Deposit Dispute

[plastikmanc]

Haven't posted on here before but I'd like a second opinion on the below and this looks like a very good place to ask

(please note, I've read the stickys on the subject but can't seem to find a definitive answer to some of the questions I've got)

Basically, I'm thinking of taking my ex-Landlord to court for a lot of things really:

for breaching the contract as to allocated parking
for other contractual breaches
for mispresentation
for breaching right to quiet enjoyment

and also, most importantly here, for breach of his statutory requirements as to the HA 2004 in relation to protecting deposits.

It's the last bit I need a second opinion on.

The situation is / was that I was a co-tennant in a Shorthold Assured Tenancy that started in Sep 2007. We paid the deposit to the agent in Sep 2007. The tenancy agreement refers to the deposit as being protected by the scheme with the Deposit Protection Service - the custodial scheme.

After the aforementioned breaches above, and a whole lot of other issues, the landlords decided to end our tenancy at the 6 month renewal mark. They gave the required 2 month notice and when they did we also received a letter at the same time saying our deposits had been protected and lodged with the DPS.

I checked with the DPS and they did not receive the deposit for a full four months after we paid it to the landlord (i.e. Jan 200 - the tenancy was only for 6 months(!)

Now I've read conflicting things about whether I can make an application to the court for the 3x-the-value fine.

The contentious bit is seemingly that the deposit was eventually protected and is still held with the DPS.

What may also be noteworthy is that we withheld the last month's rent against the landlord (more for the breach of contract re the parking more than anything else) and that the landlord is trying to get the DPS to release the deposit to him. I have objected on the basis that he owes me more than I might owe him and the money remains with the DPS.

Whilst I understand that the court may take the stance that it either has to order the LL to repay or protect the deposit in order for it to award the fine, a clear 4 month documented gap before the LL did indeed protect it, seems like a clear breach of his statutory obligations (and indeed his contractual one's as per the tenancy agreement) .

Any thoughts anyone has on whether I should included this head of claim in my proceedings would be very, very much appreciated.

[StuzaTheGreat]

Originally Posted by plastikmanc

...I checked with the DPS and they did not receive the deposit for a full four months after we paid it to the landlord (i.e. Jan 200 - the tenancy was only for 6 months(!)

Now I've read conflicting things about whether I can make an application to the court for the 3x-the-value fine.
....

Take him to the cleaners. Im having a similar issue (look for my thread at the top of this forum) and there is no ambiguity (sp?), its 14 days or less or its "the judge MUST award 3x" ,.... no ifs, no buts, no "can award up to" ,... nothing. You should be awarded 3x + the deposit.

I'm looking at collecting £8300 when my case comes to court (seeing a solicitor Wednesday to confim)

edit: i'll let you know how I go on Wednesday. Strongly suggest you see a TDS aware solicitor on an introductory cheap price - could be the best £60/70 you ever spend

[StuzaTheGreat]

Check out this thread for mor info:

Tenancy Deposit Scheme

Application to the Court

The tenant can make an application to the County Court if the landlord has not protected the deposit, on the grounds that —
• the statutory requirements have not been complied with; or
• the tenant has been notified by the landlord that a particular authorised scheme applies to the deposit, but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in the scheme.

The statutory requirements will not have been complied with, for example, if:
• the landlord is not using an authorised scheme to safeguard the deposit; or
• the landlord has joined a scheme, but has not complied with the requirements of the scheme, so the deposit is therefore not protected by the scheme; or
• the landlord has failed to provide the tenant with the required information about the scheme and deposit, or has failed to do so within the first 14 days of the tenancy.


If the statutory requirements have not been complied with, the Court must:
• order the person who appears to it to be holding the money to either repay it to the tenant or pay it into an authorised deposit scheme, and that person must do so within 14 days; and
• order the landlord to pay the tenant three times the amount of the deposit, which must be paid within 14 days.

and

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

which means the LL has to pay it into a scheme withing 14 days.

[StuzaTheGreat]

Your gona love me

http://www.depositprotection.com/Web...9-72a788fdee8d (assuming this is your scheme management service?)

3. Overview of how the Service works

a. The Tenant pays the Landlord the Deposit in accordance with the terms
of the Tenancy agreement. If the Landlord chooses to protect the Deposit
with the Custodial Tenancy Deposit Scheme, the Landlord must pay the
Deposit to The DPS within 14 days of physically receiving it.

Go get him tiger ....

[MrShed]

Would not be as "cast iron" as Stuza, but certainly I think most peoples interpretation of the law is that the 14 day deadline is absolute, and if it is missed, then the 3xdeposit is due.

Impossible to say whether it actually will be until we hear of it tested in court, as the wording is in the whole act(contrary to what Stuza says ) actually quite ambiguous.

[StuzaTheGreat]

Not really sure how the above lines are ambiguous to be honest, looks pretty clear to me with regards to the 14days.


Anyway, i'm seeing a solicitor tomorrow and i WILL test this in court as soon as I possibly can!

edit: you might find this thread usefull -
TDS Dispute Returned - Missing clauses... (tennant) where to?

[MrShed]

Its because the first post you made is NOT quoted from the Act so has paraphrased.

[StuzaTheGreat]

Originally Posted by MrShed

Its because the first post you made is NOT quoted from the Act so has paraphrased.

... but the second was/is a quote from the rules with a link to the original document.

[plastikmanc]

Thank you everyone for your replies.

To Stuza: I would be very interested to hear how your meeting with the solicitor goes on Wednesday - best of luck with your case.

From reading the legislation myself, my opinion on the matter is that the Act sounds ambiguous. I.e. specifically, it could be read that the court needs to make an order against the landlord for either repayment or protection in order for the fine to be applied. In my case, after the four months, the deposit was indeed protected and no order for direct repayment or protection is necessary. I'm just going for the blatent breach of the 14 day clause. If it was only a few weeks...well...but this is 4 months, two-thirds of the tenancy.

Whilst I've read somewhere that tenants "windfalls" are not in the "spirit of the legislation", I would also argue that failing to protect the deposit for 4 months, with no fear of penalty, seems to be not in line with the "spirit" of the Act either.

I'll update this thread once things progress... I'm about to issue my N1. Wish me luck!

[StuzaTheGreat]

will reply here with the results. Luckily for me, I have my landlord on two counts, the first being the unprotected money for almost 6 weeks and the other, missing vital clauses (this bit could possibly be argued).

Good luck!!!!

[StuzaTheGreat]

<--- idiot boy made an appointment with a solicitor and then went to the wrong one. DO'H! In the process of making another appointment .....

[plastikmanc]

thanks for letting me know Stuza.

Meanwhile, if anyone else has been to court and / or seen a deposit protection aware solicitor who knows whether an action on breach of the 14 day rule alone attracts the 3x value fine - I would be very interested to hear from you.

Nice one

[StuzaTheGreat]

managed to find another solicitor, dropping all the docs to him on the way home today. Hopefully have some news for you tomorrow/soon

[MrShed]

Originally Posted by plastikmanc

thanks for letting me know Stuza.

Meanwhile, if anyone else has been to court and / or seen a deposit protection aware solicitor who knows whether an action on breach of the 14 day rule alone attracts the 3x value fine - I would be very interested to hear from you.

Nice one

Me too - really need a case to track on here to establish how the courts are viewing these breaches....

[billy_79]

Sorry, but I wouldn't even bother - even though the law is on your side, most judges are on the Landlords side regardless, as I've found out the hard way.

[MrShed]

Not true billy, and frankly a very unhelpful post in this section of the forum.

When you say most judges, I assume you have had ONE court case you lost?

[billy_79]

Originally Posted by MrShed

Not true billy, and frankly a very unhelpful post in this section of the forum.

When you say most judges, I assume you have had ONE court case you lost?

Maybe unhelpful, but it is clear that this TDS stuff is full of loopholes and complications, there are so many conflicting results so far, that bringing court action is like playing russion roulette. If the judge is a property owner, and many are, then they seem to want to side with the LL for some reason. And by the time you take costs and expenses into consideration, you have to ask if it's really worth it.

How many TDS cases have you won, MrShed?