I thought I ought to add something to this thread after a conversation I had with someone at the weekend.

If the court makes an award in favour of the tenant the Landord can apply for a Variation Order which, if they can show financial hardship (i.e. a lot of negative equity on the properties or low income from rent), can leave the tenant waiting for a long time for the payment.

The person who I talked to was involved in a TDS case where, at the rate of repayment the court set on the variation order, the tenant would have to wait a couple of years for the deposit to be repaid and nearly a decade (yes, nearly 10 years) for the full TDS penalty to be paid. This was all after the process of bringing the LL to court and starting to get payments from them took a year (so the T would see the deposit repaid to them 3 years after the tenancy ended).

So please remember a CCJ of any sort may not neccessarily be paid quickly and so if you need the moeny it may well be better to try and come to an arrangement with the LL.

See http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme-3.html#post1682709 for more details.

There is one case where the T lost because the LL protected the deposit before the T lodged a claim with the courts.

So far I know of no case where the LL has protected the deposit after a court claim and so it's been untested. The letter of the law appears to suggest that the T will win if the deposit is not protected at the time of application to the court (i.e. when you file your claim), but that isn't a guarantee.

I beleive the phase I'm looking for is... D'oh.

Thanks for pointing that out .

.....It is also worth noting that any such deposits MUST be "money".

Housing Act 2004, S213 part 8 defines the deposit as "a transfer of property intended to be held (by the landlord or otherwise) as security...".

Doesn't this mean that a deposit could be goods and not necessarily money.

If the move-in inventory doesn't mention the items then they'll have difficulty claiming for them because you can always argue that if the items were ment to be kept why were they not listed on the inventory so that they could be checked at moving out time?

The judge isn't at liberty to use their discretion with an award for non-TDS compliance. They can't refuse the 3x penalty just because they feel sorry for the LL, the judge can only refuse it on a point of law. If the LL can't pay then the problem is yours in so much as finding a way of getting the money from the LL and for that you can use the methods linked to in my previous post.

First off, As long as the LL hasn't put the deposit in a TDS you're pretty safe in claiming as long as the tenancy was an AST and the LL didn't live at the property. There are several methods which can be used to enforce a judgement, see the thread at http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/116744-got-judgment-how-get.html for more info.

As per the counter claim, it will most likley come down to whats in writing. Do you have move-in and move-out inventories?, copies of the rental agreement and notices served?, written copies of the agreement to move out early? because if you're claiming it in court it will need to be proven usually via written means.

This works two ways, so, for example you didn't break the locks, and you returned all the keys, unless there is a clause in tenancy agrement it's unlikley you'll be expected to pay for the lock changes.

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.

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.

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.

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.

Please see http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117572-unfair-deposit-deductions.html

If you lived with the LL your unlikley to have an Assured Short-Hold Tenancy which is what you would need to have for the TDS rules to cover you.

See section 1.2 & Appendix A of http://www.communities.gov.uk/documents/housing/pdf/138289.pdf

Blimey, looks like that clears up the confusion about deposits being protected prior to application, but it still leaves deposits being protected post-application in question.

The article does hint that the time of hearing is important, and I would agree this makes sense, because after all the aim of the court is to ensure that law is adhered to, and so handing out a penalty after the LL has already made corrective actions to ensure he complies with the law does seem a little draconian.

I think it's created a grey area (possibly to help LLs).

Taking the worst interpretation for tenants; Although 8.1 & 8.2 re-iterate the HA 2004, they do not explicitly state that a the TDS will not protect the despoit if those conditions are not met, they merely state what is in the law, whereas 4.1.4 explicitly states the deposit will be considered covered by the TDS even if the LL holds on to it.

Resoli,

One of the other schemes has their rules up at http://www.thedisputeservice.co.uk/resources/files/TDS%20A%20Rules%20of%20membership%202nd%20edition.pdf which includes (amongst other things);

"4.1.4 - Strictly speaking, protection cannot be extended to tenancies where the information specified in paragraph 14.3 has not been entered into the TDS tenancy database by the Member. This must be done within 14 days of the deposit being received by the Member. However, if the information is not entered, TDS will cover the deposit as long as it is held by a Member. But if there is a dispute at the end of the tenancy, and information has not been entered into the TDS database, the deposit will be awarded to the tenant without formal adjudication."

Which would appear to indicate they will cover the LL even if the LL holds the deposit.

Let's not muddy the waters any further here. This really is a very simple matter.

Pipps, if it really was that simple we wouldn't have already seen people failing in their court actions .

Regarding section 214(1)(a), I can only say that I wonder how the ‘initial requirements’ of an authorised scheme could possibly be met where a deposit was not introduced to a scheme at the time when it was received?

The reason is that s.212 to 214 and Schedule 10 of the HA 2004 do not require the scheme to enforce the 14 day rule as part of its initial requirements.

S214(1)(a) makes it clear that it's a schemes initial requirements which need to be breached in order make an application to court. It does not say that a breach of requirements placed on a landlord in other parts of the HA 2004 constitute grounds for an application to court for the 3x penalty.

I think there is now enough information on this thread to allow those wishing to pursue their own cases to reach their own conclusions.

 

My final advice to everyone would be that, if you find anyone on this forum touting their legal experience when responding to threads, then you should run a mile.

Completely agree, thats why I keep repeating I'm not legally qualified and my posts are my personal take on things.

Planner,

Do you know if anyone has got a TDS claim through Part 8 and the fast track?

Most of the ones I've seen have been allocated to the small claims track because the amount is less than 5K primarily because the initial deposit is less than 1250GBP.

R&R

I’ll forgive you for not being legally qualified.

Does this mean you are, or are you just a layman like I am? Unless you say you are qualified I will assume that your knowlege of the law is not formally taught and you are not legally qualified.

Firstly, in brief, the Legislator and any associated parties must at various junctures outline the basis for their legislative proposals as a fundamental part of the enactment process. In the case of the Tenancy Deposit Order 2007, we are lucky enough to have the rather useful explantory memorandum, and I’m sure you’ll find it rather interesting once you read it. New legislation simply cannot be introduced without it’s requirement and worthiness having been sufficiently demonstrated to the Lords and for this information to be made publicy available.

The explanatory notes for the TDO 2007 only cover it's modifications. Do you have a link/location of the notes for the TDS sections of the HA 2004?

You've previously stated that "The spirit of the law, and the reason for the Legislator drafting this interesting piece of legislation, is to force all landlords to undertake the handling of a tenancy deposit in the correct and appropriate manner from the commencement of the tenancy and to the end.". I would be interested to know where you have got this from.

From the various sources I've read the main benefit of a TDS comes when the tenancy ends as it ensures a means of arbitration for deposit disputes which does not require court involvement. Therefore I would suggest that the spirit of this law is to ensure that this method of arbitration is available at the end of the tenancy and if the LL protects the deposit before the tenancy ends the spirit of the law has been complied with.

Secondly, section 214(4) is specifically introduced within The Act with express reference to section 213. The preceeding section is therefore the only section that possesses any relevance to 214. In the event of an application to the Court, the requirement for the Court to order payment of the penalty turns solely on whether the provisions in sections 213(1), 213(3) and 213(6) were met at the time when the landlord received the deposit from the tenant. I really cannot see how there could be any other way to interpret section 214. It’s one of the simplest legislative provisions I’ve ever had the pleasure of reading.

I've double checked my copy of the HA 2004 and S214(4) makes no reference to S213. The only references to S213 from S214 are the following;

S214(1) refers to S213(10) for a definition of relevant person.

S214(1)(a) refers to S213(4) for a definition of the initial requirements of an authorised scheme, and refers to S213(6)(a) to cover the provision of information to the tenant (but it does not refer to S213(6)(b) which specifies the 14 day timeframe).

S214(2)(a) refers to S213(6)(a) again to cover writen notice to the tenant (but again it does not refer to S213(6)(b) which specifies the 14 day timeframe).

S214(5) refers to S213(7) allow the court to issue an order to recover non-monetry deposits.

S214(6) refers to S213( 8 ) for a definition of deposit.

If you can provide me with a reference where S214 refers explicitly to S213(6)(b) which states the 14 day timeframe I would be grateful, otherwise the more I look at it the more I come to the conclusion that applications for the penalty made under S214 may not be successful because the 14 day timeframe is not specified or referenced as grounds for an application to court as stated in S214(1).

Furthermore, a Judicial decision to not award costs is also one which can be appealed. There is absolutely no requirement under the Housing Act 2004 or any supposed expectation of conduct for the tenant to attempt to coerce or mediate with the landlord before legal proceedings commence. Nor would there be any basis in law for a Court to refuse a claim for costs in the absence of any such quite unnecessary endeavours.

There is an absolultley solid basis in law for refusing costs, and it's clearly written in Rule 44.3 of the Civil Procedure Rules. You can find this at PART 44 - GENERAL RULES ABOUT COSTS

It clearly states in 44.3(4)(a) that the conduct of the parties is one of three factors relevant in determining if costs should be awarded, 44.3(5)(a) covers whether pre-action protocol has been followed (i.e. a letter before action), and 44.3(5)© covers the manner in which a party has persued a case (i.e. entering into mediation).

Again, if you know better please provide links to the relevant statutes which override this.

(I'm not legally qualified, so if you are then please state so and I'll bow to your experience).

First off I'm not sure how you can determine the legislators state of mind unless you were the legislator. Making assumptions about another persons state of mind when they were drawing up statutes is not the basis for a solid argument.

Secondly, S214 is the section governing the award, and S214(1) determines the conditions under which a claim can be made, so although other parts of the act may have been breached that may not be enough to qualify for the award.

Finally, you should remember the judge can refuse to award you costs on the grounds of unreasonable behaviour. So if you've not sent a letter before action, refused mediation on the allocation questionairre, and refused to comminicate with the LL to reach a settlement, then you may find that you're not getting your court costs back.

All that said, there are only two 100% certain ways for a LL to get out of the award, and those are;

- The start date of the tenancy was too early to be covered.

- The tenancy was not an AST (so check your agreement).

I'm not legally qualified, but here's my take.

S214(2) states that the penalties in 214(3) & 214(4) "apply if on such an application to the court" the requirements have not been satisfied. Therefore there is a strong case for situation as at the time of the application to the court, and not at the time of the hearing, to be what controls the outcome.

That said, the UK courts as operate on a "Spirit of the law" principal, so a judge may take the spirit to be a penalty on LLs who refuse to comply with the requirements and may see a LL who has subsequently protected or repaid the deposit in full to be a LL who just made an honest mistake, but in these cases there is potentially grounds for appeal on the basis that the law may have been misinterpreted.

The procedure for an appeal is relatively quick and painless, but must be started as soon as possible after the judgement. If you're not happy about the decision and there is a point of law behind your disagreement with it, the best thing to do is ask for "leave to appeal" at the time of the hearing, the judge will then usually tell you if they beleive you have a reasonable case for appeal and may offer you some suggestions (such as "get a solicitors advice"). You should always rememember though that just because you don't like a decision it isn't automatically wrong!!!!

So in a nutshell, it's down to the judges, and although they can't use their discrestion where there is a clear breach and the LL has not protected the deposit at the time of the hearing, they may see a LL who has repaid the deposit in full or protected the deposit before the hearing takes place (i.e. the LL has complied with one of the two options the court has available to it under S214(3)) as having made a reasonable efforts to have resolve the issue, and not award in the tenants favour.

Now if anyone wants to debate the point, I'm sure that any debate will help tenants going to court in a similar situation as it will provide comments and arguments why the judge should award in their favour.

Looks like the main rule of thumb is to keep things on track and to the point.

If the judge wants to discuss LL or Tenant behaviour, property state, etc., it may be wise to respectfully ask the judge how that would have a bearing on the point of law in question (remember, if you're in a small claims court you can ask for a little help from the judge). If the judge can't give an answer that refers to specific points in law then the tenant would have good grounds for an appeal if they did not win on the basis that the judges decision was a mis-interpretation of the law.

Another decision just come through, this ones from Reading County Court and went to a hearing last Friday morning.

Tenancy started November 2007 and ended March 2008. There was no signed contract, just a set of terms agreed by email. The LL was given an opportunity to prove that the agreement did not form an Assured Short-hold Tenancy , but the LL was unable to do so.

The LL then claimed damage to the property and that the tenant had tricked him into the situation, but the judge stated that she had no option but to award the return of the full deposit plus the three times penalty.

The judge gave leave for the LL to appeal and stayed enforcement of the award for 28 days because she was unaware of the law being tested at a higher court and thought it was appropriate to give leave for appeal on those grounds.

In the hearing the judge made it clear that, in her opinion, the tenants behaviour was not relevant, the state of the property was not relevant, and she was not at liberty to use her discretion in relation to the award.

Looks like another tenant win .

Does the contract mention the terms "Joint Liability", "Severally Liable", or "Joint and several liability"?

If it says Joint liability then it's up to the group to find the rental amount in some way and the LL can persue one or all of you for the rent.

If it's Severally liable then the LL should have persued S for their share of the rent.

If it's Joint and several liability the LL can persue all of you for the money and you have the right to persue S.

Talk to the court, explain the situation, and see if they can advise you the latest date by which you can cancel the hearing.

Once you have that date say that the money must be in your account before that date.

Banks can transfer funds in a few hours, so if they try to play you by saying that they want time to pay by cheque, or that they can't transfer the money quickly, then say that is their problem and they should look at using a CHAPS transfer which, if they request it before 1pm usually is credited in your account the same day.

If they pay late then explain in the hearing what has happened.

Remember one thing; They've had up until now to pay up and they chose not to, so don't do them any favours because they chose to leave it until now.