I issued a small claim for my deposit before knowing about Tenancy Deposit Scheme

**Patrick19** · 2nd March 2009 13:14

Hi everyone,

I rented a room in a 2 bed flat for 5 months with a guy to whom I had an AST with. After 4 months he very rudely gave me notice (1 month) and I had to go. He gave me back only £500 out of my £700 deposit pretexting in a nutshell missing items which I never took and unappropriate bills. No inventory was signed (btw does it matter?).

A few month later I issued a small claim icon

against him to get the rest of my deposit (to which he counter claimed and asked me to pay extra rent because my friend (who lost her appartment at this time) stayed in a couple of weeks whereas he gave me his consent !).

Anyway while doing futher investigation I found out about the Tenancy Deposit Scheme and the fact he did not protect my deposit at all.

My question is how do I handle the current claim and how can I sue him for not protecting my deposit ? Can it be done under the current small claim ? Will the court automatically impose the fine of 3 times the deposit ?

Thanks a lot

**flyingdoc** · 2nd March 2009 13:17

The court will not do anything that you have not asked for - I would personally withdraw the claim in the small claims court and re issue for the failure to protect the deposit.

dont forget that you are entitled to your deposit PLUS the 3x so in total you should get 4x your deposit back.

**MrShed** · 2nd March 2009 13:18

On what date did you move in? On what date did you pay the deposit?

I consider it very unlikely that you had an AST, regardless of what the agreement said, as you lived with the landlord. This would make you a lodger/licencee, which has no TDS protection. Note that this is COMPLETELY IRRESPECITVE of what the agreement itself says - a tenancy is based upon the nature of the tenancy, not the nature of the agreement.

**MrShed** · 2nd March 2009 13:18

Ooops re-read - I might have misread your first line.

DID you live with the landlord? Was he resident in the same property?

**flyingdoc** · 2nd March 2009 13:24

good point - missed that

**Patrick19** · 2nd March 2009 15:04

Thanks guy for your quick answers.

The guy does not own the flat. I think he was subletting to me. The contracts says AST and the guy describes himself in the contract as "Property manager"...

**MrShed** · 2nd March 2009 15:10

Irrelevant. Did the landlord (i.e. the person you signed the contract with) live in the same property?

**Patrick19** · 2nd March 2009 15:10

Yes

**MrShed** · 2nd March 2009 15:12

OK - in which case you are not covered by the HA 2004, and the deposit did not need to be placed in a scheme I am afraid.

**Patrick19** · 2nd March 2009 15:21

That's really a shame

...

By the way it might be that he does not have the lease for the flat himself. If I remember well he moved in with a friend who had the lease with a letting agency. His friend left and he never changed the contract with the agency. He's kind of subletting on a flat he has no rights really. Does it change anything ? I guess it's a different subject...

**MrShed** · 2nd March 2009 15:24

It doesnt unfortunately. Ultimately, YOUR landlord is whoever you have the agreement with to let you the property. This is usually the owner of the property, but not always - as in the case with subletting.

**Patrick19** · 2nd March 2009 15:37

So in a nutshell the TDS only works for letting agency and landlords/who ever I have the contract signed with as long as that person does not live with me ?

**MrShed** · 2nd March 2009 15:47

Well, in a nutshell, the TDS scheme applies only to ASTs. This is not an AST, for the reason that the landlord was living with you - but there are other reasons that can cause a tenancy not to be an AST.

**Patrick19** · 2nd March 2009 17:30

I see... So is this contract really valid/legal ? Is there anything I could do about this ?

Thank you.

**MrShed** · 2nd March 2009 17:31

Continue exactly what you are already doing to retrieve the deposit.

Thread: I issued a small claim for my deposit before knowing about Tenancy Deposit Scheme

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I issued a small claim for my deposit before knowing about Tenancy Deposit Scheme

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