My landlord wants to withhold part of the deposit: can he?

Property Clinic: Your questions answered

‘Landlord  planning on deducting a fairly significant amount from our deposits’. Image: iStock

‘Landlord planning on deducting a fairly significant amount from our deposits’. Image: iStock

 

I am living in a shared house with four others in Cork. I moved into a room and paid a deposit to the person who I took over the room from, but never signed a contract or met the landlord. The landlord seemed fine with this arrangement and I have paid my rent directly into his account over the past six months. Now that we are going to move out, the landlord is planning on deducting a fairly significant amount from our deposits for what seems like mostly wear and tear to me (the landlord has not maintained the property except for electrical or plumbing issues). Of the three other tenants, one has lived in the apartment for four years and the other two have been there for two years and 1½ years. What rights to I have, if any?

Your situation sounds like a number of arrangements that occur in the residential letting market in Ireland. It is most prevalent in houses around colleges close to campus but not limited to it. This arrangement where you paid a deposit to the outgoing tenant whose place you were taking; did you get a receipt from that tenant and/or was this agreement conveyed to the landlord? In order to answer this question as best I can and with limited information, I am going to assume that this change of tenant and method of deposit payment was agreed with the landlord.

If you think the landlord is just trying it on, then collectively you would need to go to the RTB

First of all, you ask about your rights. In essence, as a replacement tenant with the consent of the landlord – who could not have unreasonably withheld that consent for the changeover – you effectively inherited the security of tenure of the old tenant and this also extends into the landlords’ and tenants’ obligations that are also set out in the Residential Tenancies Act 2004. Therefore, the legislation now treats you as the “tenant” and deposit retention, wear and tear disputes can be referred to the Residential Tenancies Board for resolution. Before you go rushing to do that, there are a number of questions you need to ask yourself and/or the landlord:

Does the landlord have photographic evidence to show what condition the property was in before this tenancy came into existence? Remember, since you inherit the tenancy you also take on the responsibility of keeping the place clean and tidy and not only that, you take on potential exposure of excessive wear and tear of the previous tenant. There is also a joint responsibility with the other three tenants, not just for your bedroom, but the whole apartment. You should also ask your landlord to provide you with quotes and/or receipts of work, furniture, fixtures and fittings replacements, given that the landlord believes he has a justifiable position to withhold the portion of deposit indicated.

If the landlord can provide all the above then yes, the landlord would have a strong case for “excessive wear and tear or damage” as he has given you proper “evidence” of same, so if you did go to the RTB for “Deposit Retention” you would probably not win your case.

If you think the landlord is just trying it on, then collectively you would need to go to the RTB and lodge your case, but remember, there will be a burden of proof on both you and the landlord to prove your position so don’t go into the adjudication unprepared.

Finally, you also mention that the landlord has not maintained the property except for electrical and plumbing issues. Again, without knowing the full extent of this landlord and tenant relationship it is hard to comment on this statement, but in many respects in an apartment that may be the only maintenance issues to be addressed, so just because these have been the only call-outs, it does not pertain to failure of the landlord’s obligations.

In saying that, if there are serious matters that the landlord was notified about such as damp, leaks, etc, over and above the other call-outs then you may have a case for failure of the landlord’s obligations in the RTB too. Again, make sure you have hard evidence of this and don’t just lodge a vexatious and frivolous claim into the RTB as this just wastes your time, the landlord’s time but more importantly clogs up the already overwhelmed RTB dispute resolution system.

Marcus O’Connor is a chartered surveyor and a member of the SCSI. He is also a former RTB Adjudicator.

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