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

[StuzaTheGreat]

Hi Guys

we were recently going through the TDS service TDS -Home against our landlord. However, they have now returned all our documentation with the attached letter:

http://www.stuza.com/Disputeservice.jpg

I immediatley phoned the TDS people and a very helpfull rep informed me that the documentation (Tennancy Agreement) was missing Appendix 2 and 3 from this document:

http://www.thedisputeservice.co.uk/r...%20edition.pdf

This means that the contract that was created after April 1st of 2007 was not according to legal requirements and as such the TDS cannot enforce it. However, they have said that we can easily take the letting agency to court and we will get 3x +the original rent back - assuming they have it.

Now initialy this all sounds great to me as a; the dispute appears to be irrelevant (we have defaulted a win), b; we will be awarded nearly £7000 worth of penalties + our original deposit. The only downside is that we have to wait 6+months to get it back.

This is where I have a BIG problem with this:

We have to take to court the letting agency as they screwed up the contract. Please bear in mind the agency only introduced us to the landlord, all property management was done by the landlord.

Why do I not want to do this?

Well, the agency have been excellent. They have provided lots of information and letters to backup our claim against the landlord. They are polite and friendly and overall, really great people. They are a small business who are trying to make a diference. We never had any issues with the agency.

So the question is, is there anyway that I can make sure that the LANDLORD pays these fines and our deposit? If not, is there anyway I can ensure that we only get back our full deposit from the agency? What happens to all the deposit that the landlord is currently sitting on? Does he get to keep it? Can the agency recoupe the cost from him?

In short, its not fair the agency get punished, its the landlord who's being a t*&&£r imo.

Thoughts please? What do you think?

[philip13]

I think it is the landlord you have to take to court not the agensy. Best thing is to ask your local citizens advice bureau

[StuzaTheGreat]

How i wish it was! Sadly, its the Agency according to the TDS service. They after all the ones that messed up the contract leaving us exposed.

[MrShed]

The TDS are wrong. Its the landlord.

[Steve__M]

As a landlord, my heart went into my mouth when I read this. It seems completely unreasonable that an extremely important requirement is buried in item 8.2.1 on page 13 of a 42-page document.

I would also point out that 8.2.1 says "information in Paragraph 14.2.3" should be included in your tenancy contract, and this may be your landlord's get-out-of-jail card because Paragraph 14.2.3 does not exist!

It appears like it should have referred to Paragraph 14.2 which refers to Appendix 4, not Appendix 2 or 3 (unless the G Clauses it refers to say different):

The regulations contained in The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 require The Dispute Service to provide certain information and documentation to Members to pass on to their tenants. This can be found in Appendix 4. The information should be included in tenancy agreements as specified in TDS G Clauses to be included in tenancy agreements and terms of business. The documents will be provided by The Dispute Service Ltd...for Members to pass on to their tenants.

Which is poorly worded and hardly makes clear the critical importance of the point.

Fortunately, I use DPS, not TDS. They do not require me to do anything once I've paid them the deposit!

If you do sue your agent (and the judge fails to notice the error in the TDS document) then it is your *landlord* who will be ordered to pay you 3x the deposit, not the agent. From what you say though, it is the agent who fouled up and I would hope the landlord can then sue the agent for being useless.

If I sound a bit cross with agents, it's only because I recently had to explain the importance of deposit protection to my partner's agent who is being paid £100 per month for knowing this sort of stuff!

[StuzaTheGreat]

Hi Steve/MrShed/Philip

thanks for your responses - I am currently hoping you are correct. I am going to see the agents tomorrow early evening, I will also try to see a solicitor tomorrow afternoon.


Like you Steve, im not a member so I can't see clause G either but, I suspect it will say that this needs to be included.


So just to confirm, it looks like I sue the agents BUT the landlord has to pay? (And then the Landlord can deal with the agent if they feel so)

edit: Oh and i totaly understand your opinion of Agents I would normaly agree with you.

[StuzaTheGreat]

Actually this kinda nails it down really doesn't it?

The information should be included in the tenancy agreement as specified in TDS G Clauses to be included in tenancy agreements and terms of business. The documents will be provided by The Dispute Service Ltd, either in hard copy (for which there will be a charge fixed by the Board from time to time) or electronically, for Members to pass on to their tenants.

We certianly have not seen ANY documentation from the TDS other than our membership certificate. I guess as the landlord is the member, its his responsibility to ensure its followed correctly?

[Steve__M]

Originally Posted by StuzaTheGreat

Actually this kinda nails it down really doesn't it?

We certianly have not seen ANY documentation from the TDS other than our membership certificate. I guess as the landlord is the member, its his responsibility to ensure its followed correctly?

In law it is the "initial conditions" that have to be complied with to avoid the 3x deposit sanction. Because of their numbering error it could be argued that this section does not form part of the "initial conditions", and that therefore the 3x rule does not apply.

I wouldn't like to be the defendant though.

[Planner]

Nothing to stop you taken both the agents AND the landlord to court. It will cost the same, you just name them both as defendants. It will then be doen to the judge to decide whos at fault.

Ithink the actual act doest necessarily point to the landlord being at fault as it says;

212 (9) In this Chapter—
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies,

AND;

214 (3) The court must, as it thinks fit, either—
(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or
(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,
within the period of 14 days beginning with the date of the making of the order.
(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

So its not clear cut.

[StuzaTheGreat]

OK here goes:

the contract is only signed by myself and the lanlord (no mention of the agency anywhere). The TDS certificate only lists myself and the landlord. The agency have the deposit.

I just spoke to the TDS again and they are insistant that its the Agency I take to court however, as Planner said, maybe I should take them both?

Oh and whilst on the phone to the TDS I also discovered that the agency did not protect the money withing the required 14days - it took them over a month! Yet another nail in the coffin I think!

[Steve__M]

I rest my case - the agent is useless and deserves to be sued either by you or the landlord. The TDS need to be wrapped on the knuckles for producing bad documents, and the law makers need to be deprived of their generous expenses for making such bad law.

Failing to meet the 14 day deadline is certainly stronger grounds, though since the law-makers don't seem to understand what the law is, I would suggest you consider writing to the agents and landlord and stating that you will sue them for the 3x deposit due to the delay in protecting and due to the inadequate contract unless they meet your terms (you choose).

I agree that you may need to sue the agent and the landlord together because the law says that the agent, as the holder of the deposit, should have protected the deposit, but that the landlord is liable for the 3x "fine".

[Planner]

Originally Posted by Steve__M

I agree that you may need to sue the agent and the landlord together because the law says that the agent, as the holder of the deposit, should have protected the deposit, but that the landlord is liable for the 3x "fine".

Actually it doesnt say that the landlord is liable for the x3 "fine" as the word "landlord" can also include references to a person or persons acting on his or their behalf as per paragraph 212 (9).

[StuzaTheGreat]

Sadly Steve, even though I really like the agents, I am begining to see it your way. The agents have left me exposed and had the TDS/change in the law not been there, i'd of been really shafted!

Planner, this is going a bit beyond me (not dificult!), in your opinion then, remembering that there is no agent signature on any documentation, who should be paying the 3x fine? I will point out though that the agents did protect the monies so, i guess it depends on which point i'm successfull?

If the Tenancy Agreement (TA) is proven to be the winning factor, i guess the landlord? If the delayed protection, then the agency? What about if both are found to be successfull?

The first appointment I can get with a solicitor is Wednesday morning.... so complicated....


Guys, let me say thankyou now for your time and effort in responding to this thread, it's extremley valuable.... thank you! Should I win, I think I should pm you both for your address for a thank you gift

[StuzaTheGreat]

Would it help if I scanned the TA in and linked to it? (With private information substituted of course!)

[MrShed]

I must say, my opinion is that unequivicolly(sorry, cannot spell today!) the landlord will end up paying. The tenant has no legal relationship with the agent. I take on board what has been mentioned above, but ultimately the landlord will almost certainly be responsible(IMHO!). If it is in fact the agents negligence that has caused the issue, then the landlord can sue the agent to recoup his loss.

[StuzaTheGreat]

Originally Posted by MrShed

....The tenant has no legal relationship with the agent. I take on board what has been mentioned above, but ultimately the landlord will almost certainly be responsible(IMHO!).....

I have to say, from my highly UNinformed opinion on this, this would be my view as well. Again, as stated, there is no agent signature on anything so, how can they be held responsible for the missing clauses? I have also confirmed that the landlord is infact a member of the TDS (As a landlord) and so has access to all the documentation and instructions.

That said, the agent has messed up and did not protected the money by the deadline required.....


Thank you for your take on this MrShed, really appreciated

Any thoughts Planner/Steve about the fact I have two issues to sue on and who would be responsible for which?

[MrShed]

The safe option Stuza, again IMO, is that the landlord is the safe bet to sue. I think it would be VERY difficult for any judge, regardless of the above, to say that the landlord isnt ultimately legally responsible for all of this. The agent COULD be sued, but perhaps not successfully.

If there is no signature by the agent, then I think from a legal point of view, you can very easily forget that the age