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carpetfluff

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  1. Thanks very much for the replies, the advice is greatly appreciated. We went to our local county court yesterday, and they were able to confirm that our N316 application would not be suspended due to her submitting the N245. They also confirmed that if the court makes an instalment order, then we will lose the right to enforcement. Although the N316 application will continue unhindered, the information gained from it will be pretty useless to us if an instalment order is made, as we will no longer be entitled to enforcement (unless she defaults on payments). If we act quickly, we may be able to apply for enforcement before returning the N246. However, without the information from the N316, we are unsure which would be the most effective method. On the N245, she has stated that she is married with 2 dependent children, has a bank account overdrawn by £1000, and a savings/building society account containing £200. Her home is jointly owned (presumably with her husband). Her total income is £200 per week from take home pay and her pension, but nothing is stated under ‘Other income’ such as her husband’s contribution towards running of the home, or income from the property we were renting (which she said in court she is still renting). Priority debts are £250 per month on mortgage arrears, £500 in water charge arrears, and £435 in gas debt. Her weekly expenses are stated as £190 per week, and she has credit card debts of £80 per month. From this information there is no way she can afford £50 per month (on her own), so we are concerned that the court would order her to pay even less than this. Although we dealt with husband and wife as joint landlords throughout the tenancy, the wife was the only one named on the tenancy agreement, so the judgement was made against her. As a result she seems to have detailed only finances relevant to her, rather than jointly as a married couple. Is this correct, or should the court consider their joint income? Despite her individual financial situation seeming poor, her husband clearly supports her, so I doubt she would miss any of the monthly instalments. An attachment of earnings order would be pretty useless considering the income she has stated on the N245. A third party debt order would be preferable, but she has stated that she only has £200 in a savings account. We paid our rent into a joint account, which we have details of, but we don’t know whether this is the account mentioned on the N245. In any case, we cannot request a third party debt order against a joint account, since the debt is only in her name. A charging order on their home seems like the safest option, but without much chance of getting an order for sale, we would most likely be waiting several years for them to sell their house. Without the results of the N316, we don’t even know how much equity there is in either property. Monthly instalments would be preferable to this, as then at least we’d be getting some money. We have no idea whether they own anything of value, so a warrant of execution may be a waste of time. However, my partner is on JSA and we don’t have to pay for court fees, so it might be worth a try anyway? If we were to go down this route, should we apply through the High Court rather than the County Court? I feel as though a warrant of execution may be the most effective method, but we don’t want to be accused of abuse of process by attempting to enforce judgement after receiving the N245. Ideally, we would be allowed to wait for the results of the N316, and then follow an appropriate line of enforcement. I think the only way this will be allowed to happen is if we are able to provide strong objections to an instalment order being made. Would it be reasonable to state that we do not trust the information she has provided (based on lack of evidence), and are waiting for the results of our N316 application, where questions must be answered under oath? We would also state that we wish to enforce the judgement, and would provide evidence of her assets from land registry records. Is this going to be enough to stop an instalment order going ahead?
  2. On the 24th June, my partner and I won a claim against our ex-landlord for failure to protect our deposit, and the judgment against her ordered her to pay us £4200 (the original deposit and 3x the deposit in compensation) plus interest on or before 8th July. We waited until the 9th July for her to pay, but she did not, so we posted form N316 (Application for order that debtor attend court for questioning) to the court. The intention being to obtain more information on her financial situation, so we can decide which is likely to be the most effective enforcement method to use. However, on the 10th July we received the form N245 (Application for suspension of a warrant and/or variation of an instalment order) which she submitted on the 7th July, and the court forwarded on to us on the 9th. In this form she states that she can only afford to pay us £50 per month, and has detailed her income, expenses and debts, and enclosed a cheque for £50. This is unacceptable, as it would take her 7 years to pay us the full amount. We know that she still owns the property we were renting, so at the very least we should be able to apply for a charging order. Along with the N245, we received form N246 (Claimant’s Reply to Defendant’s application to vary instalment order). We now have 2 weeks to return this form, stating whether or not we accept her offer of £50 per month. If we do not accept the offer, then we must say how much we will accept per month, or that we will accept payment in full by a certain date. However, we are not interested in monthly instalments, and would like to enforce payment. We must also record our objections to her proposal. From what I’ve read, it seems that if we reject her offer then the court will consider her financial situation based on the information she has provided in the N245, and decide how much she must pay us per month. She missed the original payment deadline of the 8th July, so we have the right to enforcement. However, it is my understanding that if the court orders that she is allowed to pay in monthly instalments, we will be denied the right to enforcement so long as she keeps up with the payments. Surely we have the right to decline this, and follow the usual lines of enforcement? Does anyone know whether our N316 application be suspended due to her submitting the N245? Thanks in advance for any advice.
  3. I have just come across the following information in document TDS A – Rules of membership. http://www.thedisputeservice.co.uk/resources/files/TDSA-Rules-of-Membership-Edition-4.pdf 8.1 The Housing Act 2004 (c. 34) Part 6 Chapter 4 paragraph 171 (3) states that: Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received. 8.2 For TDS this means that within 14 days of the tenant paying over a deposit to a member, whether or not the funds have been cleared: 8.2.1 the tenant(s) must have received the information specified in paragraph 14.2.3 by its inclusion in the tenancy agreement; and 8.2.2 the information specified in paragraphs 14.3 must have been lodged on the TDS tenancy database. Paragraph 8.2 comprises the initial requirements of the Tenancy Deposit Scheme (Housing Act 2004, Section 213 (4)). I was unable to find paragraph 14.2.3. I think it might have been a typo, referring to paragraph 14.3. 14.3 The Dispute Service is obliged to collect and maintain appropriate data on each deposit that it protects. Members must record the following data and enter it directly on the TDS database within 14 days of the start of a tenancy: a Names of all tenants party to the tenancy agreement; b Contact details of tenant(s); c Name and address of the deposit holder; d Property address to which the deposit relates; e Total value of the deposit; f Date on which deposit is paid to the Member… g …and date on which tenancy begins if different. If they are unable to enter the data directly, Members may record it on form TDS 5 and submit it to the Scheme within 7 days of the start of the tenancy in order that details may be entered within the time specified. There will be an extra charge to cover transcription costs, fixed by the Board from time to time, which must be paid before the data can be entered. I should mention that the landlords produced their own assured shorthold tenancy agreement, to save on agency fees. Has this resulted in the agency breaching the initial requirements of TDS, by not ensuring that the required information was included in our tenancy agreement?
  4. DevilWearsPrimark & old_andrew2007, thank you both for your advice. I was about to send a letter before action to the landlord, when I thought I should probably check that our deposit had not been protected by any of the tenancy deposit schemes. I started by phoning The Dispute Service, who told me to my surprise that our deposit had been registered with them by the letting agency! They were able to confirm that we were listed as the tenants, that the tenancy period was correct, and that the full amount of £1050 was protected. Unfortunately they were unable to tell me exactly when the protection had started, so I do not know whether this was done within 14 days of payment. TDS -Frequently asked questions 3.2. Does the agent have to hold the deposit as stakeholder? Yes. The legislation effectively does away with the ability to hold the deposit as “Agent for the Landlord” and to deploy at the landlord’s discretion. It prohibits the holder of the deposit from disbursing the deposit without the agreement of the landlord and tenant. A disputed deposit can only be paid out following a decision by an adjudicator or the courts. Even if a landlord wishes to insist that the Agent holds the deposit as “Agent for the Landlord”, the agent would not be able to release any of the deposit to the landlord, at any point during the tenancy. The agency seems to have broken their agreement with The Dispute Service, by releasing our deposit to the landlord (with fees deducted) on 1st September 2008 (at the start of the tenancy) without our agreement. Does this mean that our deposit is no longer protected? I suspect that the agency tried to charge the landlord a fee for protecting the deposit, which she then refused to pay. The agency then released our deposit to the landlord without our consent, which she then took no further steps to protect (as far as I am aware). Should I contact the other tenancy deposit scheme companies, to check that the landlord has not gone on to protect the deposit herself since it was paid to her? Additionally, the agency never sent us a certificate of registration, or any details of how to apply for the release of the deposit. Should I now ask the agency for the certificate of registration? The agency copied and pasted the text of the following leaflet to the bottom of a letter which we signed (beneath our signatures), agreeing to the conditions of the letting process. What is the Tenancy Deposit Scheme – An explanatory leaflet for landlords and tenants http://www.thedisputeservice.co.uk/resources/files/TDS%20E%20What%20is%20TDS%20A4.pdf Nothing in the letter really stated that The Dispute Service would definitely be used to protect our deposit. Does any of this generic leaflet information count towards the information we were supposed to receive? In another letter sent to us by the agency shortly after, it states: Details of the proposed tenancy are as follows: Deposit: £1050.00 – held by agent as ‘Stakeholder’ Is this sufficient information? I’m unsure how we would go about proving that we never received the relevant information, as it is hard to prove a negative. Could someone also please explain to me what the ‘initial requirements of an authorised scheme’ are, as mentioned in section 213 and 214 of the Housing Act 2004? I have read somewhere that these should be in the tenancy agreement; however ours simply states that “If the landlord takes a refundable deposit it will be held in accordance with one of the tenancy deposit protection schemes, details of which will be notified to you separately.” Do we have a case for 3 times the deposit in compensation, or should we just try to get our deposit back via The Dispute Service? Thanks again (sorry for the long-winded post).
  5. Hi, My girlfriend and I moved out of the flat we had been renting for 12 months in August this year, and we are now having trouble getting our deposit back. We phoned the landlords a couple of weeks before we were due to leave, to ask when they would inspect the property, and when we would have our deposit returned. They didn’t realise that our tenancy was coming to an end, and thought we were renting for 6 months and leaving in September! Consequently, they would not be in the area when we left, and didn’t inspect the property until a week after the tenancy had ended. We spoke to them on the phone after they had inspected the property. They said that everything was fine, and that they would not be making any deductions from our deposit. They then told us to contact the agency with regards to getting our deposit back. When we phoned the agency, they told us that they would get confirmation from the landlords, and then post us each a cheque within 5 working days. No cheques came, so we called them back. They said that they’d made a mistake, and that our flat was an ‘introduction only’ property – meaning that our deposit had been paid to the landlords at the start of the tenancy. On 8th August 2008 (the date we moved in) we paid the agency one month of rent in advance (£700), plus a deposit of £1050 (£1750 in total). The agency said that they then deducted from this fees that the landlords owed them, and then returned the remaining £970 to them by cheque in the post. However, this cheque was not sent to the landlords until the 1st of September. The landlords claim that because the agency posted them the cheque with no accompanying letter, they didn't know that it was our deposit, less fees. They say that they thought it was the advance rent payment, and so paid it into their bank. They tell me that they believed that the agency had paid our deposit into a tenancy deposit scheme, and thought that it was protected throughout the duration of the tenancy. They say that they only discovered that this was not the case when they spoke to the agency at the end of the tenancy. The landlords are now refusing to repay us the full £1050 deposit, saying that they will only pay us the £970 that was returned to them by the agency. They argue that the £80 difference accounts for agency fees that we should pay, which is entirely untrue (I have confirmed this with the agency). Furthermore, they say that they will not be able to pay us until the end of the month, and possibly in two instalments. Was it the agency's responsibility to protect our deposit, since it was in their possession for the first 14 days, even though it was eventually paid to the landlord who did not protect it either? Also, the landlords are husband and wife, however the wife is the only landlord named on the tenancy agreement. The husband seems to deal with all the finances, but should we be dealing directly with his wife as she is the official landlord? I understand that we may be entitled to 3 times our deposit in compensation, because our deposit was not protected. I’m just unsure who is at fault, is it the agency or the landlords? Any advice would be greatly appreciated.
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