Confusion over tenancy agreement and TDS scheme - is it applicable?

[JohnW]

My problem is as follows. I originally took an Assured Shorthold Tenancy with my landlord in Top Floor flat of a block of 8 flats some 2-3 years ago and signed an AST agreement but never asked for a deposit.
In July 2007 I moved from the Top Floor flat to the Basement Flat (same building/same landlord) with a rent increase (and still no deposit). No new written Tenancy agreement was signed, merely verbal agreement on new rental.
Landlord eventually took a deposit in December 2007, but not registered it with any Deposit Protection Scheme.
Landlord is now attempting to force an increase of rent on me and I am against this and if I do not accept then I will be evicted. I was hoping that my deposit plus 3 x deposit (as per legislation) would be awarded if I initiated Court proceedings, HOWEVER, upon reading up on it I am beginning to think that I am unable to do so as it may appear that my deposit is exempt from DPS (even though taken after the 6 April 2007 deadline), as it may transpire that I am on a Periodic Assured Tenancy agreement by default?
My thought is that surely as I moved from one address (i.e. Top Floor flat to Basement Flat, albeit in the same block) in July 2007 should the Landlord have asked me to sign a new Assured Tenancy Agreement? Even so, had this been the case it would probably have been a 6 month agreement expiring Jan 08 and then into a Periodic? So in the absence of a new agreement (in the new address) does the Landlord need to intitiate an AST with me effective now, or is it too late?

[Planner]

As you have moved to a different address, a new AST would have to commence on the date you moved. Therefore TDS will apply.

[JohnW]

Thanks for the swift response! But as my Landlord usually only offers a 6 month AST (which would have been effected from July 07 then), this would mean that I am now on a Periodic-monthly tenancy. Reading the websites it indicates that the rules for Tenant Deposit Scheme does not apply to this type of agreement/tenancy, or have I misread it? I suppose that as the rules came into effect April 07 and my tenancy in the NEW address began in July 07 and the LL took deposit Dec 07, despite that my AST would have expired Jan 08 and then became a Periodic-monthly tenancy the TDS rules still apply????
Sorry, but I am so confused about it all. Basically though I just need to be sure in my mind that despite NOT having a new tenancy agreement in writing (July 07), my Landlord is assuming that they have no obligation to protect my deposit? Is this so? And am I able to insist that my Landlord provides me with a new agreement (and does it need to be backdated?) Thanks.

[Planner]

When you moved addressess in July 2007, a new AST would have begun. It doesnt matter if this is in writing or not, it still exists. At this point yor LL should have either returned your deposit or protected it under one of the TDS schemes. It matters not that the AST has now lapsed into a periodic, the deposit still should have been protected back in July (and thus still protected now that you are in a periodic).

Your LL cant argue (that I can see) that you didnt start a new tenancy and are on a periodic from the original tenancy 2/3 years back as you have moved addresses, and a periodic must relate to the same address that the original fixed term was issued for.

[JohnW]

Thanks once again! And I understand therefore that NEW address (albeit in the same block owend by the same LL) means a FRESH tenancy agreement. Whether a written contract existed would not matter, as it is implied? New address, new amount of rent etc? To chase up the return of my deposit PLUS the 3 x deposit compensation, would it be best to write/email the 3 apparent Secure Deposit Agencies with my address and check that the deposit is, in fact, NOT lodged with them so that I would have these letters to hand before I apply to the Court? I understand that the LL only had 14 days from taking my deposit to return or place my deposit and even if the LL now decided to do so, they would be in breach? Reading the forum there is confusion over whether N1 and the actual wording of the claim is appropriate. Can you shed any light on this for me please? The LL is being very unreasonable with me and trying to enforce a rent increase, which I suppose they can do as I am now on a monthly periodic despite me having a verbal agreement that the small fortune I have just spent (with their permission) in redecorating substantially and recarpetting that they would not raise the rent. They have now gone back on this verbal agreement, so that the flat is in a substantially improved state and I reckon that they have now had it reassessed!!! Not exactly fair, but there you go, you live and learn.

[Planner]

Thats correct, you should find out by phoning/emailing the 3 tds schemes to see if they hold your deposit. Even if they do, you are correct that the LL would still be in breach of the 14 day requirements, although to me it appears fairly obvious that your deposit is un-protected.

I dont think there is any particular confussion about the N1 wording, the confussion is actually if N1 is the correct form on which to persue a claim, the alternative being N208 (part form. I personally (and quite a few others) believe that N208 is the correct route. Theres some suggested wording at TDS Court Claims Wording - Possible Sticky?

[JohnW]

Thanks again! Really impressed with your knowledge. Got a real poser of a question for you now. I asked LL for the deposit reference number and with whom my deposit was lodged, to which replied 'it is safe, with my solicitor!'. To which I queried should it not be with 1 of 3 agencies? LL stated 'not sure, would come back to me.' 2 days later, LL contacted me and offered my deposit back (with no rent increase, as was LL intention) with the pretext of 'dont really need a deposit from you, as you have redecorated and refurbished, spent a lot of money on the flat' so would like to offer you the deposit back!!! Wants a letter signed to state I am accepting the deposit return, which she has held since Oct 07 (without placing in a secure scheme). Do I therefore lose my future rights to claim a breach of statute in relation to requirement to lodge my deposit and/or return my deposit within the FOURTEEN day period of taking it? I feel that if I were to make a claim now then LL would serve me with the statutory 2 months notice of eviction. I really would like to know whether the actual return of the deposit (bearing in mind it was placed in oct 07, and NOT lodged with one of the Agencies) would affect any future claim? LL has obviously breached the statute anyway, as did not comply with the 14 day rule. What are your thoughts?

[waterbottle]

This deserves a bump I think. It might be worth getting LL's side in writing if possible. Abitofapickle has a TDS court date for the 25th so that may shed some light on things!

If he returns the deposit he may say 'it was all a mistake and you sent it in error etc.' Try and communicate by email or letter.

Don't underestimate the lies that people will tell in court!