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Everything posted by DevilWearsPrimark

  1. I think that means you can enforce against the agent in that case. I had a similar case last year, over deposit protection rather than reclaiming rent though. But my overseas LL and UK based LA were both named as defendants and when I won the case I was able to enforce against the LA who eventually paid up. If you do a search for threads I started you will find the details of how I did it and the advice I was given at the time. Good luck!
  2. What sort of tenancy did he have? Was it an AST, or was he a lodger?
  3. Even if the six months is up, even if there are arrears, the landlord cannot force entry like this. There are procedures to be followed and failure to do so constitutes illegal eviction and harrassment. Your friend has no need to negotiate anything. The landlord MUST serve the correct notice and after that has expired he still cannot force entry - he would need a court order before he could do so.
  4. He has no need to leave at all. The landlord can only gain lawful possession of the flat if he gets a court order - it appears he has not done so, and so he has NO RIGHT to order your friend out. The police will attend and will tell him so if your friend phones them. I also suggest he rings Shelter asap for some expert legal advice.
  5. No they cannot do this! If they try to force entry he must call the police.
  6. I am not sure who is at fault to be honest, though the general view is that the ultimate responsibility lies with the LL. Your LL is the person named as such on the AST agreement - so in this case the wife. However, I have recently won a TDS case plus 3x penalty against my former LA, even though he claimed to be acting on a let-only basis. I would send a letter before action to both LL and LA stating your intention to bring court proceedings for full return of deposit plus 3x penalty unless it is returned within 14 days. If it isn't, then issue court claim with both LL and LA as defendants and let the judge decide who bears the responsibilty.
  7. Well done! Regarding enforcement - I applied for an 'order to attend court for questioning' on LA when he failed to pay within a month. This means they must attend court to be questioned in detail about finances (and provide proof of all accounts, mortgages etc) so you can decide how best to enforce. In my case, the court bailiff went to serve the order on LA whom promptly handed over a cheque for the full amount.
  8. You don't need to photo the house or prove anything - if the LL wants to make deductions it is their responsibilty to prove the case. The deposit is YOUR money unless he proves he is entitled to any of it, which without any evidence he can't do. Unless I am missing something, I'd say to issue N208 for return of deposit plus 3x fine for non-compliance. The renewals post April 2007 mean you have a good case - I won on these grounds as have others. The Govt. guidance is quite clear on how the law is intended to work - if a renewal AST was signed after April 2007, the deposit should be protected. I will PM you details of my case. I think the fact you are no longer tenants doesn't matter, he is retaining your deposit without good cause.
  9. "What happens if the tenant has a tenancy agreement that was taken out before 6 April 2007 but he continues occupying the property after the end of that tenancy? If the tenant decides to remain in his existing rented property beyond the initial fixed term of six months, how the deposit is treated will depend on how the tenancy is continued: For a statutory periodic tenancy - ie the tenancy continues with no new agreement - TDP will not apply, as no new AST will have been created. For a replacement/renewal tenancy - This is a new AST and so TDP will apply. The deposit previously paid under the earlier tenancy is repayable to the tenant at the end of that tenancy, so it should be returned to the tenant. Alternatively, if the landlord wishes to continue to hold it as security in respect of the new tenancy it must be protected under scheme." (taken from Treatment of deposits at the end of the tenancy - Housing - Communities and Local Government ) That is the Govt guidance relating to pre-2007 deposits. I know lots of people consider it a bit of a grey area and there are opposing views on here and elsewhere, but I went in with the approach that as the law isn't entirely clear, the best interpretation to use is the one the Govt. are making. The judge agreed with me and said it was quite clear how the law was meant to work.
  10. Its possible that when she collected the deposit from the letting agent in order to self manage, she should have protected it then. Thats when she personally recieved it.
  11. http://nearlylegal.co.uk/blog/2009/0...al-of-tenancy/ http://www.atro-online.com/tenancy-deposit-scheme.html http://nearlylegal.co.uk/blog/2009/0...y-award-again/ These are the judgements I provided in my claim. An S.21 served when deposit is unprotected is invalid and if they try to enforce it (either through court or 'unofficially' - they sound like charmers!) it is likely to constitute illegal eviction and harrassment. I'd suggest a letter to tell them this and to let them know the tenant has rights and is aware of them. The local council should have a 'private sector team' to deal with problems with landlords and renting - try them maybe?
  12. I think its been explained properly and can't see anything confusing myself. The only time a periodic tenancy is not covered by TDS legislation is if it was started before April 2007 and not subsequently renewed. However this does not apply in this case as the tenancy was started in August 2007.
  13. UPDATE - no money arrived within the time ordered so i issued an order for LA to attend court for questioning on his financial affairs to give me an idea how best to enforce. The day after this was served, he sent the court a cheque for the full amount, which is now being forwarded on to me. Thanks to everyone who advised me - I'm doing my best to help others with their cases now I have all this information sloshing round my head.
  14. The original tenancy was created after April 2007 so it does apply. If the tenancy was created before April 2007 and then lapsed to become a periodic tenancy then TDS legislation may not apply, but thats not the case here.
  15. Its April 2007, not April 2008, thats the important date for deposit protection. If the money was specified as advance rent then you have no need to pay for the last 2 months you are in the property - you have paid already. If the LL expects you to pay rent til you leave and then he will return the advance rent, then he is treating it as a deposit whatever he tries to call it. EDIT - I see that your LL is aware of the protection schemes and trying to avoid using one - so he can't treat the money you have paid in advance as anything other than rent.
  16. He is talking out of his bum and leaving himself wide open to court action. He obviously knows full well that deposits need to be protected and is trying to wiggle round it with semantics. There's no good reason for him not to protect it, and I'd write him a letter stating this and quoting the relevant legislation, and giving him 14 days to protect it or you will commence court action.
  17. 1) Not a clue, sorry. 2) I wrote out a chronological account of events that led to the case being started - numbered paragraphs with each paragraph being kept to one issue. Supporting documents were numbered, and then referred to by number in the witness statement. 3) Yes, just send a copy to the defendant/s, and a copy to the court.
  18. She read them in advance (I submited the details with my witness statement and supporting documentation) and told me they had been 'very helpful'. I assumed that if she wanted to verify anything I'd said then being a judge she would have access to the 'official' information.
  19. I just provided details - name of court, name of judge, date if available, claimant/defendants names, any quotes or details of the case I felt were relevant. I typed them up and printed them out, and then did a kind of reference page that gave the web addresses where information was found.
  20. Right, thats what I thought. Thanks. No-one turned up except me. But LA sent a letter to the court saying he couldn't be there (but no reason good enough to have the hearing moved) and LL is in Japan and not contactable except c/o LA. Will be enforcing against LA if no payment is made within the 14 days. Can LA still apply to have it set aside then? He filed defence, turned up to directions hearing, and knew when the final hearing was - he just didn't want to come. I thought you needed good reason to have it set aside?
  21. So, there were two defendants in my recent TDS case - LA, and LL. Got a copy of the order in the post today and there is a letter addressed to me, which states that "there be judgement for the claimant against both defendants in the sum of £1800 payable by..." Then there are copies of the order sent to LA, and the order sent to LL. They have each been sent an order in their own name, requesting they personally pay me £1800 within 14 days. I understood they had to pay £1800 between them - is that right? Or do the two orders mean they have to pay that sum each?
  22. I don't know if they get published but I will PM you some details. Still waiting for the order to come by post - not sure what details of the ruling are on that but will let you know any useful ones.
  23. The Housing Act 2004 states that... " (3) The court must, as it thinks fit, either— (a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or (b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme, within the period of 14 days beginning with the date of the making of the order. (4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order." Some judges have taken this to mean that if neither 3 a) or b) can be ordered (for example if deposit has been protected or returned by the time the case is heard), they cannot order 4 as it is prefaced by "must also". The judge in my case said she was in agreement with my claim that it was a strict liability penalty for non-compliance and that the return of the deposit (after court proceedings had been started) did not alter the fact the law had not been complied with.
  24. Documents - all ASTs, various letters regarding deposit, receipt for original deposit, letter from Shelter advising me that the deposit should be protected, copies of letter and cheque forwarded to new LA. Also provided details of some previous judgements that had gone the way I was hoping this claim would, and copy of the Govt guidance on pre-April 2007 deposits. Am hoping LA pays up within 14 days - surely to ignore CCJ would be disastrous for his business? He is also property developer.
  25. Brief details... - paid deposit of £600 in March 2006 with LA signing on behalf of absentee LL (resident in Japan) - new ASTs signed March 2007 and March 2008 - new LA took over March 2008 but left deposit with old LA and unprotected - old LA sent cheque for deposit to new LA December 2008 with letter advising him to protect and send me information - nothing happened - started TDS claim January 2009 with LL and LA named as defendants - moved out March 2009 - LA returned deposit in full at directions hearing in March 2009 Long story here - http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/181073-complicated-tds-case-have.html Full hearing was this afternoon. LL and LA failed to turn up, though LA had written to court to apologise for absence. DJ agreed with all points I made, was very sympathetic, and awarded me £1800. Judgement was entered against LL and LA and if the money is not recieved within 14 days I can enforce against either or both. DJ said deposit should have been protected when AST was signed in March 2008, and certainly when LA recieved the cheque in December 2008. Also said that she did not need to order return or protection as that had been fulfilled by now, but that was able to award penalty anyway as the legislation had not been complied with. Judge thanked me for 'all the hard work' I had put into the preparation and said that the evidence and documents I provided had been very interesting and helpful!
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