Here is a question to the blog clinic from Gerald (not his real name) who is a landlord
My tenant only fulfilled 7 months of a 12-month lease, citing personal problems for having to break the lease.
The property was left in an unfit state for reletting. Upon request, the tenant did return to clean up/remove some items but we still have repairs/expenses. They broke into a shed and kept a dog on the property without our knowledge.
We are holding a bond with the DPS. What is my legal position? I believe I am within my right to hold money from the bond for repairs but can I withhold money for loss of rent?
You need to read your tenancy agreement.
A tenancy deposit belongs to the tenant. A landlord does not have any general right to make deductions from it – the right solely depends on what is written and agreed in the tenancy agreement signed by the tenant.
- So if you do not have a tenancy agreement, you cannot make any deductions at all.
- Neither can you make any deductions if your tenancy agreement is silent on deposits and what you can do with them.
Most well-drafted tenancy agreements though will have a section about the deposit and a clause which sets out what you can make deductions for.
Generally, this will provide for the landlord to make deductions to cover the reasonable costs and expenses suffered by him as a result of the tenant breaching the terms of their tenancy agreement.
This will cover damage and breakages so you should be entitled to claim the reasonable cost of repair work and replacement of items damaged beyond repair – so long as you can show that the items were in good repair at the start of the tenancy.
Which is why a detailed inventory and schedule of condition is essential.
Deductions for rent
Failure to pay rent is a breach of the terms of the tenancy and will normally be something you can deduct from the deposit.
However, read your tenancy agreement. Sometimes they contain clauses saying that the deposit cannot be used for rent.
These clauses are intended to prevent the use of the deposit against rent during the tenancy. However, if they are not well drafted they can prevent the use of the deposit for rent after the tenancy has ended.
The clause that we use is:
You are not entitled to withhold payment of any rent or any other money due to us because you have paid a deposit.
However, if you have a clause which says that the deposit cannot be used for rent payments – you will not be able to use it for your rent arrears.