Landlord holding onto deposit, not in a TDS

[annoyedtenant]

I have moved out of a property 4 weeks ago and have been waiting for the return of my deposit from my landlord. This week he emailed me saying that I would be getting about £40 back of my £440 deposit and then proceeded to list what the money had been spent on, without any prior agreement. Basically they have billed for two bank charges of £35 since the month before we left I forgot to transfer a top up of the rent to them until a few days late and when we vacated there was £130 rent still to be paid which we agreed would be taken from the deposit- however they now say that conversation never took place and that the deposit cannot be used for rent arrears- which I believe it can. They have billed for changing the locks on the property as I was too ill to meet up with them on the day we had agreed to hand them over and the landlord was going to come and collect them from me but didn't. He asked me to send them in the post and I said I would once we had the deposit back. Also billed for over £100 for replacing 4 kitchen cupboard doors which I still don't know the reason for as they seemed fine to me, still slightly hanging off the hinges as they were when we moved in!! Have also been billed for repainting a whole room because I had a dart board and had made a few holes in the wall which were all filled before I left. Lastly they are holding money for the water bill which was oweing when I left which I only received myself this week and have paid through internet banking so cannot provide proof to them.

The tenancy started in feb 2006 and was renewed every 6 months by signing of a new agreement. I understand the TDS only required when deposit given after april 2007 but what about if the tenancy has been renewed after this date as it was with us in aug 07. I remember it being an assured shorthold tenancy but having approached this subject the landlord says it was a periodic tenancy agreement and was renewed on the same basis only, only if it was expressly renewed under a whole new agreement do the funds have to go into a TDS.

I have asked them to return the amount which is not disputed but as yet have had no response, they have stopped replying to my emails as they say they are tired of it and feel we have no grounds for complaint. They feel their calculations are fair but have not provided me with any proof of these charges.

I think i have covered most points here, any advice greatfully received!!

[majik]

inform them that if they do not show you proof that these items were damaged/replaced that they cannot not it from the deposit.
The landlord cannot hold money for a bill if it's been paid. Get a mini print from ATM to prove it's been paid or print off the screen that says account balance zero on the water companies web site.
If you signed a new agreement in August 2007 he would have had to be in the TDS from what i can make out.
Use original inventory to prove Kitchen doors are in now worse a state that when you moved in.
Also it is standard practice to change locks anyways as the LL cannot be sure you haven't copied keys etc so i would suggest this to him.
I would inform send him proof that the water bill is paid and give him 14 to return your deposit less any agreed deductions and if he does not your will persue him for this back via the TDS or small claims.

[annoyedtenant]

I have put these points to him already but is not listening anymore and refusing to reply to me. What I really need to know is whether the deposit should definitely have needed to be in a TDS. Also the fact that there was no inventory when we moved in he cannot proove anything anyway. I don't think he even checked the property out when the last tenant left as he accused us of taking an electric fire which was never there and of breaking a window panel which was already broken!! Also the cupboards were full of the last tenants food and stuff when we moved in.

I think the bank charges they are trying to pin on me are out of order aswell- they have given me no proof of these and just expect me to accept it! They have threatened to call the police as they say I am harassing them by calling them constantly but they would not pick up the phone!!

[Planner]

I quite a agrre, all the TDS scheme rules say a new contract means a deposit protection but an unfortunate outcome posted on the landlord zone forums, and one imho, that should be challanged;

Well I can put this case to bed now, the hearing was this afternoon and this is what happened and what can be inferred from the judges comments.

The summarise - my situation was that I paid a deposit in April 06, for a 12 month AST. Then signed a new 12 month AST in April 07 for 12 months. The deposit was continued to be held against the new tenancy. The LL didn't protect it, but subsequently did on receipt of the court papers with mydeposits.co.uk (an insurance based scheme). I used N208 based on Planner's wording.

The judge made the following comments:

1. As it was a part 8 claim, a letter before action would not have made any difference as it's an absolute matter and no room for negotiation (in response to defendant's complaint about no LBA).

2. The fact that the LL had subsequently protected the deposit made no difference to the case. It would still lead to judgement for either return or protection + x3 penalty.

3. It was an absolute matter, with no case for morals or discretion on a penalty, it was all or nothing.


HOWEVER!

I lost the case

The Housing Act 2004 says that a deposit falls under the new legislation if it is paid and received after April 6th 2007. The judge said that she had to consider whether the fact that the deposit was already in the defendant's possession and that it was agreed it would be a new deposit for the new 12 month AST, it was not in the traditional sense paid by me and received by the LL. She ruled that the deposit was paid by me and received by the LL in April 2006, hence the deposit had to requirement for protection. She said that that was her personal interpretation of paid and received and that the HA 2004 was not detailed as to the definition of both. She said that she may be wrong but without the guidance of a higher court ruling and with regret that that was her stance.

So that is that - a big surprise to me. I didn't really ever question this point as from the online research and relevant leaflets etc from various sources that the vast concensus was that it didn't apply to renewals or periodics but it would apply for new ASTs where a deposit was continued to be held.

I put forward about as many arguments as I could but was getting nowhere. I feel that appealing at this point would not get me any further. So I live with the knowledge that issuing the court papers when I did and then getting my Section 21 shortly after, forced me to find and move into a beautiful new flat which would now be on the market for £200 more per month so I've made back my court fee already... my way of justifying the loss.

This should be of great help to those who signed and paid after April 2007, whose LL protected the deposit outside of the 14 days. On this point the judge agreed that the ruling would be absolutely clear and it was purely the 'paid and received' point on which I failed.

Make of that what you will and thank you all for your assistance with making my case. It was an interesting process and I learnt a lot, as a tenant and as a landlord!

[majik]

So send him a letter by registered post giving him 14 datys to sort out the issue before your file court papers to get your deposit back.

Inform him that once he can provide you with proof of the damage/charges incurred you will happily consider him deducting it from your deposit, if you do not have a writen response withing the 14 day limit you will file a county court claim against him to recover costs and your deposit.

I understand your trying to get it sorted but phoning him will not help, you need everything in writting so via post of email. Do not continue to send letters/emails send 1 and wait the time limit then issue papers, seeing the court papers will probably make him realise that your not just talking the talk and you know what your doing and should get it sorted.

[majik]

signing of a new agreement - i think this is the important bit it shows that the orignal agreement ended and a new one started. Technically the Landlord should have returned your deposit but as you stayed that would have just meant you giving it straight back etc.

I would agrue that as you signed a new contract in August 2007 then the TDS rules should of applied etc.

[Planner]

Have none of you read what I just posted above?

The best course of action would be to wait until this decision is appealed or there is a successful case. Whats the point in submitting a claim if the answer is going to be the same as the above decision?

[annoyedtenant]

Thank you for your advice, seems not to be a clear cut case on this one then. Will send letter asking for proof of the works and charges etc and see where we go from there.

[majik]

She said that she may be wrong but without the guidance of a higher court ruling and with regret that that was her stance.

On another day though with a differant judge i think you would get a differant outcome, you could surely argue that the landlord never returned the deposit to you when contract was renewed as he should have. If he had done this you would have given it back to him as the deposit for new agreement and thats that.

[Planner]

Quite right but does annoyedtennant want to be the guinepig? I doubt it.

[majik]

That would be his choice, personal experience tells me most landlords compromise once they are warned about court and even more once they receive court papers etc.

I personally believe that 8 out of 10 judges would rule for tenant in this case maybe a little higher but as with most things there will always be a arguement and there is never a right or wrong answer.