Letter before action

[Samski21]

Hi Dolks, I issued a letter before action to someone I was looking at renting a house from. I had paid £1000 deposit and was misled on the state of the property. No AST was ever signed, but the landlord only returned ~1 weeks rent.

trading standards already advised the 1000 deposit was unlawful as you can not take a holding deposit without an ast in place. There was no ast, and there was no gas, epc, electricity safety certs in place either at the time of the initially proposed date

I am clear that I am in a clear position to recover the funds but I did offer ADR. The response from the third party said ‘ We are willing to attempt mediation through an independent mediator of our choice at your expense and/or ADR to reach a satisfactory conclusion to this matter - but we must be clear this would not be an indication we accept culpability for your situation’.

tge amount is only £250 and ADR will cost more than that, so it is not reasonable nor proportionate. I do not think the third party saying they will attempt through a mediator of their choice or at our expense is fair.

[des8]

So what are you looking for?
Do you need some advice?

[Samski21]

Sorry I should of been clearer.

When it comes to ADR is the third party unreasonable in responding they are open to it but only at my cost and if they get to choose who? I don’t want to prejudice the case or the judges perception as it’s only ~£250 outstanding. But a matter of principle

[des8]

I agree their conditions are unreasonable, and would tell them that their uncooperative stance leaves you no choice but to immediately initiate court action.


If you do commence court action you will be offered the court's free mediation service (https://www.gov.uk/guidance/small-cl...iation-service)

[Samski21]

Thanks Des8, that was my thinking too.
I think the problem is this landlord thinks it’s the 80s where she can do and write what she wants.
She took a £1000 holding deposit off us to secure a house. We were only later informed by trading standards you can only ever take a holding deposit once an AST is in place and this can only be equivalent to one weeks rent - Tenants Fees Act 2019, Schedule 1 (3) not a months rent as she tried. On seeing the house we realised it was not fit and suitable for a family with children, and furthermore there was no AST properly drawn up or EPC, Gas Cert or EICR report, despite this she was pushing for us to sign and start paying on day 1.
At this point we informed her we were discontinuing and she kept 1 weeks payment back. This may have been fair had the house been ‘legally rent ready’ and had we paid the correct holding deposit on the first place. But she made a complete false representation to get us to commit a deposit without seeing the house, knowing we were in a predicament and needed a new house.
luckily we found one through our existing landlord, and reported the matter to trading standards who advised her on 2 or 3 things which clearly ‘poked the bear’ and now she’s being IMO silly and unreasonable in her response. My worry is she won’t have the cash to pay, as she shared the only reason she wanted a new tenant was to release equity and increase her mortgage.
i intend to request for redacted documentation confirming she has a buy to let mortgage- she won’t, which increases her dishonesty profiles

[des8]

My worry is she won’t have the cash to pay, as she shared the only reason she wanted a new tenant was to release equity and increase her mortgage.
i intend to request for redacted documentation confirming she has a buy to let mortgage- she won’t, which increases her dishonesty profiles

If she doesn't have the cash to pay there are other ways of eventually recovering any award made by the courts.
I wouldn't bother seeking documentation confirming she has a buy to let mortgage as it will not advance your claim and will only be a distraction

[Samski21]

Thanks Des8 that’s a totally fair point I hadn’t considered..

the other ridiculous response I got to my letter before action was

“I think it is also important you should be aware of a potential claim for defamation of character based on the conversations and texts between you and others regarding our actions and reflecting negatively on our good character as per my email of 25 July 2023. The Pre-action protocol is being considered by us in this regard whereby we will be seeking an immediate apology as part of the process of restoring our reputation as respected members of our local community.

Please also be aware should we not be able to resolve this matter directly or through ADR we will be charging you a fee of £285 each per hour for our time plus legal expenses including representation in court. The time we have spent on responding accurately and factually to your email to date is over 3 hours plus seeking legal advice. The total to date £805.”

My understanding is she cannot recover any costs or claim may for her defence. u less at best I’ve acted unreasonable, which I have not.

And the other text messages and deformation of character piece was messaging the person who took the house asking what deposit he had paid and asking if he had the same concerns. It’s an absolute defence that I can show that the comments I made were true re the state of the property, and in any case these were not statements made publically (Ifaik) so she’s barking up the wrong tree.

[des8]

I think they are warning you that if they proceed with a claim for defamation you would, if you lost, be hit with a large bill for their costs.
In defamation cases the loser pays.

Regarding your claim for return of your deposit, assuming it is allocated to the small claims track, you are correct regarding costs

As you have raised the matter of defamation (altho' that seems like a threat to frighten you to discontinue your claim) I'm tagging EXC for his comments

[EXC]

As you have raised the matter of defamation (altho' that seems like a threat to frighten you to discontinue your claim) I'm tagging EXC for his comments

I agree it looks that way and may well do so to a court. Litigating a defamation claim is a massive financial gamble, even more so if the statements were only made to one individual. Realistically I doubt it'll get any further than a threat.

Tagging islandgirl to see if she has any further thoughts on the deposit issue.

[islandgirl]

Landlord's can take a holding deposit well before an AST is created (happens to students all the time) but it can as you say only be 1 week's rent. This is the info from Shelter https://england.shelter.org.uk/housi...lding_deposits
Have you been paid the deposit back except £250? This is of course one week's rent. There are however only specific circumstances in which this can be retained. I would be straight to small claims court. The other side cannot claim any fees. If there is any confusion issue another letter before action and follow it through. Ignore all the noise about defamation.