TDS non compliance - suing Landlord

[lefont]

Hi,

 

I have read across the history of messages on these forums and are going to issue a county court claim against my landlord for non protection in the TDS for a tennancy Jan-June 2008. My landlord withheld all of my deposit and even claimed they were owed more on top. I asked for confirmation of whether the money was held in the TDS and the reply was that I broke the contract by damaging the property and not leaving it as it was found. It is clear the deposit was never held in a scheme. In the reply from the LL, the claim for additional money from me was never mentioned which appears very dubious in the beginning.

 

I am going to issue a letter before court accompanied by a completed N208 form. The deposit was £765 which i am seeking and in additon 3 times the amount £2295 as compensation as per the Housing act section 214. The total claim is £3060. Do I calculate interest on the £3060 or just the £765 deposit from the time it was due back until date of filing to court?

 

The landlord gives the impression they will make a counter claim for damage of the property and dirtiness of the property. A claim of £300 for professional cleaning of a 2 bedroom flat was one of the charges totalling £1450. Whilst there was scope for some deduction for cleaning and a bit of damage the total charge was very excessive.

 

Based on the Stankova v. Glassonbury 10th March 2008 case a counter claim will not apply in my case either as a strict liability penalty was ordered therefore non provision for a counterclaim.

 

Am i doing the right thing?

[MrShed]

Interest on the £765 from the date it was due back.

[lefont]

Many Thanks, with the total sum equaling more than £3000 am I right in thinking I would have to pay the following to get my case into a court room?

 

£108 for starting my claim

£35 Allocation Questionnaire fee

£300 hearing fee

 

It seems to be getting very expensive and if I lose and have to pay costs we are talking about £500 lost.

 

If these costs are correct am I right in thinking I would get all this back from the defendant if i was to win? The size of the claim is making me think is it worth hiring a solicitor?

[MrShed]

If the deposit is still not held in a TDS, I fail to see anyway in which you can lose other than if you presented your case in a p**s poor fashion

[Planner]

The fees are different for a N208 (Part 8 ) claim. You should ring your local county court and ask.

[lefont]

The Court fee is £108 according to my local court. I have sent a letter before action giving LL 14 days to return deposit or I will file a court notice. I will keep you informed of developments as potentially this could be a case that goes to court.

[Planner]

The Court fee is £108 according to my local court. I have sent a letter before action giving LL 14 days to return deposit or I will file a court notice. I will keep you informed of developments as potentially this could be a case that goes to court.

 

Usual pi*s poor county court response. You have to remmeber that the majority of people that work in court admin would be working in McDonalds instead if they had left school with any qualifications.

 

£108 is the cost to submit a N1 claim for between £3000 and £5000.

 

Its definatley more like £120 or £150. Its very important that you get to the bootom of this as that same court that told you its £108 will quickly return the form once submitted saying that an incorrect fee has been paid.

[Planner]

Update. Its £130.

[lefont]

Having questioned the previous amount to file a N208, I've been sent the following:

 

"To issue a Part 8 Claim the fee is £150.00. If you wish to issue a specified claim then the fee is £108.00 this is for a claim up to £5000.00"

[Planner]

Hmmmm..... you have a range of fees to choose from then!

 

Let us know if the £150 is correct!

[lefont]

I wrote a letter before court asking for a TDS number which has not been given nor receipts which I asked for additionally. Whilst there was some scope for deduction of deposit I had no opportunity to use the TDS for arbitration. The deposit was never held in a scheme and the tennancy was from 1st Jan 2008, what should be my next response to this be?

 

 

(From the LL)

Re: Letter before action

I am writing with reference to your correspondence dated the 19th August 2008.

Whilst I appreciate that you are keen to recover the security deposit paid as part of the tenancy agreement far xxxxxxxx. I am disappointed that you still feel it necessary to continue to deny the damage caused by misuse and neglect

As we have reached the stage of court action I have again sought legal advice from the following solicitor xxxx

Xxxxx has considered the evidence (photos) that I have to support my case and is in agreement with me that it will be sufficient in a court of law to support my decision to withhold your security deposit. With this advice in mind I am new prepared to attend a court hearing if necessary and I acknowledge receipt of claim Form (Part 8).

As requested in your letter 19th if August 200B, I am under no obligation by law to provide you with receipts for repairs and replacement of damaged goods. As Landlord I have the right to repair and replace items in the property as I see fit.

I draw your attention again to the following clause in our tenancy agreement for xxxxxxx

DEPOSIT'.

(a) £765.00 payable on or before the 1st January 2008 such to be retained by the Landlord as security for performance of the Tenant's obligation andto be repayable to the Tennant only after the end of the Tenancy and after deduction of any sums required to compensate the landlord whether wholly or in part any breach of obligation on the Tennant’s part

Following advice from my solicitor, this is sufficient to support my evidence in court; regardless of your repeated attempts to identify a similar case in which the tenant was successful in their claim. Such cases only exist where the landlord in question was in the wrong.

Upon receipt of your County Court claim form, my solicitor has contacted the court with reference to our dispute and has been advised that the court are aware of no such case (the lack of an official claim number had proved this anyhow). The court representative was at a Joss as to how you expect to recover your security deposit whilst photographic evidence of damage and neglect is available. as such, L have been advised to be aware of the potential for false claims as a means of forcing return of a deposit,

Many thanks again for your correspondence; T understand your persistence though I am not willing

to discuss this matter with you any further.

[MrShed]

A court representative would say no such thing. The guy is talking utter rot and has ignored the TDS aspect which is cast iron IMO.

 

The time for letters has passed, proceed to sue for 4 x value of deposit in total.

 

Lets just pick apart his letter though, for a laugh

 

As requested in your letter 19th if August 200B, I am under no obligation by law to provide you with receipts for repairs and replacement of damaged goods. As Landlord I have the right to repair and replace items in the property as I see fit.

WRONG!

 

Such cases only exist where the landlord in question was in the wrong.

Like this landlord perhaps?

 

my solicitor has contacted the court with reference to our dispute and has been advised that the court are aware of no such case

So? Doesnt stop you now submittiing it!

 

The court representative was at a Joss as to how you expect to recover your security deposit whilst photographic evidence of damage and neglect is available.

The court representative will not, and is not allowed to, comment on the legalities or otherwise of any particular claim. This is simply a lie.

 

as such, L have been advised to be aware of the potential for false claims as a means of forcing return of a deposi

This I dont even understand.

 

I personally doubt that he even has a solicitor in all honesty - I cant imagine a solicitor would allow such a farcical letter to be sent. At the very least, the solicitor does not appear to have any kind of knowledge of housing law.

 

Certainly sounds as if this one will be going to court - please keep us informed!

Edited August 30, 2008 by MrShed

[callumsgran]

What's his name?

Lenny Henry? Sounds a right comedian to me

 

Continue with your claim, regardless of what he says he has broken the law and he is hoping you will drop the case

He thinks you're as thick as he is, prove him wrong!

Edited August 30, 2008 by callumsgran
sp

[RentedAndRankled]

lefont; Clauses in a contract can not override the law of the land, therefore even though your contact says the LL will keep the money he is not legally allowed to do so because, if it is an AST, it must be lodged with a TDS.

 

As the LL said he does not wish to discuss this further in my opinion (and I'm not legally trained) you have grounds to start you claim as pre-action negociations have faltered.

[Planner]

TDS non-compliance hasnt got anything to do with the condition that the property was left in. You are suing because the deposit has not been placed, as required by law, in a TDS scheme. How can a defence to this therefore be that there was damage to the property?!

 

You must be very very clear that this is not a 'traditional' deposit dispute claim but a claim for non-tds compliance. You DO NOT have to get into discussions with the landlord about damgae here and a dirty carpert there.

[MrShed]

Agree Planner - however, all I would say is that TDS sghould be the main thrust of the claim, but as a secondary part you absolutely should mention the inability to prove damages due to lack of inventory etc. But this is DEFINITELY secondary.

[RentedAndRankled]

Personally I'd leave the property condition out of the claim alltogether.

 

The LL may mention it in their defence, or may try to make a counter claim, in which case it can be addressed in response to that, but make the claim about the TDS and only the TDS. Theres no point adding bits about the property condition to the claim because it only widens the scope that the claimant can be challenged on and makes it a valid topic for discussion at the hearing.

[MrShed]

I disagree - the landlord will probably counterclaim anyway.

 

The important thing to remember here is that TDS scheme or non TDS scheme, JUSTIFYABLE and PROVABLE damages are still payable by the tenant. So the tenant could win the case, receive the deposit AND 3 x the deposit back, but then lose a counterclaim for damage. It is important, IMO, to be on the front foot with regards the almost certain counter claim.

[RentedAndRankled]

I can see where you're coming from, in my view it's best to keep court actions as focused as possible to avoid complications in the courts, so if the T doesn't mention it in the claim it means that any mention of it by the LL in the defense is irrelevant.

 

If the LL wishes to start a counter claim for damages then, in my view, that is the place to address it, because, as you and planner have already agreed, non-compliance with the TDS is a very different matter to any dispute over the condition of the property.

 

I'm not saying that the T should shirk resposibility for damages, I'm just saying that it should not be raised by the T as part of their initial claim, and, if the T wins at the hearing and the LL doesn't make a counter claim, the T may want to make a good will gesture to cover what they feel is reasonable.

[MrShed]

Hmmm fair point - I can see both sides. But yes you could be right that if the landlord countersues then is the time to mention it.

[Esio Trot]

I have read across the history of messages on these forums and are going to issue a county court claim against my landlord for non protection in the TDS for a tennancy Jan-June 2008. My landlord withheld all of my deposit and even claimed they were owed more on top. I asked for confirmation of whether the money was held in the TDS and the reply was that I broke the contract by damaging the property and not leaving it as it was found. It is clear the deposit was never held in a scheme.

Bear in mind that there has been one case where a tenant, having vacated the property, tried to claim under TDS legislation. The case was lost as the judge ruled that the Housing Act speaks of a tenant bringing an action, and as the tenant had vacated they were no longer a tenant.

 

Whether the above case is a correct interpretation of the law is not for discussion here. It is the mere fact that even a "sure" case can be lost in a court of law. Please take this into account when filing your claim.

[dragon21]

Do you have details of this case as it's very relevant to my situation i.e. tenancy has ended.

[RentedAndRankled]

I'm aware of at least one case that counteracts this where the T was given the award even though the application to court was made after the tenancy ended.

 

The only successful defenses on the LLs part seem to be;

 

- The tenancy was not an AST (and thus TDS rules don't apply).

- The deposit was protected before the application to court was made (and thus the initial requirements of a scheme were complied with at the time of application).

 

The only grey area seems to be;

 

- If the application to court is made and the LL subsequently protects the deposit.

[lefont]

I am going to file a Part 8 claim this week especially given some of the replies to the letter I posted on here. I am happy to gamble approx £150 plus costs for a strong possibility of being awarded over £3k having lost £800 on my deposit being withheld. I can see the LL counterclaiming if I win but no way they can prove anything like £3k of damage/cleaning was due. This will be my first experience of using a court, Thanks for all the advice to date.

 

I will keep you all posted on developments.

[lefont]

My only concern is that it if a counterclaim is made as a result of me winning, will i be issued with a CCJ? I am not too familiar with the concept of being awarded a CCJ other than this has a huge impact on your ability to obtain credit in the future.

 

(I am very aware that nothing is ever a forgone conclusion however this is the only thing making me uneasy of making a claim)