Why is damage by tenants deemed to be a civil matter?

January 3, 2017

Posted by Sarah Marshall

Whilst the majority of tenants are decent and treat property with respect, there are those who can cause a lot of damage. They think nothing of smashing doors, breaking windows or damaging carpets. They may have had parties or simply not been bothered when something gets broken, because it is not their property. Many landlords have found the police are not interested in getting involved and fob the matter off as a civil matter rather than a criminal one.

However, the definition in the Criminal Damage Act 1971 says a person is guilty of an offence if they destroy or damage other people’s property without lawful excuse or they are reckless as to whether property will be destroyed or damaged. Depending on the value of the damage, it can be dealt with by magistrates or Crown Court, with punishment ranging from fines to imprisonment. So why aren’t more tenants prosecuted, when the terms of the Act more than suggest that they have committed a criminal act? It seems the police are not keen to act, because it is difficult to prove that the damage was done by the tenant. However, the tenant is the person in charge of the property and should, therefore, shoulder this responsibility.

A report by the Landlords Union, Property118, says a judge is looking into the scale of the problem of the police and CPS saying it is a civil matter. The matter came out through a chance meeting on a flight from Malta to Heathrow when Property118 member Mark Alexander sat next to a judge on the plane. A great random moment with hopefully something positive coming out of it.

If the police will not act, then other options include withholding part or all of the tenant’s deposit, although this will not cover major damage of course. You will need to notify the tenant in writing that you intend to withhold the money to pay for the damage. If he or she agrees, then the deposit protection scheme, where the deposit is registered, can split the money. If the tenant does not consent, then the scheme’s dispute resolution service can help. For larger amounts, legal action will be necessary, possibly by making a civil claim in the county court. If during an interim inspection or check-out, you notice that items are missing or property has been damaged, then it is always worth trying to come to an agreement with the tenant to repair or replace it. If the tenant has already left or is uncooperative, then getting in touch with the police is certainly one option.

Obviously, it cannot be stressed often enough that landlords need to have full details of their property and all the items in it. The inventory needs to be thorough, along with the check-ins and check-outs, so tenants have no redress when you show them the evidence. Photographs or videos are also essential and all of this can be used as evidence in court, if things get that far.