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DisgruntledTenant

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Posts posted by DisgruntledTenant

  1. Hi all, I've been meaning to get back to everyone with my case details and how it worked out, but have only got around to it now.

     

    Details as follows.

     

    1) Deposit never protected.

    2) We recieved 95% of depost back over a month after we moved out (and only after sending a LBA threatening legal action)

    3) LL kept 5% for

    a) the final inventory check which, according to out contract, was his to pay,

    b) "damages I am willing to forgo for the sake of closure"

     

    We then tried unsuccesfully to get this amount back, for the principal, and then lodged the claim to court.

     

    He then repaid the final amount owing, which we returned back to him.

     

    We also had a counterclaim for £1000 lodged which was for damages which we had 100% sound evidence that was bollocks.

     

    I then had a nasty letter from his solictor stating that we had no chance of winning and all the previous cases have been ruled in favour of the landlord, and that his counterclaim had every chance of success. I think because we were acting without representation and I think he thought he could bully us.

     

    I think got a solicitor involved and a barrister , both on a no win on fee basis.

     

    Given the 50:50 nature of the case, with the Judge being able to rule that the deposit has fully been returned, so therefore, no award, we could have ended up down the tube for the LL's court fees, which we were advised would have been along the lines of £5-10k.

     

    We settled of court for close to £3k out of a possible £7k.

     

    Not the best outcome, but still not the worst, and without the risk of legal fees.

     

    The point I would like to make that if the LL gets a lawyer involved, chances are these will never go to court for the risk at stake. I really wanted to, just to see the outcome, but in the end of day, sense prevailed and we settled.

     

    So thanks to everyones help. This site is fantastic with some really knowledgable people.

  2. Im really confused how he can pay back any money, shouldnt the deposit still be held until we agree on deductions?

    We have opted against mediation and decided to go straight to small claims as i he didnt notify us with in correct time scale for deductions.

    Is this right?

    We are ment to be going to court in a few weeks but i didnt know about the TDS until reading here.

    We were never notified about where it is being held, apart from that the agents were the deposit holders.

    Sorry if im being really stupid, I just dont understand.....if we were in teh TDS how could they send a cheque for £790 if we havent agreed to the deductions?

     

    Pretty sure all damages after that length of time would be under fair wear and tear. Especially the carpet. The life span of a carpet is only 7 years I believe, so should be replaced at no cost after that time.

     

    You should have a read of one of the blogs on this site http://www.landlordlaw.co.uk/blog.ihtml, scroll down till you find "Tenancy deposit arbitrations - why landlords keep losing" (might be on the second page).

     

     

    It states He makes the point first that the tenancy deposit belongs to the tenant, and the landlord, if he wants to make deductions, is making a claim which he will have to prove by evidence. And if you do not provide this, you will lose your claim, the arbitrator is unlikely to write and ask you for it. For example:

    • Inventories - these need to be a detailed condition report on the property not just a list of the furniture in it. To make a claim for damage to furniture (for example) you are going to have to prove that it was in good condition at the start of the tenancy. It is best that this is done by an independent firm of inventory clerks
    • You will also need a check out report, again this should be done by the independent inventory clerks
    • Photos are generally of no value as they could be of anywhere. Presumably if they are signed by the tenant and inventory clerk on the reverse and dated they should be acceptable. If used they should be clear and have something (such as a ruler) to show scale.

    Barry then explains how an adjudicator would approach a claim for a damaged carpet.

    • He would want to know the condition of the carpet both at the start and at the end of the tenancy
    • Evidence of when it was purchased
    • The cost of replacement
    • And the normal life of such a carpet
    • He would consider whether it could instead have been cleaned
    • Or whether any stain is relatively insignificant and can be left
    • In his award he will consider fair wear and tear
    • And base his award on the cost of replacement carpet but not underlay
    • For a ruined 3 year old carpet, the landlord (he says) will be lucky to get 40%, even if he can prove everything, as a tenants deposit is not a 'new for old' insurance policy

    In other words, in your case... after 5 1/2 years, and presumable the place wasnt new when you moved in, you would be pretty hard pressed to find the damages you have had to pay.

     

    In regards to the TDS, yes, your deposit should have been protected by one of the three TDS's, not by the LL or the Agent. If it is unprotected, you can sue for 3x the deposit.

     

    I'd suggest that you look into this further, as it appears you have a pretty strong case for it.

     

    The small claims is correct for the deductions, but (someone will probablyu correct me here) I would look at withdrawing your small claims claim, and then lodging a claim for your full deposit, and 3x the deposit for non compliance of the HA 2004. A total of £6400. This will not be through the small claims court however, and you will be exposed to your LL's costs should you lose. But it appears a pretty much open and shut case to me.

     

    Then it will be up the the LL to prove the deductions, and if he hasnt paid them back by the time you go to court, you have a pretty clear cut case for the 3x penalty.

     

    His only defence to the TDS non-compliance would be to repay the deposit before trial, which would mean that you get your deposit back, so all good there.

     

    Thoughts from others?

  3. Hmmm. An interesting question.

     

    can a court draft an order for something to be performed that is already the status quo?

     

    I dont know.

     

    Not sure. An interesting debate I heard to this argument relates to the

     

    "if the grounds for the penalty are met, the court must order the person who appears to the court to be holding the deposit to repay it to the applicant, (or protect it)."

     

    In other words, if you follow the Act literally, the court must order the tenant to repay the money to themselves. It has no discretion around this due to the 'must'.

    (nonsensical but correct under the wording of the law).

     

    Therefore the must also for the second part would still apply.

  4. MrShed, dont get me wrong here, I'm not trying to have an argument with you on this, just playing a bit of devils advocate, as I'm curious to find your views on the defence that my LL is using to my case. And I appreciate your input! :-)

     

    I disagree with the first part. I'm sure they CAN protect it, but this wont protect them under HA2004, as no tenancy exists.

     

    But if they protect it, the money is protected and no order can be given.... (the 14 days is irrelevant here I believe). Why wont the late protection protect them under HA2004? Can you explain this further?

     

    Sorry DT - youve lost me. Can you explain your second part?

     

    No problem. The Act states the following (summarised):

    214(2) Subsections (3) and (4) apply if the grounds for awarding the penalty are met.

    If they are...

    214(3) The court must either—

    (a) order the return of the deposit, or

    (b) order the protection of the deposit.

    214(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times ...

     

    If the court cant order 213(a) or 213(b) they cant 'also' order the penalty. In other words, is the order under S214(4) dependent on an order being made under S214(3) or not?

     

    Make sense?

     

    I'm not saying I agree with this argument, just have seen it being used by LL's trying to get out of the penalty. It's worked on at least one occasion that I know of.

  5. Well... they can return the full deposit easily enough. I did call one of the schemes to ask if the deposit can be protected after the tenancy has finished and they said it could, as long as the LL has the deposit it can be protected. But there are conflicting views as to whether this information is correct or not.

     

    What are your views on the 'must also' argument. ie, if the LL returns (or protects) the deposit, the court cant make an order under 214(3) and therefore cant 'also' order the fine?

     

    Am curious of your thoughts on this.

  6. Hopefully, if you get the claim in quick, she will then counterclaim with the deductions, and as I understand, there is no entitlement to counterclaim against damages in a TDS dispute as each of the schemes provide arbitration services. And given there is no excuse for not using the scheme, the arbitration services are the only option for a landlord to look at deducitons. And then her counterclaim will get struck off straight away.

     

    I'm trying to use this defence to the counterclaim to my TDS non-compliance claim also.

     

    From Stankova v Glassonbury

    In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or other arguments about the return or retention of the deposit on the basis that a statutory scheme included arbitration for disputed about returning or retaining deposit monies.

     

    Why should tenants have to face legal costs, and court and its associated stresses, and an opposition solicitor, for a counterclaim that should have been dealt with by a free arbitartion service, and the only reason why the tenant cant use the free arbitration service is because the landlord has failed to meet his statutory requirements?

  7. Hi,

     

    (fellow) DisgruntledTennant:

     

    I was under the impression that it was irrelevant if she put it in a scheme after 14 days. The law had already been broken so she must liable to prosecution (I got a speeding ticket the other day - I can't appeal that and say "oops, you caught me - i'll drive slower from now on if you don't give me a fine").

     

    Dont worry mate, I'm in a very similar position to yourself. My landlord never protected the deposit, and only returned it after we lodged the claim.

     

    You're right about the law being broken re the 14 days, but the problem is that there is no punishment listed in the act for a landlord that fails to protect the deposit within 14 days. (This is my interpretation only).

     

    The law states clearly that the 3x penalty applies (only) on the following grounds:

     

    Subsections (3) and (4) apply if on such an application the court—

    (a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

    (b) is not satisfied that the deposit is being held in accordance with an authorised scheme.

     

    Clearly (b) doesnt apply as the deposit is now protected.

     

    As for (a), its clear that 213(6)(a) has been complied with if you have received the releveant information. And the initial requirements of a scheme have also been complied with. If a landlord can protect a deposit after 14 days, then clearly these arent part of the initial requirements of the scheme.

     

    So there are no grounds for the penalty if the deposit is protected. Again this is my interpretation, but given you are likely to have to pay costs if you lose, is it worth the risk, and 6 months of hassles?

     

    I know it sucks, and landlords can be pricks, but it is how it is I'm afraid.

     

    Did you get the appropriate gas safety certificates?

  8. If your deposit is now protected, you can try and sue your LL for the 3x penalty, but you have to bear in mind that if you lose, you pay her costs, which could be significant.

     

    And given that the grounds for the penalty dont include the 14 days, it would be a pretty risky course of action.

     

    The general consensus (I believe) is that if the deposit is protected before trial, then you lose.

     

    Why are you worried anyways? Its protected.

     

    I'd just make sure you have all the relevant gas saftey certificates etc.

  9. I was given a date at the end of November for a prelim hearing. In the meantime the defendant’s solicitors filed an application to have my case struck out. I am in court on Friday this week in relation to the strike out.

     

    I'm not a lawyer, but I think you should apply to have your landlords defence struck out on the grounds it has no real prospect of success, much like he is trying to do to you.

     

    Seems to be an open and shut case that he is the Landlord. Presumably you have emails from him acting as the Landlord?

     

    From the Act:

    references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies

    Seems pretty clear, with all the other informaiton that you have provided, that there is no way he can argue that he wasnt the landlord. And judges arent stupid!

     

    Let us know how you get on and good luck!

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