TDS - what does it mean?

[Geordie08]

WE gave our landlord 1 months rent when we moved in as a deposit.

As far as I am aware he has not registered this in a TDS. But we did not ask him too...

Is it too late to ask hiom to do this now?

WE move out in 4x weeks and Im worried he won't return any of it and we will not have a leg to stand on!

Is it his responsibility to register it or ours to ask him to do so? I have read here that TDS can only cover you whilst the tenancy is active, hence I am very keen to know more about this urgently.... we are already in our 1 month "notice" period...

Thanks,
M

[Geordie08]

Ah... wemoved in on 24th November 2007, hence after the April 07 start of the TDS I believe...

Thanks,
M

[MrShed]

He is in breach if he has not protected this as it is AFTER the legislation came into effect.

Are you with an agent or private landlord?

[Geordie08]

Private Landlord. Shorthold Assured tennancy, signed after the legislation came into effect. Never went through an agency as we found the place on the internet.

We had a problem with a chemical toilet he installed and we think when we leave he will try to take the money for the "toilet specialist" from our deposit...

The contract was a standard, buy it from WH Smith contract, and when we signed it it said that it would be held by the landlord to cover any damages to the property etc.

The contract makes no mention of paying it into a protection scheme, hence my question.

Will I be better waiting until the end of the tenancy and then if he charges us money from our deposit taking him to court for not doing the protection scheme. Or should we ask him to do this now?

We move out in less than 4x weeks, checked the contract and he has £1,300 depsoit from us, our rent is less than £25k per annum.

Thanks,
M

[foolishgirl]

If it was me, I wouldn't rock the boat before you move out & before you've given LL the chance to repay your deposit seeing as you've so little time left on your lease. He may just be acting in ignorance of the law (no excuse but maybe no ulterior motive either). He may repay in full in which case, problem gone before it materialised; if not go for him with a vengence - he will have broken the law AND not returned your deposit.

[Redmax]

The worrying thing here though is that in a recent lost case posted on here the judge ruled you couldn't claim after the tenancy had ended
This is the link to it :
Deposit Protection - A total waste of time!

[MrShed]

Redmax - the "senior" members here(myself included) feel that the judge in this case basically ignored the law. That case would be fairly easy to successfully appeal, so I think we cant read too much into that currently.

[Redmax]

Thanks Mr Shed that's good to know.

[MrShed]

Welcome

The only concern is that as it is the only TDS case I have yet been aware of, it would appear to be a 100% fail rate, and we cannot guarantee that this decision will not be replicated elsewhere.

I would really like this decision appealed, as when appealed it can form part of case law should the appeal be won.

[Esio Trot]

Originally Posted by Redmax

The worrying thing here though is that in a recent lost case posted on here the judge ruled you couldn't claim after the tenancy had ended
This is the link to it :
Deposit Protection - A total waste of time!

I have only read the above post, and did not attend the hearing. However,it seems that the judge would have dismissed the case under s214 (1) of the Housing Act 2006:

Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant ... may make an application to a county court on the grounds ...

I have heard this argued over by some quite knowledgeable people. The key word here is "tenant" which is not defined. It could be argued that once a tenant parts with possession then the tenancy has ended. Thus the person who was a tenant is a tenant no longer, and ipso facto no application to the court can be made.

This is not a popular view of the law, but until it is appealed to a higher court, not taking action until after the tenancy will entail unknown extra risk.

[Loki117]

Originally Posted by Esio Trot

I have only read the above post, and did not attend the hearing. However,it seems that the judge would have dismissed the case under s214 (1) of the Housing Act 2006: I have heard this argued over by some quite knowledgeable people. The key word here is "tenant" which is not defined. It could be argued that once a tenant parts with possession then the tenancy has ended. Thus the person who was a tenant is a tenant no longer, and ipso facto no application to the court can be made.

This is not a popular view of the law, but until it is appealed to a higher court, not taking action until after the tenancy will entail unknown extra risk.

I have seen a bit of a counter argement to this "tenant" after the tenancy has ended millark.

1) If you are no longer a Tenant of the landlord then you are no longer liable for any deductions from your deposit as of the minute you leave the property. Most AST's say the tenants obligations ... you are no longer a tenant.

2) If you have moved to another rental property even with a different landlord .... you are still a tenant right? If he wants to say nowhere in the Housing act does it say that you should be paid after tenancy then nowhere does it have to say you need to be a current tenent of the defendent ... you could be a tenant of somewhere else no?

3) Also 214(1) Says "Any relivent person" as an ex tenant you are THE relevent person! There where so many holes in the judges decision he should have been struck off or whatever it is you do to judges!

[MrShed]

The problem is that it is the judges you have to persuade of this, not us I think I probably speak for all of us when I say that we KNOW it is unreasonable for a judge to read it in this fashion - as Esio says, it is an unpopular view, but one that will not be eliminated entirely until it is established in case law through the court of appeal.

[Loki117]

Originally Posted by MrShed

The problem is that it is the judges you have to persuade of this, not us I think I probably speak for all of us when I say that we KNOW it is unreasonable for a judge to read it in this fashion - as Esio says, it is an unpopular view, but one that will not be eliminated entirely until it is established in case law through the court of appeal.

Mr Shed i'm not sure if you have seen my case its awaiting a court date. My deposit was secured and I was given a cert but when it came to disputing the deposit the TDS pointed out there where no clauses as they required in my AST and that they hadnt given me the prescribed information. Do you think this is a case that could be won under the initial requirements section?

[Esio Trot]

Originally Posted by Loki117

I have seen a bit of a counter argument to this "tenant" after the tenancy has ended millarky.

I am not saying that I agree with the judge, but if you bear with me, I'll play devils advocate.

Originally Posted by Loki117

1) If you are no longer a Tenant of the landlord then you are no longer liable for any deductions from your deposit as of the minute you leave the property. Most AST's say the tenants obligations ... you are no longer a tenant.

Trouble is, and I was not specific enough, s214 of the Housing Act refers to "the tenant", not "a tenant". I would be difficult for anyone to bring concepts of general contract law into this poorly drafted legislation.

Originally Posted by Loki117

2) If you have moved to another rental property even with a different landlord .... you are still a tenant right? If he wants to say nowhere in the Housing act does it say that you should be paid after tenancy then nowhere does it have to say you need to be a current tenant of the defendant ... you could be a tenant of somewhere else no?

As I said above, the Act writes about THE tenant, which is a specific person.

Originally Posted by Loki117

3) Also 214(1) Says "Any relevant person" as an ex tenant you are THE relevant person! There where so many holes in the judges decision he should have been struck off or whatever it is you do to judges!

Sadly, not so. The term "relevant person" is given a definition in s213(10),

"relevant person" means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant.

Thus as you will see, a relevant person cannot, according to the definition actually be the tenant, or even the ex-tenant.

In a number of cases at the moment, the outcome differs from what this government intended. And whereas the intention of the government may be clear, the law as drafted does not reflect this.

To quote Mr Bumble in Oliver Twist "If the law supposes that, the law is a ass—a idiot."

[MrShed]

Stuza is the man to ask about that as he has a case almost exactly the same and has consulted with a solicitor regarding it

[Loki117]

Hey Esio I fully agree this sort of sparring is really good for before a court case I think as you get the opposite side of every argument without losing the case.

We should see both sides of this so to put my point across.

3) Relivent person could indeed be you as it is someone who gave the tenant the deposit as they are saying you are no longer the tenant for the purpose of that sentence at least you are most certainly the person who gave the tenant the deposit (yourself) :o)

They may be able to argue that you arent "The Tenant" anymore but thay can't argue that you werent the supplier of the deposit

"relevant person” means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant

Well you paid the deposit on behalf of yourself if they refuse to accept you are the tenant in the arrangement then you are the person who gave the money to the tenant.