Would you have given back this deposit or expected it back?

[TheOtherSideOfNo]

NC as this is quite outing.

If you were a landlord and you rented a studio flat (within a house that you own) to a tenant with a deposit of circa £700 I'd like to know if you'd have given it back.

The key parts of the contract state that 3 months notice must be given if the tenant intends to leave and the tenant is not to smoke or damage the appliances.

The tenant smoked throughout their 2 year residency and 3 months prior to the end of the contract (August 2014) requested an extension to January 2015. The landlord e-mailed the tenant in January to ask if they'd be extending their stay and the tenant said no, thus no notice such period was given.

The landlord then had to spend money on getting rid of the smell of smoke but there was no damage to the studio.

Would you under these circumstances have given back all or part of the deposit as a landlord or expected it back as a tenant?

Yes, because the contract can't override their statutory rights.

I don't think you can keep anything back regarding notice, as it was agreed that January 2015 would be the final month, wasn't it?

With regard to smoking, I would think any reasonable costs eg to get a cleaner in, to repaint, to have carpets replaced if the smell doesn't go, to have any furniture replaced etc could be claimed. I doubt there would be much left after that.

As a tenant I wouldn't expect all of it back.

I would think the landlord would deduct for 'smoke damage' only. But how much I don't know.

Not regards to the date as you agreed the extension. But wrt to the smoking get the place cleaned, painted and refurbished where necessary and take the lot out of their deposit. Take photos of any yellow stained walls or ceilings if you can though.

If the tenant is not meant to smoke why wasn't this picked up prior to them leaving 2 years later? Was there no inspection at any point? I think if there was an inspection and no comment made as a tenant I would expect my deposit back. ..

If it had to be redecorated/carpets washed, due to smoking, then the cost of that should be deducted from the deposit, as smoking was not allowed.

If they extended the tenancy, it should have been made clear that they would be leaving at that point, but the landlord should have clarified that, so a difficult one to consider.

Have you not been in for 2 years! Surely someone would stop them the first week if they saw them smoking in there?

Assuming not then perhaps charge half for the smoke damage if it did cost £350 to put right the smoke damage.

This isn't a matter of opinion, go look up the actual legal rules for your country regarding the retention of deposits. It's not something to be decided by AIBU.

Can you tell someone not to smoke in their own home? They are going to be liable for damage it causes but isn't it thier own business what they do?

3 months notice to quit before the end of the tenancy, surely? So, tenancy finished in Jan, since no notice to quit before then.
Smoking should have been picked up on an inspection, and if it was that much of aa issue, why was tenancy extended?
I'd expect some deduction for cleaning of smoke, but I'd also have wanted my deposit back well before now if the tenancy ended 10/11 months ago.

According to Property Hawk (if I've read it right) it would be hard to prove that redecorating was needed purely because of the smoking so it would be unlikely that you would succeed in withholding deposit for it.

Legally a landlord can only expect 1 month's notice but must give 2 months'.

You are obliged to register the deposit with one of the deposit protection schemes (eg The Tenancy Deposit Scheme). This is to protect both sides in the event of a dispute since the tenant can be sure that the landlord won't just keep all the money for spurious reasons, and the landlord can benefit from mediation if the tenant doesn't agree to the deductions.

It sounds like you have breached this requirement so if you do make deductions and the tenant disagrees, then they could make life difficult for you.

I think therefore you will have to hand the whole lot back if you can't reach agreement with the tenant, as theres a risk of them escalating this and it being revealed you didn't register the deposit.

It's also worth considering that the landlord could be perceived as being unreasonable from the start (and therefore at a disadvantage legally) by putting the 3 months' notice requirement in the contract in the first place.

Did you protect the deposit with one of the government approved schemes?

If you didn't, I believe the tenant can claim 3 x the original deposit back from you*

*I'm prepared to be corrected on this by the way - my knowledge in this area is a bit out of date!

Was the deposit correctly registered in a tenancy deposit scheme? If it was, then it is the auditors of the scheme who would make this decision - the landlord would apply to have some money deducted (proving costs) and the scheme would make the final decision and refund any remaining deposit back to the client.

If the deposit is not protected, then the landlord is on dodgy ground and the tenant could sue.

If you're a landlord you should be a bit more informed about your obligations and rights relating to deposits
If you incurred costs cleaning the flat and this can be evidenced, you can apply to be reimbursed. Notice periods have nothing to do with deposits.

3 months notice must be given if the tenant intends to leave

This isn't legally enforceable

clearly adequate notice has been given as the extension was very specific.

if landlord knew the tenant was smoking though out I think there is an argument that the landlord condoned the smoking & varied the lease on that point.

So unless there was specific damage to be repaired, or LL didn't know about smoking (but otherwise how would they know the tenant smoked throughout), it sounds as though all there is is general wear and tear - so no deductions should be made.

Any deposit should be held by a neutral body, not the landlord and any LL not setting this up will be in difficulties and I would just return all the deposit to avoid further hassle.

Three months notice is extremely unusual for a residential tenant to have to give. One month is the norm. I still think you should use the deposit money to pay for getting rid of the smoke smell out of everything, but the three months makes you sound like a very difficult landlord. As an experienced tenant who has rented lots of places, I would never agree to move in in the first place with those kinds of conditions on the lease.

england/wales, assuming the studio was fully independent and no facilities shared with the landlord.

1 month's notice from tenant. Nothing else enforceable.

property comes back as it was rented, LESS wear and tear. The complete redecorate and full clean that will be needed for smoking is not wear and tear.

raise a dispute with the deposit scheme. No protected deposit, no dispute.

We had a similar situation where our tenants smoked when it was in the contract not to.

Our deposit was held through a deposit scheme, so the decision as to whether any damage was wear & tear or caused by the tenant was decided by an independent evaluator at the exit survey.
We attended the exit survey (surprisingly the tenant did not!) and all the cigarette burns (& massive red wine stains!) on the carpets, were noted and we were compensated out of their deposit for the replacement or cleaning of damaged items. Unless you can prove with receipts that you had to pay for cleaning for smoke damage then I don't think you could claim. Equally you should have registered the deposit through a specific scheme, which is a legal requirement now.

If I was the tenant I wouldn't expect to be able to get any of the deposit back purely because of the smoking in the property.