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028 9024 5640: Housing & Debt Helpline for Northern Ireland

Deposit disputes where tenant owes rent

Deposit protection was introduced in Northern Ireland in 2013 with the stated intention of providing "assurances for tenants and protection for landlords helping to minimise long drawn out legal proceedings and disputes".

Tenants who feel that a landlord has unfairly kept their deposits can now request that an independent adjudicator look at the facts of the case before deciding whether or not a landlord has any justifiable claim on the tenant's money.  However, certain tenants may need to pursue their dispute through Small Claims Court, rather than using the deposit scheme's dispute resolution mechanism.  Where a tenant has withheld rent, and believes s/he was justified in doing so because the landlord failed to adhere to his or her legal obligations, the tenant should attempt to recover the deposit money through the old system, rather than relying on the dispute scheme

Withholding rent

Tenants are not advised to withhold rent; it can lead to eviction and landlords will often recoup any money owed from the deposit.  However, some tenants will have either withheld rent to try to force a landlord to carry out repairs or used their rent to cover the costs of essential repairs for which they believe the landlord was responsible.  

If this has happened, the landlord will often deduct whatever rent is owed from the tenant's deposit.  However, if the tenant then asks the adjudicator to investigate this deduction, the adjudicator will have to allow the landlord to keep this money as the tenant has failed to observe one of his/her basic contractual obligations; payment of rent. 

The adjudicator will not be able to consider the tenant's reasons for failing to pay rent and cannot make a ruling based on whether or not the tenant is entitled to "compensation" because the tenant alleges that the landlord has failed to carry out repairs or otherwise provided a "poor" service.   Tenants who have not paid all the rent due under the terms of the contract and who believe they are justified in doing so can choose to try to recover their deposit through Small Claims Court, rather than using the deposit dispute resolution service. 

Recovering deposits through Small Claims Court

Tenants in Northern Ireland can choose to have their deposit dispute case heard in small claims court and not use the dispute resolution mechanism. If tenants choose to go through court process the deposit is released to the landlord as the proposal is put forward.  Landlords, however, must agree to use the dispute resolution mechanism if the tenant has chosen this route to solve the dispute.

The courts will want to know why the tenant has chosen not to use the deposit dispute mechanism, particularly as one of the intentions of this scheme was to reduce the workload on the courts, so it will be important that the tenant present their case, including their justification for non-payment of rent, fully in the court papers.  The judge must start from the position that the tenant owes the rent, so the tenant will have to present a strong case in order to convince the judge that he or she was justified in failing to pay the rent.  The tenant will be required to supply strong evidence to support his argument and there is no guarantee that a judge will find in the tenant's favour. 

Helping tenants to resolve deposit disputes

If you have limited experience with supporting clients at Small Claims Court or taking cases on behalf of your clients, you may be interested in attending our upcoming seminar, Using Small Claims Court: What you need to know. 

Advisers need to know how the adjudicators who are tasked with investigating disputes over protected deposits come to a decision.  Gain valuable insight into the factors that influence the adjudicator's decision at our upcoming half-day course Adjudicating Tenancy Deposit Disputes.

 

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Private Tenancies, Practical tips
This article was written on 16 March 2015. It should not be relied on as a statement of the current law or policy position. For help with housing issues please contact our helpline on 028 9024 5640 or use our online chat service at www.housingadviceNI.org.