Tenancy Deposit Scheme

[Steve__M]

Mr Pipps,

I'm confused because in your previous thread you said your deposit was definitely protected. Is this message in the right thread?

Iminent repossession of rented property - Should I withhold rent?

[Mr Pipps]

Good spot!

I am refering to a different property in that thread. That is my current rental property, which is being repossessed.

The TDS penalty is in respect of the property which I rented prior to that.

I've been having fun recently!

[Joa]

Guys, could we just post definite news, tips and experiences of TDS here, please? Otherwise thread becomes difficult to manage. Many thanks!

[Joa]

Ladies and gents, we have a decision!

TENANCY DEPOSIT CASE (S213 HA 2004)



Stankova v. Glassonbury 10th March 2008, Gloucester County Court



The claimant Ms Stankova is from Bulgaria and took a private tenancy with Mr Glassonbury on 1.8.07. She was a joint tenant with her daughter and another tenant (unknown to her before start of tenancy).



The tenants jointly paid a deposit of £600 in order to move in. The landlord did not notify any of the tenants that he had deposited the money in any of the statutory Schemes at any time.



There were various problems with the landlord and he served notice on 2.10.07. The notice was defective. The third tenant moved out of property shortly afterwards and the three tenants made arrangements about how the deposit would be dealt with on its return.



On 28.10.07 the landlord entered the property and removed a carpet and the fireplace from the lounge making it unusable and also pulled the extractor fan out of kitchen leaving a hole in roof. The Council dealt with the harassment. The landlord promptly served a further notice November 2007 under s21 which was on the face of it a valid notice.



Ms Stankova moved out in Feb 2008. She made a claim under the Housing Act 2004 against the landlord for his failure to notify her within 14 days of how he would deal with the deposit and which scheme he was using.



The landlord submitted various arguments against the claim; that the tenant owed some rent arrears, that he had now placed the deposit in a scheme and that there was damage at the property for which he would wish to withhold some or all of the deposit.



At the hearing of the matter District Judge Singleton ordered the landlord to pay £1800 +£75 costs in respect of three times the deposit plus the court fee.



In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or other arguments about the return or retention of the deposit on the basis that a statutory scheme included arbitration for disputed about returning or retaining deposit monies.



Comment: In giving his decision the judge expressed concern that ‘it goes against the grain’ and advised the landlord to take legal advice as to whether he could delay the 14 days in which he must pay the claimant.


With thanks to Gloucestershire HAC

[aBitofaPickle]

This is very reassuring. Do you know if/how to get a copy of the judgement.

[waterbottle]

Just subscribing

[RentedAndRankled]

Be warned; Joa has been asked to verify his source because HM Court Service has no record of a "Gloucester County Court".

[Joa]

Be warned of what, you muppet? you think I made it up?
Gloucester Crown & County Court
http://www.stltrainingschool.co.uk/WESTERN_CIRCUIT.pdf
combined, is the word.

[RentedAndRankled]

I was warning everyone that the details may not be correct so it may not be worth quoting it to anyone just yet.

The HMCS website (Her Majesty's Courts Service - Home) only lists the Gloucester Probate Sub-Registry and Gloucestershire Family and Civil Courts at the address from the references you mention.

The HMCS is the authoritive source for court lists, so although the sites you mention have the court listed it may have been renamed since they were written, hence why I was after the verification.

I didn't think you'd made it up, I just wanted to make sure that the court name is correct because if anyone uses this as an example then they could end up with egg on their face because the court name isn't correct.

[studentneedinghelp]

Can anyone give me some advice

I am a student I moved into my student house on 17th Oct 07
I found out about the TDS and asked my agency which one I was with on March 1st. They said I was with a certain one, I left it to March 20th, sent them email saying I want the paperwork and I was willing to court. Then sent me letter shortly after, they signed me up to protection on March 21st. So they failed to notify me within 14th days, and they didnt protect me for 6 months. Can I claim, I am now concerned also that Im not going to get my depoist back in a timely fashion, they said its going take at least 28 days, but thats allowed because there big agency and have so many houses.

Any advice will be greatly appreaciated

Tom

[Mr Pipps]

See s 214 of the House Act 2004.

You're gonna be rich!

[Joa]

I have asked before and I am going to ask again; can all queries, requests for advice, support etc be posted in a main forum. This thread is ONLY for TDS related news, tips, updates, comments on legislation etc.

[Ed999]

A claim for a penalty award of three times the amount of the deposit, under section 214(4) of the Housing Act 2004, might not succeed if the deposit has been protected or repaid before the court hearing takes place, even if it was not protected when the claim was begun.

This is because the court can only make an award under section 214(4) if it has made an order for repayment or protection: the Act does not provide for it to make an award under section 214(4) where the deposit has already been refunded or protected (and so no order for refund or protection is possible) - see http://resource.nusonline.co.uk/medi...ement_pack.pdf

However, protecting the deposit after being sued will not save the landlord if the tenancy has ended. In that case the court has a power to make an order for the repayment of the deposit to the tenant, which will give it jurisdiction to make a penalty award under section 214(4).

This appears to have been the case in the only reported decision on section 214(4), posted at TENANCY DEPOSIT CASE (Section 213 HA 2004)

The landlord could only protect himself in such a case by making repayment of the deposit in full to the tenant, before the hearing date, which in that decided case he had not done.

If the tenancy is still in existence, the landlord runs the risk at the court hearing of being ordered to repay the deposit in full (if that is the only avenue left open to the court to enable it to make a penalty award). That situation may never arise in practice; for upon receiving a tenant's application under section 214(4) a landlord's first step is likely to be to serve 2 months notice on the tenant, which will bring the tenancy to an end before the date of the court hearing.

For full details see Tenancy Deposit Scheme


Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

[waterbottle]

I think this is an old leaflet that was quoted a while ago in a sticky. But it hedges its bets...

A much better understanding comes from the Legal Action group article.

I would be wary of posting old information as in the context of chronological posts it can appear as new and authoratiative.

I initially thought you had discovered something new.

[Mr Pipps]

Originally Posted by Ed999

A claim for a penalty award of three times the amount of the deposit, under section 214(4) of the Housing Act 2004, might not succeed if the deposit has been protected or repaid before the court hearing takes place, even if it was not protected when the claim was begun.

This is because the court can only make an award under section 214(4) if it has made an order for repayment or protection: the Act does not provide for it to make an award under section 214(4) where the deposit has already been refunded or protected (and so no order for refund or protection is possible) - see http://resource.nusonline.co.uk/medi...ement_pack.pdf

However, protecting the deposit after being sued will not save the landlord if the tenancy has ended. In that case the court has a power to make an order for the repayment of the deposit to the tenant, which will give it jurisdiction to make a penalty award under section 214(4).

This appears to have been the case in the only reported decision on section 214(4), posted at TENANCY DEPOSIT CASE (Section 213 HA 2004)

The landlord could only protect himself in such a case by making repayment of the deposit in full to the tenant, before the hearing date, which in that decided case he had not done.

If the tenancy is still in existence, the landlord runs the risk at the court hearing of being ordered to repay the deposit in full (if that is the only avenue left open to the court to enable it to make a penalty award). That situation may never arise in practice; for upon receiving a tenant's application under section 214(4) a landlord's first step is likely to be to serve 2 months notice on the tenant, which will bring the tenancy to an end before the date of the court hearing.

For full details see Tenancy Deposit Scheme


Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

Ed, you are mistaken. You are very much mistaken. On a number of levels.

You really must understand, that the only thing that matters in this entire matter is what the law says.

I would recommend that you actually read section 214 of the Housing Act 2004. I would also suggest that you find the Houses of Parliament entry in Hansard concerning the introduction of the Tenancy Deposit Order 2007 and the reason that the Lords and the Legislator saw fit to have it enacted. I think you'll find it quite enlightening.

Then, I think you'll find that the long and the short of it is that it is completely irrelevant as to whether a landlord may or may not have already refunded a deposit to a tenant either before or after that tenant's application to the County Court.

Section 214(4) HA04 is not a civil provision. It is not the slightest bit concerned with whether a tenant has suffered a loss or not. It simply requires landlords to follow the rules. And if landlords don't follow the rules, and a tenant reports it to the Court, then the landlord must pay the penalty. No tort. No mitigation. No discussion. Nothing. Just the penalty.

That is the reality of the Tenancy Deposit Order 2007 and the Housing Act 2004.

[Mike46]

My first post and I wondered if anyone can help.

I signed a 6 month lease AST on April 2007 renewed Ocotber 2007 and given 2 months statury notice by the lalndlords in Feb 2008.On signing the original agreement we paid a deposit of £650.

According to the agrrement we were supposed to have recived notice within 14 days of moving out of the property notice of any deductions to be made.Having recived no notice I wrote to the agents requsting return of the deposit.Lo and behold they produced a letter dated within the 14 day period which I never recived,I doubt it was ever sent as these agents have a reputation for not receiving/not sending letters. I referred ithis tothe TDS but they are dragging there feet.

My question is;Have I the right to take it out of the hands of The Dispute Service and persue the case through the small claims court?

[Mr Pipps]

At this stage you should definitely be taking the matter to the County Court.

Start a new thread for your case in this forum, set out the details below, with as many additional details and corrected typos as possible.

That way, everyone on here who is able to help should be able to provide assistance to steer you in the right direction.

As Cedric The Entertainer once said... "You gon' nail their ass!"