implicit obligation in this clause on the landlord to provide you with such a document. Which brings me to

gt94sss2 wrote:I don't [know] what the legality of changing an inventory report is after a tenant has moved in


In general there is no problem with a landlord updating an inventory or check-in report after a tenant has moved in, providing that it issued on the same terms governing such reports set out in the tenancy agreement. In your case this would be that you are given a copy of the updated document and 7 days to review it and, if appropriate, to express disagreement with it through alterations and amendments. You asked for and got some improvements made in the first weeks of your tenancy so it is not unreasonable for the landlord to provide a an inventory reflecting the changes made.The whole of purpose of inventories/check-in reports is to provide a record, agreed between landlord and tenant, of the contents and condition at the start of the tenancy which provides a comparator for use at the end of the tenancy. To my mind, the correct comparator to use is the post-improvements version. I suspect an adjudicator would also take the same view.

I think there are two lines of argument you could consider pursuing in your evidence to the DPS.

The first, which I consider to be the weaker one, is based on the landlord failing to follow the processes set out in or implied by the tenancy agreement.

In essence, the tenancy agreement appears to say/imply (and I'm basing this on the extracts you provided plus a little bit of reading between the lines): there will be an independent check-in report and an independent check-out report; the tenant will be given a copy of the check-in report and will have 7 days to raise objections; if none are received the tenant's agreement will be deemed; the tenant should be present for the check-out and will have the opportunity to influence the report; if the tenant is absent for the check-out report they will lose their opportunity to influence its content; the basis of deductions from the deposit for condition reasons will be a comparison between the check-in and check-out reports.

The first part of argument is that no proper check-in report was produced. The reasoning is: the 19 October report was never updated for the new sofa; as a result you were not, contrary to the landlord's stated intention, given the opportunity to sign it (and presumably amend and alter it). The second (and stronger) part of the argument is that no independent check-out report was produced contrary to the tenancy agreement. In the absence of either a valid check-in report or a valid check-out, the landlord has no basis for comparing the (post-improvements) start of tenancy condition with that at the end and therefore no basis in the tenancy agreement for making deductions from the deposit in accordance with clause 7a. You get two for the price of one in by claiming both reports were not validly provided. For this argument to have any reasonable chance of success you'll need to be very familiar (as I suspect you are) with the aspects of the tenancy agreement relating to the deposit. If you can understand it from a landlord's perspective then you'll really know how to use it to your advantage!

The second argument simply focuses on the sofa. Use your research about the sellers and the price to state that it was a cheap and nasty sofa, of dubious quality and subject to nothing more than normal use. It wasn't up to the job and started to come apart on one seam. If you have any evidence about the design weight of the sofa (as stated by another poster) then use that. Even if you don't, if there is some British Standard relating to maximum design weights(*), then bring that into your argument (eg I suspect that the quality only matched to the x standard whereas the landlord should have been clearly aware I am obviously well in excess of x.) In addition, rubbish the landlord's claim for £170 as having no sound basis based on either costs of repair or loss of useful life.

The onus will be on the landlord to justify his claim that you damaged the sofa by behaving in an un-tenant like manner and that the £170 represents the resulting loss he has suffered as a result. Your second argument should be aimed at sowing doubt in the adjudicator's mind, bearing in mind that the level of proof required is the civil standard of "balance of probabilities."

The adjudicator will ignore any arguments you might put forward about leaving the flat in a cleaner state than when you moved. Unless there are claims being made on the deposit because of a lack of cleanliness at the end of the tenancy, any such arguments are simply not relevant to the adjudicator's task of determining the validity of the landlord's claim.

If you have not done so, I would definitely recommend looking through some of the adjudication case studies on the DPS website. It will give you some insights. Also seek out the advice to landlords on how to present evidence for ADR - what works for one side will work equally for the other.


(*) A quick search on Google threw up this page from DFS. It is not clear from it whether there really is a British Standard for Sofas or whether its a BS certified quality system for manufacturing (such as ISO 9000) which is not quite the same thing.

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Re: Help with tenancy deposit dispute

#163052

Postby modellingman » August 30th, 2018, 12:33 am

I would also consider Paragraphs 20-23 of the DPS Custodial Scheme Terms and Conditions to be essential reading if you have not already done so. PDF version probably easier on the eye than the webpage version. These Ts and Cs (actually the preceding version) should also have formed part of your Prescribed Information document.

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Re: Help with tenancy deposit dispute

#163906

Postby Infrasonic » September 3rd, 2018, 1:13 pm

I've skim read the thread so apologies if I'm duplicating any info.

TDS DRS tribunals tend to favour tenants in general, to put off chancer landlords. I've been through one as a LL and lost, and my claim was legitimate with date stamped photographic evidence...

For a LL to succeed they need to have good documentary evidence for both before and after, so clear date stamped photographs, inventory lists et al.
If they are relying on agents then quite often the standard of evidence produced is severely lacking, they tend to put in the minimum effort rather than maximum.


In this particular case I would ask the LL to provide in situ photographs of the 'new' sofa on the day it was delivered and after photographs to 'prove' that there is damage. I know there is no dispute that the sofa is now damaged, but it hasn't been proved that the delivery men didn't damage or weaken it in transit or delivery, plus the high potential for substandard manufacturing clouds the waters even further.

The more doubt you raise the stronger your case, and although I think the LL does have a genuine grievance it's not really with you as the ex-tenant, more with the ebay seller/manufacturer.

The 18 stone issue might be worth checking up on, it's possible that might favour the LL's argument, but I'd be surprised if it has serious traction in the PC world we now live in...

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Re: Help with tenancy deposit dispute

#164525

Postby gt94sss2 » September 5th, 2018, 11:17 pm

Infrasonic wrote:.. and although I think the LL does have a genuine grievance it's not really with you as the ex-tenant, more with the ebay seller/manufacturer.


Yes, that's my view as well.

Many thanks for everyone's advice and assistance. Have now submitted my side to the DPS and will now have to await their decision.


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