TDS Dispute Returned - Missing clauses... (tennant) where to?

[StuzaTheGreat]

guys, this is stunning, really and truley stunning!

Can I suggest that if you live in rented accomodation you check your contracts and TDS certificates? Yeap, the NEW agency we are with have messed up on EXACTLY the same stuff. The money was NOT protected within the 14days and Appendix 4 is missing again. This time the deposit is £3000 so *IF* the agency get pathetic and greedy like the last landlord, we will take them for £12000!!!! If they don't get greedy and we pay only reasonable repairs/cleaning etc then we will not take them for the £12000.

[Steve__M]

Stuza,

Can you confirm that your new deposit is again being protected by the Tenancy Deposit Scheme (not the Deposit Protection Service or Tenancy Deposit Solutions Ltd which are the other two deposit schemes which have different "initial conditions" that don't require those clauses).

I might ask the question in the landlordzone forum as to whether agents are getting into trouble with respect to these schemes (particularly meeting the 14 days).

Steve

[StuzaTheGreat]

Hey Steve

Yup, TDS indeed.

edit: oh and i've asked on the landlord forums a few questions and never got any replies help - understandably, they don't seem to helpfull to rentee's.

[MrShed]

Landlordzone you have tried? They are usually INCREDIBLY helpful to rentees/tenants.

You say the deposit is £3000....how much is the monthly rent??

[StuzaTheGreat]

yeap, i've posted on there a couple of times and never got anything back.

£1650 a month with a little extra deposit for a dog. (6weeks+2)

[StuzaTheGreat]

Right o guys,

just spoken to my solicitor over the phone and its looking very good.

Ok first thing, he seems to back up everything stated already in that;

• the landlord has not protected the money within the required time frame
• the clauses are missing
• has not followed the correct dispute lodging procedure i.e. informed me within the required time frame

To quote the solicitor "it looks like he (the LL) has missed the entire point of the TDS". The sol said that there is no such thing as a dead cert case in litigation BUT its about as good as it gets.

Here is the bad(ish) bit. This would have to go through the courts using the "Fast Track" route. This means it would be very costly, possibly amounting to a fair few thousand pounds however, it will all be done on account (with a £500 deposit) and *IF* I win, the court will award 70-90% costs as well. Should I lose, I will be liable for the FULL amount. Having said that, I am able to stop at any point and pay the bill as it stands.

So, I think its worth me writing to the LL and suggesting he pays 2x the deposit+ the deposit (within 30 days of the letter?) and consider the matter closed or I take him to court, pointing out the very strong case. Is this a wise thing to do? Should I maybe get the solicitor to do this?

The solicitor did mention something along these lines using the words "without prejudice"(?) but he said that he thinks the minimum costs would be £1500, is this something I can do myself without endagering the case should I need to proceed further?

[MrShed]

Why not take him to small claims for the 5k? Instead of risking a lot of money for the extra?

[Steve__M]

I was thinking about this just the other day.

The law says that the judge "must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit". Nobody gets a say in the amount.

So any deposit above £1250 risks ending up not being in the Small Claims Track.

[StuzaTheGreat]

Originally Posted by Steve__M

I was thinking about this just the other day.

The law says that the judge "must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit". Nobody gets a say in the amount.

So any deposit above £1250 risks ending up not being in the Small Claims Track.

Thats my take on it as well Steve, don't have any choice. Its either all or nothing in this case.

[MrShed]

No it isnt....you can still take them for the £5000 and forego the(relatively) small amount extra....?

[StuzaTheGreat]

Originally Posted by MrShed

No it isnt....you can still take them for the £5000 and forego the(relatively) small amount extra....?

Hmmm .... my solicitor didn't mention any of that.

Also, tbh, £3000 of £8000 is not imo a small amount but, it is a gamble. Thats why i posted here, to try to understand how I can proceed and save some "fees" with the first few letters, the "without prejudice" letter... anyone know a template?

[MrShed]

Its not, a small amount I agree. But then wipe off that a) the portion of the costs that you will have to pay if you win and b) the risk of all the costs if you lose, it seems like a much more appealing option.

[StuzaTheGreat]

Hey Guys

"we" (my solicitor and I) are about to send the first letter to the landlord.

Its seems we dont have many cases like this listed on the forums, in particular, one for such a high value (£8300 (deposit+3x)). Would you all be interested in me starting a new thread and keeping a history along with links to scanned documents/letters?

[MrShed]

I would, but I would personally advise you keep it in this thread, as it has the history.

Good luck!!! *crosses fingers*

[StuzaTheGreat]

First letter going today, should help him have a nice weekend

(Obviously, stuff has been changed)


Dear Mr Landlord and Ms Landlady

Assured Shorthold Tenancy Agreement dated xx June 2007 and made between Mr Landlord and Ms Landlady (1) and StuzaTheGreat (2) (“the Agreement”) in respect of a house (“the Property”)

We act for your former tenant of the Property, Mr StuzaTheGreat.

Our client has instructed us in relation to a dispute that has arisen regarding the return of our client’s tenancy deposit.

Please find enclosed a bundle of relevant documents marked LSF1, to which we refer in this letter. The page numbers referred to in this letter are numbered pages of LSF1.

Salient Facts

Shortly before the Agreement was entered into on xx June 2007, our client provided you with a deposit cheque for £2,075.00. In accordance with Clause A5 of the Agreement (see page [ ]), the deposit was to be safeguarded under the Tenancy Deposit Scheme (TDS). The “Certificate of Tenancy Registration” document (see page [ ]) provided by the TDS, states that the deposit was protected on xx July 2007 (for forum: 6 weeks later). At your request, our client surrendered his tenancy on xx April 2008.

Landlords’ Requirements

Tenancy deposits are now subject to s. 213 Housing Act 2004, which came into force on 6th April 2007.

Under s. 213 (3) Housing Act 2004 “where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received”.

Further, under s. 213 (5) Housing Act 2004 “a landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to the authorised scheme, compliance by the Landlord with the initial requirements of the scheme in relation to the deposit etc”and by s. 213 (6) “the information required by subsection (5) must be given to the tenant or any relevant person:

(a) in the prescribed form or in a form substantially to the same effect , and
(b) within a period of 14 days beginning with the date on which the deposit is received from the Landlord.

Therefore, where a landlord receives a deposit in connection with a shorthold tenancy, he must, within 14 days of the date on which the deposit is received, comply with any “initial requirements” imposed by the specific scheme and give the “prescribed information” to the tenant.

The TDS’s “initial requirements” are contained in Clause 8.2 of the TDS Rules of Membership. This requires a landlord to provide a tenant with the information specified in Clause 14.2, within 14 days of receiving the tenancy deposit, by including the said information within the Agreement.

Under Clause 14.2, the information that needs to be incorporated within the Agreement is all that information required by The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (see pages [ ]).

The “prescribed information” that Landlords must provide to their tenants, within 14 days of receiving the deposit, is all that information listed in s. 2 of The Housing (Tenancy Deposits) (Prescribed Information) Order 2007, as referred to above.

Landlords’ Breaches

Contrary to the provisions of s. 213 Housing Act 2004, you have failed to:

1. comply with the initial requirements of the authorised scheme within 14 days of receiving the deposit;

2. provide our client with the “prescribed information” within 14 days of receiving the deposit.

This is so because you failed to incorporate the information contained in s.2 The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 into the Agreement. Consequently, you failed to meet your “initial requirements” required by the TDS in accordance with s. 213 (3) Housing Act 2004 and further, failed to provide the “prescribed information” in accordance with s. 213 (5), with 14 days of receiving the deposit.

In addition, the Certificate of Tenancy Registration states that the deposit was not protected until the xx July 2007 (for forum: 6 weeks later), significantly later than the 14 day timeframe.

The result of this has been to deprive our client of resolving the deposit dispute through the TDS. In accordance with Clause 7 of the TDS (see page [ ]), our client attempted to utilize the Independent Case Examiner by completing the Notification of Deposit Dispute Form. However, as you will see from the letter of xx June 2008 at page [ ], The Dispute Service Limited is not able to progress the dispute because there is “no prescribed clause included within the tenancy agreement that refers to TDS scheme”.

Had you complied with the above legislation, the requisite dispute resolution clause would have been included within the agreement.

In summary, the provisions of The Housing Act 2004 make it a requirement that any Landlord who wishes to take a monetary deposit must safeguard that deposit with an authorised tenancy deposit scheme; the two main aims of this being to safeguard the tenancy deposit and to facilitate the resolution of disputes arising in connection with these deposits.

Due to your failure to comply with s. 213 Housing Act 2004, our client is entitled to apply for a Court Order under s. 214 Housing Act 2004, ordering that you repay the deposit to the tenant in full. Further, if the Court is satisfied that the deposit was not held by you in accordance with an authorised scheme, the Court must order that you to pay to the tenant an amount equal to three times the deposit amount, within 14 days of making the said Order (s.214 (4) Housing Act 2004.)

In light of this, our client requires payment equal to four times the deposit equalling £8,300 with 21 days of the date of this letter. If you fail to make this payment within the timeframe, then we will seek our client’s instructions to apply to the Court for an Order that you pay these monies.

We look forward to hearing from you.

Yours faithfully



Solicitors

[StuzaTheGreat]

OK - recieved a letter back from the landlord yesterday saying that he has passed my letter on to the letting agency as they introduced us. It seems to me that he is passing the blame back to them. As far as I remember (solicitors currently have it all) the agency has no mention apart from being the "introducer" in any documentation anywhere.

He has also said that he is not registered with the TDS and the agency would of done all of this. Again as far as I remember, the agency wasn't mentioned anywhere on this documentation. Does this mean he is/isn't responsible and the agency is? If he is, does this mean he didn't realise he was and is now in a whole world of hurt as he didn't check his role properly?

Is anyone still reading this test case???

Are we the only ones in the galaxy????