TDS Dispute Returned - Missing clauses... (tennant) where to? - Page 3

rothers · 25th July 2008, 23:36

Hey Stuzathegreat, sorry for jumping rather late on the bandwagon, but I am also taking prev LL to court for unpaid deposit in dep scheme til 3 months after departing from property!! Whilst not entirely the same problem I really emapthise and admire the way you are dealing with this. At times over the last 3 months i have felt like physically hurting prev LL. He has (but) we cant prove it, took a child benefit cheque that he knew we were waiting for from our old address that was delivered there by mistake but has never cashed it. Now that gripes me - its my 2 daughters money and it has NEVER been mis- mailed before he seems to have it in for us for no good reason, greedy LLs will always get whats comin!! so dont you worry, i have every faith you will win- I know it!!

Note: We too like you are in a new rented prop. Lovley LL's and all that but 5 months on and still no DPS certificate, they say they have it at their house and will send it on- and although we like them im beginning to feel cheesed off that they know we are going to court already and they have neglected to do the same thing!! Bloody mad!! Sorry for ranting - im turning in to Victor Meldrew!!

StuzaTheGreat · 28th July 2008, 09:27

Funny how landlords can turn completley normal and reasonable people into a Victor Meldrew type person

Sadly, and something you need to be aware of, the courts seem to be giving mixed messages on the 14days protection/provide documents to tennants rule. We have heard on these very forums of people taking the landlords for this violation and them being rejected. One person we even told that he needed to take the LL to court DURING the tennancy and not after ..... how does that make sense????? We all suggested that the person should appeal the ruling but I don't think they did....

Fingers crossed for you but be aware

Loki117 · 28th July 2008, 13:41

Hi Stuzza,

How are you getting on with the court action?

I almost have the exact same case with the exception of they did secure my deposit before the 14 days bit didnt give the clauses as required in the tenancy agreement.

I have put my case to court and the landlord is defending that it was the agents job to do it and that he had paid them to do it. I am going to put my case forward for Legal agent and the landlord as being ultimatly responsible! We shall see how it goes but I would be very interested to hear how you get on. By the way I have contacted the TDS and asked for the clauses that should have been there. If I get them I can pass them on if you wish? Also I have asked the TDS for a letter saying that the landlords agent didnt comply with there initial requirements and prescribed information which they where happy to supply. It adds weight behind your case to have a look.

Lastly have a look at this Communities. gov. uk it seems to say the LL is responsible for persuing the agent but I have been told that these are only guidelines so perhaps treat with a pinch of salt. I have asked them to tell me how they came to this conclusion and I am now awaiting a response.

StuzaTheGreat · 28th July 2008, 13:48

We do indeed have virtually identical cases! And yes, my xLL recieved the letter from my solicitors and passed straight to the agency saying that it was there responsibility. Thing is, the agency are not on any documentation, its all his name on everything including the all-important TDS certificate!

I suspect the agency may have been asked/voluntered to protect it for my xLL but ensured he kept responsibility for it by asking him to sign a few forms etc. I suspect my xLL has not got his own legal advice and because of that, may well be in for a very nasty shock!

If you are/were part of "The Dispute Service" then the clauses are Appendix four (14.2?) if my memory is correct (look through this thread its near the start). Also, when you send off the TDS dispute, it will get sent back with a letter telling you the clauses are missing - so in effect, I have all this evidence allready

I would be very interested in the response you get from the .gov site!

I am currently waiting for my solicitor to update me and I hope he will do so today. As soon as I have more news, I will let you know

Keep us informed of your progress here aswell!

Loki117 · 29th July 2008, 17:01

Exact same! My landlord is the one on the cerficate BUT the address that the cert is for says 110 Loki 117 street when I actually stayed in 62 Loki117 st! I am not going to use that as any form of defence but I shall be showing the judge it as an example of there lack of attention to detail or there complaceny in dealing with TDS complience.

Thanks Stuzza your information is much appreciated.

One point though the section you refer to 14.2 only refers to the TDS G clauses it doesnt actually give them they are only avalible to members of the TDS. You can find out from Appendix 4 what "prescribed information" should be shown BUT the TDS are specific in saying it should be included via there supplied clauses.

I've asked them for a copy for a court case but looking at the tenancy agreement which my new agency has given me there 2 pages 12 clauses 3 disclaimers and a section requiring that the landlord and tenant sign or at least that the tenant is given the option to sign!

Another point is "Information supplied to the landlord as a document should be passed on to the tenant" I dont know about you but I received no such document again the TDS say this should be distributed as it is part of the prescribed information.

I have one concern though if you look through the TDS member rules it refers to 14.2.3 as the required initial requirements which must be provided to the tenant within 14 days. 14.2.3 doesnt exist! This could be a large issue! Have a read its in point 8.2

StuzaTheGreat · 30th July 2008, 09:00

Hi Lokki

yeah I have spoken to my solicitor regarding that paragraph 8 bit and he seems to think it won't be a problem.

Again, the reason I have such a strong case is just because of all the documentation that the landlord was supposed to pass to me, in the form of attached clauses or otherwise, that he didn't.

If you look back to page two you will see my solicitors letter to the agent, don't know if it will be usefull to you?

Loki117 · 30th July 2008, 10:50

Quote:

Originally Posted by StuzaTheGreat

Hi Lokki

yeah I have spoken to my solicitor regarding that paragraph 8 bit and he seems to think it won't be a problem.

Again, the reason I have such a strong case is just because of all the documentation that the landlord was supposed to pass to me, in the form of attached clauses or otherwise, that he didn't.

If you look back to page two you will see my solicitors letter to the agent, don't know if it will be usefull to you?

Yeah your letter does help a load Stuza. Thank you. I got the TDS G clauses today from the TDS would you like for me to sent them over to you? they are certainly an interesting read. If you drop me a PM with your email address I can send them on.

StuzaTheGreat · 30th July 2008, 10:50

Quote:

Originally Posted by MrShed

The agent acts on behalf of the landlord (literally, as the legal agent of the landlord). This basically means legally for you that the two parties are one and the same. Proceed as you are, the landlord has ultimate responsibility for this.

Just had this confirmed by my solicitor. Basicaly, the solicitor is uninterested in the landlord passing "the buck" to the agency and has said that in 21 days, with my permission, he will start legal proceedings against the landlord.

With this in mind, I strongly suspect that the LL has not gone to a solicitor ... boy, is he going to be in for a shock in a couple of weeks!

Again, the solicitor has stated that although the agency may of helped, the landlord is ultimatley responsible, NOT the agency. That said, the LL could now sue the agency for breach of contract - assuming there was one

As anyone knows thats been following this thread, I am very happy about this as the agency were excellent and very helpfull to me. They even went to the levels of commenting on the poor condition of the property in a letter to the TDS (which sadly never helped ... hence this case). I truley hope the LL has screwed up on his contract with the agency and doesn't have a sufficient case to take the agency to court.

Now to let the 21days expire.........

p.s. what i find the funniest about this is, the landlord on his headed paper has "Contract advise" as part of his companies services ...

Loki117 · 30th July 2008, 12:01

Quote:

Originally Posted by StuzaTheGreat

Just had this confirmed by my solicitor. Basicaly, the solicitor is uninterested in the landlord passing "the buck" to the agency and has said that in 21 days, with my permission, he will start legal proceedings against the landlord.

With this in mind, I strongly suspect that the LL has not gone to a solicitor ... boy, is he going to be in for a shock in a couple of weeks!

Again, the solicitor has stated that although the agency may of helped, the landlord is ultimatley responsible, NOT the agency. That said, the LL could now sue the agency for breach of contract - assuming there was one

As anyone knows thats been following this thread, I am very happy about this as the agency were excellent and very helpfull to me. They even went to the levels of commenting on the poor condition of the property in a letter to the TDS (which sadly never helped ... hence this case). I truley hope the LL has screwed up on his contract with the agency and doesn't have a sufficient case to take the agency to court.

Now to let the 21days expire.........

p.s. what i find the funniest about this is, the landlord on his headed paper has "Contract advise" as part of his companies services ...

Be careful Stuza I know the lawyers know there job etc but when you look at the housing act it really does have the landlord and agent on equal standing. Just be aware of it.

I am in the same boat as you would REALLY like to have the landlord accountable for this as he has been an absolute nightmare including screaming at me down the phone for "hounding him" granted I sent him an email every day asking if he intended paying the judgement against him (this was before he had requested that the judement be set aside) but this is my right to persue someone for money they owe me. Anyway back to my point just be careful because if they can sidetrack the case in front of the judge to be an argument over who is accountable the fact that one of them hasnt done what they should have could escape the judge. However if they want to concentrate on pointing at one another while you tell the judge what whoever the choses should have done this could work out well.

StuzaTheGreat · 30th July 2008, 12:09

Cheers mate

thing is, no where on any document is there a signature from the agency... EVERYWHERE and i do mean EVERYWHERE, its all signed by the LL. The tennancy agreement, the pi*& poor check-in inventory, the incredibly detailed check out inventory, the TDS information, absolutley everything .... all the LL's sig.

MrShed · 30th July 2008, 12:21

Quote:

Originally Posted by Loki117

Be careful Stuza I know the lawyers know there job etc but when you look at the housing act it really does have the landlord and agent on equal standing. Just be aware of it.

Sorry but thats not true - the agent is someone acting ON BEHALF of the landlord. You as a tenant have NO LEGAL RELATIONSHIP with the agent - the agents only "customer" is the LANDLORD.

Esio Trot · 30th July 2008, 13:11

Quote:

Originally Posted by MrShed

Sorry but thats not true - the agent is someone acting ON BEHALF of the landlord. You as a tenant have NO LEGAL RELATIONSHIP with the agent - the agents only "customer" is the LANDLORD.

But this is precisely the area where the Housing Act is poorly drafted. In s213 it states:

Quote:

(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must ...

and then it says be dealt with in accordance with a scheme (No mention of 14 days here!)

Just two clauses down it then changes to

Quote:

(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy ...

it goes on to give a time limit of 14 days from receipt.

Therefore, would it not be possible for the agent, holding the deposit, and not passing it to the landlord to absolve the landlord under the 14 day rule. The landlord can say as his defence to any court action, "under s213(3) I have never received the deposit, and so I am not subject to the 14 day rule. Sue the person who received it (i.e. the agent) not me".

Loki117 · 31st July 2008, 09:37

Quote:

Originally Posted by MrShed

Sorry but thats not true - the agent is someone acting ON BEHALF of the landlord. You as a tenant have NO LEGAL RELATIONSHIP with the agent - the agents only "customer" is the LANDLORD.

Hi MrShed I agree I have no contract with the Agent BUT the housing act says that Landlord can mean agent in the act so even although the landlord is supposed to handle the deposit the agent could be responsible.

Loki117 · 31st July 2008, 11:21

Quote:

Originally Posted by Esio Trot

But this is precisely the area where the Housing Act is poorly drafted. In s213 it states:
and then it says be dealt with in accordance with a scheme (No mention of 14 days here!)

Just two clauses down it then changes to
it goes on to give a time limit of 14 days from receipt.

Therefore, would it not be possible for the agent, holding the deposit, and not passing it to the landlord to absolve the landlord under the 14 day rule. The landlord can say as his defence to any court action, "under s213(3) I have never received the deposit, and so I am not subject to the 14 day rule. Sue the person who received it (i.e. the agent) not me".

Hey Esio,

In my case and Stuza's the fact that it doesnt say 14 days is not important as the TDS stipulate in there rules that is should be done within 14 days by the "member" so this is covered by the line "in accordance with the scheme" HOWEVER the "member" 9/10 times is the agent and not the landlord so this is why I would take both the agent and landlord with you to court and let the judge decide who is responsible.

From a purely "will i get my money" point of view the best result would be if the agent was held responsible as they are of fixed address and have a bigger business but it my case like Stuzas the agent have actually been very good the landlord has been a nightmare.

StuzaTheGreat · 31st July 2008, 11:36

In my case, the "member" is the landlord. As mentioned above, the letting agency isn't mentioned anywhere. And as mentioned, the solicitor said the LL may have a "breach of contract" case against the agency should I win against the LL.... hope they don't though

Loki117 · 31st July 2008, 11:42

Quote:

Originally Posted by StuzaTheGreat

In my case, the "member" is the landlord. As mentioned above, the letting agency isn't mentioned anywhere. And as mentioned, the solicitor said the LL may have a "breach of contract" case against the agency should I win against the LL.... hope they don't though

Hey Stuza the agent may not be mentioned anywhere in the docs BUT they could still be the "member" it depends who the TDS face off to and who pays there membership fee is it the agent or the landlord?

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