Tenant Rights - Landlord Withholding deposit

I have a problem.  I moved to Nerja in March this year, and I found what I thought was a suitable rental property.  I paid €1800 (month and a half rent) as a deposit and moved in on the 10th of March 2011.

Come May my pregnant fiancee noticed mold spores growing in the room that we put our then 15 month old son in, and all of his soft toys and a brand new pram were covered in a black fungus. 

We contact our estate agent, and they said that the landlord would send someone round to drain the septic tank!! I'm not quite sure what that has to do with the mold, but we asked the landlord if the problem persisted whether she would release us from the contract, as it is not safe for my pregnant partner nor my child. 

Her reply was "I'll speak to my lawyer" and a few days later she simply said "NO"

We carried on paying our €1200 a month rent, and then around the 14th of July we started dropping like flies with an illness.  We went to the doctors and our son was diagnosed with gastroentertis, a common cause of which is water contamination.  And as we'd not eaten the same things for the last few days it was the only possibly cause for all 3 of us becoming seriously ill.  I've personally not experienced pain like that before.

We switched to bottled water and we were all better by the around the 23rd of July. At this stage, we didn't think the landlord was to blame, we figured it was the mains supply.

Then on Thursday the 28th of July whilst my partner was having a shower,  we noticed that the warm water was coming up through the overflow holes in the floor. 

I called the estate agents and they said that they would call the landlord.... we heard nothing.

The following day it happend again, so I called the estate agent again.  This time the estate agent said "I'll call the landlord THIS time" leaving me to think, did you not call her yesterday?

The estate agent called back to say that the landlord would send someone round, but she wasn't sure when this would be.

Saturday morning... 2 days after I first called about the problem things got REALLY bad.... the house flooded with feaces and other elements of raw sewage.  It come through the plug holes in both bathrooms as well as the bidets, and it wiped out a small stockpile of new born nappies we've been buying every week for the arrival of number 2 (no pun intended) in October, as well as flooding in to the hall way and the master bedroom soaking a pile of clothes in feaces.

Not nice

But as it was a Saturday the estate agents were closed, so we spoke to the gardener who was watering the garden at the time of the incident (and most likely reponsible by the way) and asked him to call the landlord to sort it out, and as the landlord insists on an extra €100 a month on top of rent to maintain the garden and pool - the gardener is of course in direct contact with our landlord.

We said that we expected the mess to be cleaned up at the landlords expense, as this we had provided plenty of notice to avoid the problem. 

The landlord agreed, and soon after a couple of people turned up for the cleaning operation, so we took our son out away from the house for the day as it was too disgusting to stay there.  

When we came back, there was still feaces in one of the bidets and there was dried toilet paper in the garden where they had just slung the sewage they had mopped up on the lawn.... about 3 meters from my sons paddling pool, and about 4 meters from the patio doors, and the kitchen stunk of sewage (and still does nearly a week on) most likely poo backed up behind the washing machine.

We decided that with a new baby on the way next month, and another that can open doors that it is not safe to remain at the house, and we demanded our deposit back.  I spoke to the estate agents, and they said that the landlord would give us back only €1200 and that she would release us from the contract.  I told them that as this is the second time it's happened, that we have to leave, but I wanted my full €1800 back. 

The estate agents told spoke to the landlord who just didn't care by all accounts and asked for my lawyer to call her lawyer!! I admit, I lost my rag with the agents and now they have said that they won't help, and that I have to deal with her direct.

So now I'm paying a translator to mediate, but we've secured another property that we are moving in to on Wednesday the 10th of August as that is the date we are paid up to.

Now the landlords lawyer has sent me this email below:-

Buenos días, indicarle que he hablado con la propiedad, no tiene inconveniente en que abandone usted la vivienda el próximo miércoles día 10 de Agosto, si bien ante la imposibilidad de poder alquilar el inmueble en el corriente mes de Agosto, mejor mes del año, habrá usted de abonar la mensualidad de este mes y se le devolverá la fianza si efectivamente la vivienda está, como usted dice, en perfectas condiciones. Quedo pendiente de su conformidad para poder quedar el próximo día 10 a la hora que fijemos. Un saludo.

Basically telling me that I must pay for another month... and only IF they find people to rent the house in August will they return my deposit!! 

They must be having a laugh, this can't be legal.  But as I've only been here 5 months do I not have any rights??  I've not replied to the email that they have sent me, because I have ran out of money, I've just shelled out €1750 on a new place to rent, €200 on removal costs and €100 on a translator.... I need my deposit back, I have a baby on the way in a few weeks and it's not like we haven't been reasonable, I've paid rent through all of the other problems on time despite the fact it's cost us hundreds on damaged personal belongings....

Can anyone help my family?!

Sounds like you have had a real nightmare with this.

Do you have a copy of the contract that you signed originally?  Can you scan it in?

I've been looking at several rental contract models recently and want to see if yours has the necessary clauses in.

Let me know and I'll tell you where to email it to us.

Justin

so sorry to hear about your experiences

it sounds like you have had a terrible time.

unfortunately from my experience when someone has your money in spain its hard getting it back.

the only way in my opinion that a situation like this could have worked out is to delay paying rent by telling them that your wages are delayed ect... until you have expended all your deposit and it is time for you to do a midnight split.

It is not just that YOU DO NOT HAVE TO PAY THE CURRENT MONTH RENT, but if you have proofs of the date the damages started to disturb the pacific use of the house, you can claim all your paid amounts back.

A good letter by a lawyer will certainly help.

KIndest,

Maria

By the way, I managed to get my money back yesterday.  I found a website that explained about the landlord & tenant act 1985 and so I drafted the letter below for the attention of my landlords lawyer.

Victoria,

I reject your comments below that I am to pay a further €1200 in order to receive my deposit of €1800. 

Regardless of the contract that has been signed between myself and your client,

As under common law, landlords must ensure the safety and maintenance of rented property and their contents so that no injury or damage is caused to the occupants, neighbours or the public.

In May 2011 we notified the estate agents namely Costa Rentals or Nerja that our then 15 month old become ill as a result of excess mold growing on one of the bedrooms at your clients property.  

At which point your client ignored our initial concern of mold, emptied the septic tank, something we believed at the time was totally unrelated to the problem we highlighted. 

The mold problem caused damage to over €500 of personal belongings that had to be destroyed.  When we raised this issue with your client, we were simply told by Costa Rentals that your client could not claim on insurance for the damaged personal belongings. 

At this stage we could no longer use 1 of the bedrooms so we went down from a 3 bedroom property to only 2 usable bedrooms.  This was highlighted with Costa Rentals, at which point we witnessed Jacqui Pastrone of Costa Rental contact your client via telephone.  During this conversation Jacqui of Costa Rentals requested that our security deposit be returned if the problem had not disappeared within 1 month of your client emptying the septic tank.  Your clients reply was that she would contact her lawyer, who I assume is yourself. 

2 days later we were simply told – “No”

Despite this problem, we continued to pay €1200 per month on time every month and kept up to date with all bills as per our contract.

At this point, I would like to draw your attention to the Landlord and Tenant Act 1985.

This act states that is the landlords responsibility to ensure the following areas are safe and fit for use, as well as effecting repairs when necessary to restore them to a fair condition:

• The structure and exterior of the property.
• Any hot water installations, as well as the supply of water itself.
• Basins, sinks, baths and other sanitary or drainage installations.
• Ensuring an adequate provision of lighting, heating and ventilation.
• Treating of any health-threatening damp that occurs (not to be confused with condensation, a more common but less serious problem caused mostly by poor ventilation).

I’ve have underlined the 2 areas that your client has neglected. 

The second section I have underlined refers to the fact that nothing relating to the health threatening damp was carried out in a timely manner, and an inspection was only carried out a few days after we had cleaned the mold from our sons bedroom. 

The first area that I highlighted states that it is your clients responsibility to ensure that any drainage installations are fit for use.  The septic tank is not fit for use, as we soon found out just 2 months after our first problem on Thursday the 28^th of July 2011 I notified Jacqui Pastrone of Costa Rentals that water had flooded both bathrooms in the property when we were simply running a shower. 

We didn’t hear back from Costa Rentals and on Friday the 29^th of July 2011 I contacted Costa Rentals again of the same problem. 

On Saturday the 30^th of July 2011 sewage back up and filled both baths, both bidets and flooded a total of 4 rooms destroying personal effects as well as producing harmful fumes throughout the property.

May I remind you that an 18 month old child and an 8 month pregnant woman occupy this property with me.  As such, a decision was made for the safety of my family to permanently vacate the property.  At which point Costa Rentals requested that I contact you directly as they no longer wanted to deal with this rather serious issue.

As you know, I only want my security deposit back so that I can re-home my family in a property that does not pose serious health risks. 

At this point I would like to highlight that all 3 of us become ill as a result of drinking the tap water at your clients property in the first two weeks of July.  Something that had previously not been a problem over the 4 months we had lived at your clients property.

Our 18 month old son was diagnosed with the illness at the Centre de Salud in Nerja by the paediatrician Dr Elena Fernandez Segura on the 20^th of July 2011 the most likely cause for this condition is Water Contamination, and it is a well known fact that Gastroenteritis can be fatal in infants.   I have retained documents issued by the Centre de Salud as proof of the dates that this diagnoses was made.

It is highly probable that our illnesses are related to the contamination of the water as a result of your clients negligence, as 8 days after this diagnoses it become very apparent that there is a serious problem with your clients property.

At this point, I would like to highlight that the manager of the gardening company that maintains the your clients property - “Pepe” as well as Manolo from the company that came to drain the septic tank informed us that the reason for the problems with the sewage is because the septic tank doesn’t just need to be drained, but is needs to be cleaned in order to function property. Something that I’m sure your client must be aware of.

The reason I say that your client must be aware of the problem, is because I have written confirmation from Villasol Estate Agent that the last tenants on your property suffered exactly the same problem, and they have put us in contact with the cleaning company that came to clean up the mess on that occasion, a company that have photographic evidence of the issue. 

All of these facts lead us to believe that your client was aware of the fact that the septic tank did not function correctly when the property was rented to me. 

Something that contradicts both common law and the landlord and tenant act 1985.

So I will once again politely ask that our security deposit of €1800 is returned in full on Wednesday the 10^th of August via direct transfer to my solbank account 0081-0548-91-0001318434. 

I believe that this is a reasonable request given what we have endured over the last couple of months.  If you still feel that my request is unreasonable, and you continue with withhold my deposit, I will be exercising my right to inform the Environmental Health Department of the ongoing issues at your clients property.  A headache I think we could all do without.     

Regards

Keith W

I got a friend to translate it and I got this reply from her lawyer (please not I got the email below in Spanish and I've used google translate for any non spanish speaking people to see)

I acknowledge the contents of your letter, I will not start an argument, you have your reasons for what you want to go, and property defends his good work with you at all times, having attended all their requirements. Yes you want to move there has never been bad faith on my clients when they leased the house, which actually are aware of cesspool on the property, as in the entire development, which apparently soon be undertaken by the company appropriate sewage works to eliminate these cesspools, also reported that when not empty have been filled in no time my clients have been informed by the company unclog that drain the work done was not adequate, but very on the contrary given by the problem and resueltop took their toll.
Faced with this situation is not desired for my clients, and in order to avoid more trouble with you, I advised the return of the posted bond for an amount of € 1,800 to facilitate his departure. Le redactaré a document resolution lease to terminate the lease prior to its completion, to be signed by the property and before you return the deposit and you leave the building.
No more, and if you agree, tomorrow I am sending the document to show their agreement and settle the issue.

Regards.

Victoria

---------------------------------------

Now they did still withhold €300 for my electric bill, a bit steep I thought, and a dirty trick as I was out numbered when I met the owner to return the keys and pick up the deposit 6 of them, 1 of me!  Plus I don't speak very good spanish yet.

But €1500 is better than a kick in the proverbial b*ll*cks so I feel it was a little victory! 

Thanks for everyones advice by the way! 

Keith

 Good job!

Wow, great stuff Keith.

So glad to hear to the good news.

Justin