Scottish tenants who have not been notified which of the three tenancy deposit schemes has been used to protect their deposit are entitled to claim damages.

The court is empowered to make a penalty award of up to three times the amount of the deposit, to be paid by the landlord to the tenant, where the landlord has failed in the duty to protect deposits in one of the three approved schemes. This is in terms of Regulation 10 of the Tenancy Deposit Scheme (Scotland) Regulations 2011.

Despite this law being introduced to protect tenants, over half of tenant deposits have yet to be protected. This was covered in yesterdays "Scotland on Sunday" - google search "call for action on tenant deposits"

The agency featured in the paper, O'Neill lettings in Edinburgh and Glasgow, (run by disqualified director Ralph Weir and his family) has told tenants it will not be using the scheme and you can read more about this agency by searching oneill deposits on google.

This is the Scottish Government link on 'Safeguarding Tenancy deposits': http://www.scotland.gov.uk/Topics/Built-Environment/Housing/privaterent/government/SGTD1

and this is the Scottish Government link on 'Private Renting': http://www.scotland.gov.uk/Topics/Built-Environment/Housing/privaterent

and this is the link to the Scotland on Sunday article in post#1, http://www.scotsman.com/scotland-on-sunday/money/call-for-action-on-tenants-deposits-1-2992324

I have recently lodged a summary application in relation to non filing of my tenancy deposit in one of the approved schemes in Scotland. The hearing is taking place in December, I would be happy to provide an update after the hearing has taken place.

I have recently lodged a summary application in relation to non filing of my tenancy deposit in one of the approved schemes in Scotland. The hearing is taking place in December, I would be happy to provide an update after the hearing has taken place.

Hi Lauryn,

I'm having trouble finding solicitors who specialise in this area. Would you be able to name the solicitors you're using for your summary action?

Thanks!

Hi Lauryn,

I'm having trouble finding solicitors who specialise in this area. Would you be able to name the solicitors you're using for your summary action?

Thanks!

Hello,

I haven't appointed one, so far I've managed the process myself.

Thanks,

Lauryn

I haven't appointed one, so far I've managed the process myself.

That's interesting, I thought you needed one to lodge the action. Are the court pretty helpful then?

CHeers, Alex

That's interesting, I thought you needed one to lodge the action. Are the court pretty helpful then?

CHeers, Alex

They are reasonably helpful. The people I dealt with weren't legally trained and did make this clear but they were good. I have a background in law so understood the process enough to lodge the action. It is a little trickier than something like a small claims action but it's doable. PM me if you need any more information.

Thanks,

Lauryn

They are reasonably helpful. The people I dealt with weren't legally trained and did make this clear but they were good. I have a background in law so understood the process enough to lodge the action. It is a little trickier than something like a small claims action but it's doable. PM me if you need any more information.

Thanks,

Lauryn

For some reason the system won't let me send a PM.

I do have a question about how the law would be interpreted, which I'm hoping to get some advice on. I'm not asking you directly Lauren, but I thought it made sense to add it to this thread.

When we asked our landlady about TDS a few weeks before moving out (yesterday), she did register the deposit. This is however over a year late, she only did it because we asked about it, she refused to apologise, and she blamed the council for not telling her she had to do it! She also has supplied incorrect details to the TDS, namely the address and the tenancy start date are incorrect.

The late registration means we cannot start the reclaim process for 18 days, as the TDS has an anti-fraud time limit of 20 working days from deposit to reclaim.

The legislation seems to be designed to penalise this sort of, quite literally, irresponsible landlord. I'm worried that Scots law will interpret her registering the deposit as the end of the matter though. Is it still worth pursuing her at the sheriff court for the failure to register? I suspect she will continue to treat tenants with this level of disrespect if nothing is done.

For some reason the system won't let me send a PM.

 

I do have a question about how the law would be interpreted, which I'm hoping to get some advice on. I'm not asking you directly Lauren, but I thought it made sense to add it to this thread.

 

When we asked our landlady about TDS a few weeks before moving out (yesterday), she did register the deposit. This is however over a year late, she only did it because we asked about it, she refused to apologise, and she blamed the council for not telling her she had to do it! She also has supplied incorrect details to the TDS, namely the address and the tenancy start date are incorrect.

The late registration means we cannot start the reclaim process for 18 days, as the TDS has an anti-fraud time limit of 20 working days from deposit to reclaim.

 

The legislation seems to be designed to penalise this sort of, quite literally, irresponsible landlord. I'm worried that Scots law will interpret her registering the deposit as the end of the matter though. Is it still worth pursuing her at the sheriff court for the failure to register? I suspect she will continue to treat tenants with this level of disrespect if nothing is done.

It needs to be registered with an appropriate scheme (one of 3 in Scotland) and within certain timescales. Then, information must also be provided within certain timescales. Any breach of the above would allow you to pursue her through the court under the regulations.

Please see here re dates:

http://www.scotland.gov.uk/Topics/Built-Environment/Housing/privaterent/landlords/tenancy-deposit-schemes

It needs to be registered with an appropriate scheme (one of 3 in Scotland) and within certain timescales. Then, information must also be provided within certain timescales. Any breach of the above would allow you to pursue her through the court under the regulations.

 

Please see here re dates:

 

...

I was led to believe, though not by an expert, that the court may be lenient because she did register in the end, although late and supplying incorrect details.

Having read through the actual regulations now, which are very clear, I am confident she has broken the regulations and the court could not find otherwise.

What they choose to award in sanctions isn't predictable, but if my costs are paid and I've made her take responsibility for her obligations I'll be happy

I have just discovered that I have been looking at the Summary Cause procedures, which are straightforward and designed for the layman, whereas I need to make a Summary Application, which uses a lot of legal language. I will have to find a tame solicitor. I cannot find any examples of this form for TDS actions.

Thanks!

I was led to believe, though not by an expert, that the court may be lenient because she did register in the end, although late and supplying incorrect details.

 

Having read through the actual regulations now, which are very clear, I am confident she has broken the regulations and the court could not find otherwise.

 

What they choose to award in sanctions isn't predictable, but if my costs are paid and I've made her take responsibility for her obligations I'll be happy

 

I have just discovered that I have been looking at the Summary Cause procedures, which are straightforward and designed for the layman, whereas I need to make a Summary Application, which uses a lot of legal language. I will have to find a tame solicitor. I cannot find any examples of this form for TDS actions.

 

Thanks!

Yes it's a summary application. You need 'Form 1' to lodge your action.

http://www.scotcourts.gov.uk/taking-action/summary-applications

Thanks

Lauryn

Yes it's a summary application. You need 'Form 1' to lodge your action.

...

 

Thanks

Lauryn

I did start drafting a Form 1, however...

Unfortunately my partner has vetoed the idea of suing our ex-landlady, she just wants to put the sorry affair behind us. I can think of no better way to do that than by bringing an action, but she doesn't want to be reminded of the stress and anger this person caused us any more.

If there was some way of just easily reporting the various regulations she broke and duties she ignored, that would be great. Having to write a court document, and take action in court, is absurd. I don't need the money, I just want her to be told in no uncertain terms how crap she is at being a landlord.

I'm still very interested in how your case goes, please share the experience for everyone here.

Thanks, Alex

I did start drafting a Form 1, however...

 

Unfortunately my partner has vetoed the idea of suing our ex-landlady, she just wants to put the sorry affair behind us. I can think of no better way to do that than by bringing an action, but she doesn't want to be reminded of the stress and anger this person caused us any more.

 

If there was some way of just easily reporting the various regulations she broke and duties she ignored, that would be great. Having to write a court document, and take action in court, is absurd. I don't need the money, I just want her to be told in no uncertain terms how crap she is at being a landlord.

 

I'm still very interested in how your case goes, please share the experience for everyone here.

 

Thanks, Alex

I reported my ex landlord to the local council as I don't believe he is 'fit and proper' nor understands his duties as a landlord.

I initially received a really snooty response saying he basically met all requirements when he registered as a landlord, therefore they won't be taking action, but do keep them informed of the outcome of the hearing.

Then, yesterday out of the blue, I received an email from one of the senior housing officers who appears to have investigated my complaint and visited the property.

Few points to note - I moved out mid June from this property. They visited at the end of November. My issues were - withholding part of my deposit unfairly, not registered it in an approved scheme, and not treating dampness in the property. I have messages and a letter from him referencing the dampness, plus photographs of the affected areas (and ones of woodlice, yuck).

This is the email I received yesterday:

Good afternoon Miss X

Re your below complaint regarding the damp and unsafe condition of the above property.

I met with the landlord, Mr X, at the property on 29 November 2013 at 3-30pm. I carried out an inspection of the property and could not find any signs of damp or mould nor could I find any part of the property which could be considered unsafe.

With regard to Mr X being a fit and proper person to be a landlord, the outcome of your impending court case may have a bearing on same. I'd therefore be obliged if you could let me know the outcome.

Regards

Waste of time!

So, I took my ex landlord to court for non compliance with the Tenancy Deposit Schemes (Scotland) Regulations 2011 and I won. I represented myself so if anyone plans to go down this route, feel free to ask any questions.

Hi LaurynM

Well done on your win.

CAG would prefer that any information is placed in the open forum rather than by PM as this information/advice may be helpful to many others.

It may be helpful to others if you could give a brief outline of the steps that you took minus anything identifiable.

Once again well done.

Can you detail as much as possible what happened (without giving out personal details) You would be surprised how many other people will get help from it even if they don't post

Yes of course.

I moved into the property in question in August 2012 and moved out in June 2013. The deadline for protecting my deposit was therefore 13 November 2012, and information should have been provided to me within 30 days of this date.

When I moved out half of my deposit was repaid in cash in person on the moveout date. I asked the landlord if he had placed it in a deposit scheme and he said no. When I had given him my notice (verbally on the phone and writing) to move out I also asked him to advise what scheme my deposit was in so that I could reclaim it (at this point I strongly suspected it wasn't protected anywhere as he didn't seem to do anything by the book, i.e. numerous visits in and out of the property I was renting, using water and cloths etc from my property when he was working out the back in the garden, basically not really behaviour you would expect). He never let on it was with any of the 3 schemes in Scotland and after contacting each of them, I was satisfied it was still with him.

4-5 weeks after moving out of the property he had still retained half of my deposit, but wouldn't answer the phone, and I was temporarily living with my parents 150 miles away so couldn't see him in person. After phoning from a different number I tracked him down, and he gave me some speech about there being issues in the property and an inventory had been done, with a letter on its way to me from the letting agency he initially used to find and place me as the tenant. A week later a handwritten letter from him appeared detailing nonsense about "problems" in the property and detailing that he was retaining part of my deposit.

I then wrote to him, twice - one letter detailing that I believe he failed to comply with the Tenancy Deposit Schemes (Scotland) Regulations, and the second disputing the retention of part of my deposit. I also noted that if the balance wasn't repaid within 14 days, I would have no option but to take legal action to recover the balance, and also to claim for not protecting my deposit. I received no response or any further contact.

It is important to note that you only have 3 months from moving out of the property to make a claim in relation to the protection of your deposit, which left me with a date in September to lodge an action. I gave the landlord the benefit of the doubt and waited until early September, around 6 weeks after sending the letters - no response.

I lodged a summary application in the sheriff court using a Form 1 (http://www.scotcourts.gov.uk/taking-action/summary-applications). From memory it was £80-90 (I don't have the paperwork to hand to check). The legal jargon is quite daunting if you are unfamiliar with it, and as helpful as the staff in the clerks office as, they make it clear they are not legally trained and cannot really advise. They did proof read my forms for me and offered a few suggestions with wording, but not with content as such. I have a background in law/criminology and a degree in this area so just about managed to piece it together.

A date came through very quickly for a hearing, and due to being on holiday, by the time I received the paperwork, I didn't have enough time to appoint a sheriff officer to serve the writ and warrant and give the defender 21 days notice. I had to phone and write to the clerks office requesting a new hearing, and thankfully they allowed it.

We finally went to court on 13 December. The defender appeared in person with no legal representative. What I would say about court is it is daunting, but don't be afraid. I have been in court before purely observing as part of my studies years ago so had a faint idea, but basically there is a sheriff sitting with 2 clerks below who call the cases, set new dates, and generally run the business of the court for the sheriff. The pursuer stands on the right facing the sheriff (in my case anyway, apparently this differs in different courts/actions), and the defender on the left. From my observation I believe that a number of cases are set for the same time, ie. 10am, 11am etc, and they just call them in the order they have. It only took around 7-8 minutes to hear my case. My advice is dress smart and be early. You might not get called until a while later but be on time or early, not late. Address the sheriff as 'my lord' and stand in front of him. Speak clearly and loudly.

Anyway, the defender appeared and didn't really know what was going on. After I served the papers on him (this cost £70 something plus VAT, in the region of £90 for me), he still didn't contact me to settle and if I'm honest, I didn't think he would appear. He mumbled about having spoken to a solicitor and being told by them to appear in person to defend, and was generally confused and mumbled a lot. The sheriff stepped in and told him he had 21 days to defend in writing if he wanted to do so, which he accepted. Thanks to this, a new hearing was set for 4 weeks later (plus the Christmas break), making the new date 17 January 2014.

This time he didn't appear. He lodged a handwritten letter on 15 January, received on 16 January, which talked a lot about the scheme supposedly not being in place when he rented the property to me, he used a letting agent who didn't tell him (it was clearly stated in my tenancy agreement which he signed), and things about me moving out the property early and stating why he retained part of my deposit. Basically, a lot of things which were irrelevant to the fact that he just didn't protect my deposit, simple.

The sheriff ruled in my favour and awarded 3 x the deposit witheld as a basis for calculating what I was awarded. I must note that what he retained isn't really relevant, but this was used simply as a basis. It worked out as 1.25 the amount of my original deposit, plus expenses. It is in the region of £900 I should receive, although actually getting this is another matter. £750 is the amount that must be owed to a creditor that you can't pay before they can lodge an action for bankruptcy, so really he needs to pay sharpish to avoid this risk.

I hope that helps!

Thanks.

Hi LaurynM

Thank you for the update I am sure our caggers will appreciate this information as it will help so many others.

Thank you

The limit for proceeding to seek a sequestration order (bankruptcy) against an individual is in fact £3000.

It is a difficult area without a solicitor or any legal background, which is frustrating.

The limit for proceeding to seek a sequestration order (bankruptcy) against an individual is in fact £3000.

My apologies, I believe I've confused the limit with E&W.

Hi Lauryn, congratulations on your win! I am in a similar position, started an application myself but things have got a bit complex since the defenders claim a time bar on the application. It's strange, to do with trying to exit the lease early, I am still owed last two weeks rent etc etc. the upshot is that they are trying to infer that the time bar should be taken to mean the date of intimation to the defender, not the date when the initial writ was lodged. Do you have any knowledge of these matters? The Gov legislators say that it is up to the courts to interpret what is meant by 'application to court'. As a layman and aggrieved tenant I assumed that would mean the date you first applied to the court for a warrant but what do I know? Anyway what should be a simple thing, as all summary applications are intended to be, is possibly descending into a complex proof of what was understood by termination of contract and possibly a legal debate about what is understood by 'application to court'

I am, however, deeply encouraged by your case and the other successful Edinburgh case recently.

Cheers! Jonathan

Hi Lauryn, congratulations on your win! I am in a similar position, started an application myself but things have got a bit complex since the defenders claim a time bar on the application. It's strange, to do with trying to exit the lease early, I am still owed last two weeks rent etc etc. the upshot is that they are trying to infer that the time bar should be taken to mean the date of intimation to the defender, not the date when the initial writ was lodged. Do you have any knowledge of these matters? The Gov legislators say that it is up to the courts to interpret what is meant by 'application to court'. As a layman and aggrieved tenant I assumed that would mean the date you first applied to the court for a warrant but what do I know? Anyway what should be a simple thing, as all summary applications are intended to be, is possibly descending into a complex proof of what was understood by termination of contract and possibly a legal debate about what is understood by 'application to court'

I am, however, deeply encouraged by your case and the other successful Edinburgh case recently.

Cheers! Jonathan

Hi Jonathan,

I'm not quite sure what you mean in terms of the time bar. With this type of application, you have 3 months from when the lease ended to lodge your application. For clarity, my lease ended (2 months early) on 19 June and I lodged my application and had it stamped in court on 17 September - within the 3 month time frame. Nothing was served on the defender until later in the year due to turnaround times etc with the court but it was lodged in time.

An update on my case - I have now instructed the sheriff officers who served the defender in my case with the citation to issue a notice of charge to recover what I was awarded, plus their fee. The defender will have 14 days to comply with this before further action is taken. Fingers crossed he doesnt make this any more difficult than it needs to be.

Thanks,

Lauryn

Hi LaurynM

Got my fingers crossed for you, please keep us updated and if you need any further help you know where we are.

Hi Lauryn,

Thanks for your reply, I must say I am very encouraged by it. I shall try to explain the situation I face. The defender's solicitor is arguing a time bar on the the application because in his 30 years experience, dealing with personal injury no doubt, he feels that a time limit is taken to mean that the writ must be lodged, warranted and intimated or served within the given period. This may be the case for personal injury, I dont know, but what is certain is that this is new legislation where the legal interpretation of the terms 'application to court' is yet to be fully understood. The Sheriff at the last hearing seemed to want a 'proof before answer' to sort this out. It is becoming quite intimidating and I am supposesd to get legal representation to take this on now as it is supposedly beyond a lay person to argue in such a debate.

However, if you say that you applied to court within a couple of days of the expiry of the limit, then that is exactly like my case. And if the warranting and serving proceedure is not taken as being within the limit (which surely it can't as you found that this can be a longer period which is not clearly defined) then the date stamp of the clerks office when they received the application is the only important date.

For clarity, my dates are; lease supposed to end two weeks early on 5 June and I applied to court and got a stamp on 3 September. He did not repay the two week early amount but repaid as if the lease at expired at its full term of 19 June. Which is obviously why I got upset and found out he had not complied with legislation. I also wrote and gave him the opportunity to rectify but also got no reply and he even states in Answers that he didn't receive this letter, which is impossible since I sent it to his home address and the address of the property I rented where he regularly picked up mail.

It is now my feeling that I don't need to worry too much about this time bar, the legal debate on this subject or having expensive representation.

I am a little disappointed that you only got three times the amount owed, it should really be three times the deposit. However it is a good result.

Anyway, I am supposed to attend on 21 Feb for an evidential hearing and maybe a proof before answer about the time bar. I am running out of time and was going to seek and adjournment because I haven't been able to get suitable representation for that day. What do you think I should do? Given your information about the time limit I am totally encouraged that this thing has got totally carried away and I should just appear and get on with it. It has been a long unnecessarily protracted affair in which I have been made to feel somewhat incompetent. It is intimidating but I will not be cowed!

Yours, Jonathan