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confused mum

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  1. Hi All Just in case you can't be bothered to scroll through my ramble and confusion of my thread that is called A very clever Landlord - have a look at the last post!!! It has notes. THANKS to ALL!!!!!
  2. Hello All I was at court today and I WON my counterclaim for non-compliance of section 213(5)! The LL not giving me the prescribed information!!!!!!! He said he had only warded one other tenant since feb 2007 / the beginning of the Law. So maybe this will be useful for many uncertain of whether they can claim. It maybe the first claim for 213(5) that has succeeded since Gladhurst and Potts and it opens up a route that is obviously a way that succeeds for the tenant, and allows Landlords to be aware that they have to do the 'dual compliance' or none at all and take a chance! But we all know that those LL's who do not deposit the monies into a scheme can still comply right up to the date of the hearing to comply to both. POINTS The LL had placed my deposit in DPS during the tenancy I did actually counterclaim claim after the tenancy had ended LL failed to give FULL prescribed information (he didn't give me the tenants ID number by the hearing date, so what he had given me previously was deemed useless) I will post the court order when it comes through so it will help others on this great site! I wish to thanks so many on here, especially Ed999 who painstakingly wrote down facts of the LAW that was immensly useful! YOU ARE A STAR Ed999! If anyone needs more info prior to me posting the court order I will be very happy to help! Use my notes and Ed999's to help out if you have a similar scenario. I will make a donation to this site soon as it is so worth it!!!! THANKS
  3. Ed999, or anyone else that maybe interested - I would love a response I have worked on your guidance Ed999, and have made some notes that I can use and read from whilst in the hearing. It is not evidence. Its so I do not get tongue tied and confused. Please see my notes and anything I have wrong or ommitted, I would greatly appreciate these points. Here goes....... GLADEHURST PROPERTIES LIMITED v FARID HASHEMI (ON BEHALF OF HIMSELF AND MATTHEW JOHNSON) Gladehurst case is strictly, the only authority in a case of non-protection. Majority of the deposit was returned to the tenant prior to the counterclaim Did not consider 213(5) as the deposit was never protected “Gladehurst has never complied with the initial requirements or with s.213(6)(a) and cannot now do so” So ‘Gladhurst’, is not an authority on a section 213(5) claim. TIENSIA v VISION ENTERPRISES LTD Tiensia is a valid authority in a case of late protection, as the deposit was protected after tenancy had ended, but before the hearing. No claim under section 213(5) was made in Tiensia, either, or the judgement did not depend on the point “This interpretation was supported by the language of section 214(2)(a), which used the phrases 'have not' and 'has not', a tense showing that the focus of relevant interest was whether or not the landlord was in breach by the time of the hearing (or possibly by that of the issue of the tenant's application, although in the post-judgment discussion Judge Ellis said that he regarded the hearing date as the relevant one).” So ‘Tiensia’, too, is not an authority on a section 213(5) claim. POTTS v DENSLEY The High Court had previously decided, in Potts, that the tenant can win a claim under section 213(5) if the landlord fails to provide the prescribed information, even where the deposit is actually protected or not. “Unusually in this case, the deposit was paid late, and after Miss Potts had given notice of termination of the tenancy” “The penalty must follow any breach. However, applying Tiensia it was held that it was possible for the former landlord to comply with the requirements of the Act right up to the date of the hearing. Even where the tenancy had ended, the former landlord was still ‘landlord’ for the purposes of the Act and remained obliged to comply with its provisions and subject to the penalties therein. As the landlords had eventually complied with the Act, they had a complete defence to the claim” “The second issue raised is whether the judge erred in failing to deal with the issue of prescribed information. The Appellant says she erred, because a claim was made in the court below that the prescribed information had not been provided to the Appellant: if the judge had addressed that issue, she would have been bound to impose a sanction on the Respondents for not providing it, as it is common ground they never did so. The Respondents dispute whether such a claim was made; and if it was not, they say it is too late to raise the issue now.” Potts never claimed for 213(5) of the legislation so was never considered So ‘Potts’, too, is not an authority on a section 213(5) claim. DPS (DEPOSIT PROTECTION SCHEME) It clearly states on the DPS that if a tenant does not dispute the LL’s claim for the deposit, it is to be paid to LL within 14 days - the money goes to LL with the “single claim process”. “Single Claim Process - Statutory Declaration a. To use the Single Claim Process, either the Landlord or Tenant who is claiming part or all of the Deposit (the “Claiming Party”) must provide The DPS with a Statutory Declaration at least 14 calendar days after the Tenancy has ended.” (NB Tenant and Landlord is present tense) Therefore I had to claim via the courts as I did not have the “prescribed information” so I could: · Clarify if my deposit was within their scheme by exercising my right to use legislation 213(3) · Stop the LL gaining the full deposit monies by exercising my right to use legislation 213(5) Once the deposit is with DPS: · The LL and Tenant are locked into a ‘continuing agreement as LL & Tenant’ (present tense) making Gladhurst Appeal not relevant to my case · The LL and Tenant wait until the resolved outcome regard to the deposit is made which can only begin after the Tenancy has ended, either amicably or ADR or by COURT ORDER. Details below that should be given to the tenant as per DPS terms: b. The Landlord will be responsible for providing confirmation to the Third Party. c. The confirmation to each Party will contain: i. Name, address and contact details of the DPS; ii. the Deposit ID; iii. the amount of the Deposit and the date of receipt; iv. the name and contact details of the Landlord; v. the name(s) of the Tenant(s) and the Lead Tenant, if applicable vi. the address of the Tenancy property; vii. start date of Tenancy; viii. tenancy duration (months); ix. a copy of these terms and conditions ; x. a Landlord’s Repayment ID or Tenant’s Repayment ID, as applicable. i, iv, v, vi. were given to me only! Deposit Submission a. The Landlord or Letting Agent is responsible for ensuring that Deposits are submitted for protection within 14 calendar days of the date of receipt by the Landlord. b. Deposit information can be submitted by completing an online or paper Deposit Submission Form. c. The Landlord or Letting Agent is responsible for ensuring that the information contained on the Deposit Submission Form is full and correct. d. The following information is a mandatory requirement on all Deposit Submission Forms: I Landlord ID; ii. Landlord name / Letting Agent name / trading title; iii. house number / name and first line of address of Tenancy property; iv. town / city of Tenancy property; v. tenancy property type e.g. house; vi. whether the Tenancy property is furnished / unfurnished; vii. start date of Tenancy; viii Tenancy duration (months); ix. date Deposit received by the Landlord; x. Deposit amount; xi. full name and title of Tenant / Lead Tenant / Third Party; xii. in the case of Joint Tenants, the full name and title of all Tenants that are party to the Joint Tenancy. xiii. a mobile phone number or email address for the Sole / Lead Tenant. (online submissions). POINTS OF ERRORS Email address was wrong for ‘tenant’ so I didn’t get any correspondence from DPS (it is well documented that this method was the way I, the tenant, and LL communicated) LL has claimed the AST start date incorrectly - The date of AST LL claimed was 2009 (2008 is the correct date as he knows per ‘STRUCK OUT SECTION 21’, where he claimed 2007 was the AST) Therefore Date of deposit paid to LL must be wrong, - hence I didn’t find it. (searches are in my evidence) Best Practice in Deposit Protection for Landlords Some useful things to remember when submitting, managing and claiming a deposit: Repayment IDs › Keep any deposit confirmation letters / emails from The DPS as they include the Repayment IDs which both Landlord and Tenant will need at the end of the tenancy in order to repay the deposit. › Remember to ensure this message is passed on to Tenants. › The repayment process is a joint process between the Landlord and the Tenant – The DPS will not monitor this process. Direct Bank Transfer › Direct Bank Transfer (DBT) is the quickest and easiest way to pay. When you pay by DBT, you can choose either automatic or manual allocation of the money to a Deposit ID. If you choose manual allocation, don't forget to log in to The DPS website and allocate your money to a deposit - if you don't complete this, the deposit is not protected! Online Repayment Claims › Encourage online repayment claims – together or apart. › Agreement to use Alternative Dispute Resolution (ADR) can also be made online. Rejected Cheques Common errors we have noted are: › cheques not made payable to ‘The Deposit Protection Service’; › cheques not signed; › multiple cheques against a single deposit – The DPS will not accept this; in some cases one or more of the cheques may bounce and a deposit will be incomplete. Tenants’ email addresses › The Landlord must ensure this is taken from the Tenant as it is required when submitting deposits online. Single Claim Process › This is part of the Government legislation. › Statutory Declarations must be witnessed by a Solicitor (which should cost no more than £5), a Commissioner for Oaths or a Magistrate.
  4. Ed999 - wow! You have given me so much here and its all good - thank you so much! I have something that may mean something to this case. The first part for possession of the section 8 was heard back in October/November 2010 and the Judge ordered that the LL is to gain possession on that date. I counter claimed prior to the date of 'judgement for possession', although I had already given the keys back to the LL. I have the court decision still with the date clearly stated, which also detailed the money part for arrears of the claim for a future set date. So does this mean I counter claimed whilst still officially a tenant? I know I will be responsible for the rent up to that date but it was only a couple of weeks (the downside). I also have the court receipt of payment for my counterclaim prior to this possession court hearing. Will this stand or will LL argue that I had already moved out. What do you think the Judge will see as the date of tenancy ending? Thanks so much again - you have sent me alot to digest and fully understand. I did claim for both parts - deposit not being registered and not having prescribed informaton. The 3rd (last one) hearing was classified as PART-HEARD as Judge knew that the LL still had not complied with 231(5), and he was peeved that the LL had failed to show in person on any hearing. He told me that LL cannot comply now as it is too late. The LL did send me and the Court further evidence which had the Prescribed Info needed. Answer to your advice that I can write to DPS to get the info needed. I did this but they flatly refused if I didnt have the ID number. I have recently tried again with the ID number via email and its been 3 weeks now and still no reply from DPS. DPS have to give me the repayment ID which will then allow me to view my deposit. I will try and give them a ring later.
  5. Dear Ed999 Yes I do seem to have confused, but it is a complex one! - sorry. I am not building my hopes up but I was just reading case outcomes and thought about the following, any views would be appreciated. Whilst the tenancy was still in force, I asked for the deposit to be returned or prescribed information many times as I could not find any scheme holding my deposit. I was finally sent a recent screen dump from DPS website detailing my ref no after the the hearing was Part Heard. This kinds of proves that the LL had never sent it or could prove he had, therefore LL never met his obligations during or post tenancy. The DJ even asked the solicitor present at previous hearings for this to be sent to me. They failed to do this. How could I know if it was protected or not as LL failed to even acknowledge my requests for information? Well documented Searched on dates of AST 2007 (prior to legislation) and AST 2008. LL had failed a section 21 previously as he had not protect the deposit and did not state the current & correct tenancy agreement 2008. He has done it again and said that there was another AST in 2009 and gave this date to DPS (this does not exsist). Does this not prove evasion and entrappment by falsly leading me down a path that I did not have to take? LL did protect the deposit therefore entered into 'an agreement' that will allow for post tenancy counterclaim for not supplying required information? eg in Tensia it states DPS clarification for the purpose of the 'deposit lodged', that the Tenant and LL are still in contract until settled, even after teanancy has ended. Is this a difference between 'Gladhurst' and 'Tensia' and 'Potts' that could be in my favour? 'Gladhurst' never entered an agreement using an deposit scheme so never could use the words of the ACT and the wording of DPS, 'In POTTS case' most of the deposit was returned? Do I have anything here?
  6. Hi Mariner Just reread my post 15. It wasn't clear about the reference I asked for. oops - sorry. I asked for this reference from LL in February 10 when I found the Hyde Housing flat, when I told LL I couldn't afford the house any longer. I was in arrears at this time too but from a few years previously and had paid it off monthly on top of my usual rent to clear. Hyde Housing knew about this and LL even spoke to them so nothing was hidden. But he still refused to write one without me coming up with a new plan to pay him the arrears within 6 months - I couldnt agree to this. I gave my word that the arrears would be paid via email and that we could formalise the agreement. So all he had to write was the truth and state a schedule was made and was being paid off. Plus the general: the property address and how long I had been there - 3 yrs. He knew where I was going! I wasnt running away without any forward address. So yes I know he couldnt give me a false reference but he didnt have to. He made my position far worse by not letting me go and arrears since March 10 - October 10 increased dramatically increased. It could have been better for both of us to stop this spiral getting out of control. But he even sent me emails (in my evidence) -'Its going to far worse for you than it will for me' Anyway - thats it regard to the reference.
  7. Hi Mariner51, I can see that I am confusing, which isnt good! Due to circumstances I could not afford the property any longer (eg eldest child moving out who helped pay rent). LL refused to accept this, for reasons I cannot and will never understand. Shelter and council told me to get LL to serve notice to leave on me as I could not afford the property because if I leave I would make myself intentionally homeless. It confused the hell out of me but the LL was threatening (via email and on phone and just didnt see sense that I needed to move on). The last section 8 served, gave possession to LL back in October/November 10, because I was already in a council property, so Judge only part heard the section 8 on the possession order and postponed the money claim within section 8 to a future hearing. (LL did not attend) This is when I decided to counterclaim for non protection of deposit and prescribed information not given. We have then had 2 court hearings since and both have been postponed as LL has failed to be present to explain evidence in full. Although he was represented by a 2 different local solicitor who didnt have a clue! I can see your point that I actually made myself intententially homeless due to not paying the full monthly rent, but the council new this and paid what I could. They just wanted me to go down the route of being evicted, whilst putting me on a high point bidding system for housing. I eventually got a flat by default as it was not wanted by anyone else, and if I refused I would then have made myself intentionally homeless. So yes hence my name 'confused mum'! but I do think maybe I am in a good position, but even if I walk out without any money, I dont want to owe any either. Just want a clean slate.
  8. At the end of the last hearing, judge told me "not to worry - it will be fine" - I think he could see my dissappointment and possibly me shaking like a leaf. He was lovely and he has named himself on the direction to hear the next hearing. This will be the 3rd time with him as DJ for this case. He has made sure that he has been assigned to this. The first time I met him, he actually printed out court cases Honeysuckle and the Tiensia in the chambers, for me to study and decide if I wanted to continue with my counterclaim. He questioned me last time, and I had studied and was impressed......... I think! This is now my 4th attempt to get this sorted - all 4 times without LL turning up! He has asked for a 4hr hearing. Plus he asked in his direction for both me and LL to provide dates we could not attend from April (last visit). I personally think he has had enough of my LL! Well I am so hoping and praying so.
  9. Thank you Marina 51, Can you read my reply to Ed999 - love to hear your comments
  10. Many thanks Ed999. Your info was helpful. I think you are absolutely right. I hope so! However I am in arrears, as my LL made it very awkward to leave and I had to go down the council route to declare homelessness for me and my kids. I actually asked for him to serve notice on me to leave. He failed the section 21 as no protection of deposit at that time. And he declared the wrong AST (prior to the schemes - feb 2007) Judge threw it out. Anyway to cut a long story short, he then served a section 8 and another 21 through an internet lawyer site. I didnt think it was valid as I checked with all 3 schemes for the correct year of AST which is 2008. Nothing. So I thought it wasn't protected. I was in arrears when leaving the property but mainly due to LL not giving me a reference when I found a HYDE flat. I am a self declared bankrupt (over 4yrs ago and LL knew this) due husband dissappearing, an so needed LL support. But I only got grief! He has protected the deposit under the year 2009 (no new AST agreed or signed). So wonder I didnt find it. I have only found out this date out recently since the last court hearing - PART HEARD. (when he sent me screen dump of the web page from DPS of the info I needed) Do you think Judge will do a SAAD v HOGAN and deduct what he thinks is owed to LL if he doesn't show up? Will he bother to argue for them, reading LL witness statements. Or will he allow the solicitor to fumble his way through? What do you think?
  11. Hi All again Just an update - as some maybe interested in this case so far. Attended court court again in April and Landlord did not attend again. LL representative (a local solicitor who was only appointed that morning) who was not given any evidence papers from either party and just had to wing it! In front of judge, he wanted to postpone it again. Judge, not amused, asked where the LL was as he had clearly directed at last hearing that LL and Me (tenant) were to put on oath to answer questions. Very angry as he had given 3 or 4 hours to sort it out, then asked me if I had any objections. I stated that I still had not had the prescribed information and this has now been postponed 3 times. He understood exactly what I meant and made sure in his direction that the hearing was now 'PART-HEARD' and both claimant and defendant are to attend in early August. He told me that the LL is now too late to give me this information. Plus he ordered LL to pay my costs for the day and to be paid within 2 weeks. LL did, but arrived much later than 2 weeks. I have also had the prescribed information sent to me since the last hearing! Kinda proves that LL hadn't sent it to me previously - what does anyone think? Was also sent to court along with another witness statement! DJ made it quite clear that no more evidence can now be served as the hearing has begun. So what will happen now if LL doesn't show? Am I safe? Any support would be great Thanks in advance
  12. Thanks xoAmyox I have looked up the DPS terms that were not attched to the prescribed information letter sent to me by Landlord Assist, obviously after my LL had put into the scheme and I have pasted the part detailing what should be given to the tenant: b. The Landlord will be responsible for providing confi rmation to the Third Party. c. The confi rmation to each Party will contain: i. Name, address and contact details of the DPS; ii. the Deposit ID; iii. the amount of the Deposit and the date of receipt; iv. the name and contact details of the Landlord; v. the name(s) of the Tenant(s) and the Lead Tenant, if applicable vi. the address of the Tenancy property; vii. start date of Tenancy; viii. tenancy duration (months); ix. a copy of these Terms and Conditions; x. a Landlord’s Repayment ID or Tenant’s Repayment ID, as applicable. i, iv, v, vi. were given to me only! iii - I was given the amount only but not the date of receipt. So you are correct in what you say. Therefore the LL has not given me the details that were crucial for me to confirm if the deposit was actually registered. Especially as he gave a false start date of the AST Agreement and didnt give me the ID number. Although this states in many papers of the legislation to do this or the LL could be fined 3x etc..... we all know that this will be very unlikely to happen due to recent case studies on appeals. TIENSIA -&- VISION ENTERPRISES (T/A UNIVERSAL ESTATES) & HONEYSUCKLE PROPERTIES -&- FLETCHER, McGRORY, WHITWORTH I think the first case listed is still live and no money claim has been finalised. Does anyone know when this is going back court? My other question is, due to my counterclaim being issued before the hearing and before I knew my deposit was actually in DPS, will this still be ok to go ahead as the hearing was adjourned? Surely if the case has not actually been heard in full yet and at the next hearing date I will know all the details I need to know. Will this be seen as a waste of time? Not sure if I have made myself clear. To be honest I really dont care about winning the counterclaim, its just the principal and the unjust situation and the way that the LL has dodged telling me the info. I dont want the LL to win because the Law says so, but we all know she has done wrong and no-one can touch her. If I can prove her dishonesty with this, I will have a stronger case with the evidence I have in proving how she made my situation with arrears far worse. Thanks again Amy
  13. Hi Worriedman1969 What happened at the section 21 court hearing? In my opinion, the LL cannot win a section 21 if your deposit was not in a scheme before issuing the section 21. However, you do need to sort out the arrears and come to some arrangement with the LL asap, if communications are still open. Its still worth a try, and it will look in your favour if you write to try and resolve the arrears. Send recorded delivery. Try a few times, making an offer to repay. Your LL will probably place your deposit into a scheme and will issue with a section 8 for repossession and arrears to be paid. But he has up to the date of the hearing to place the money into the deposit scheme (unlike section 21). Be prepared for the worse eventually. Seek help asasp from shelter and the council. Pay the rent regulary from now with extra towards arrears. I wish you all the best confused mum
  14. Thanks again for your speedy reply. Your point 1) LL via Landlord Assist, did not give me and still has not given me the ref ID number for the deposit into the DPS scheme. I will be asking Landlord Assist for this on Monday. Your point 2) I totally agree - just trying to gather the info he basis his decision on. Your point 3) I moved out of the house in question in October and am now in council accomodation, through their bidding system. I was a high priority. But still had to wait for months. Your point 4) THe housing asociation I was with worked with MOAT and they needed a LL reference. I lost it because LL refused. I have emails telling the Association of my arrears (that happened when I began work again) but they definately needed this reference as evidence details clearly many times. Because I am an x bankrupt due to my husband dissappearing and leaving me with 4 children (ok 1 was over 18 ), this created a difficulty in finding a further more affordable private rental home. My only route was the housing association that had accepted knowing all about arrears, which then failed due to my LL not giving them a reference (obviously up to LL), but this only left me one option whch was to find a cheaper place via the council. They did help me with Housing Benefit which went to the LL but it fell well short of the monthly rental. I had lost the will in fighting with the council and they were now trying to help me find a place. I was told by them to stay put until a place was found. I did what I was told. T The last but one hearing in November for the section 8 allowed the repossession of the property as I was no longer there. The money claim was adjourned to January, (just had) Now adjourned to (April). Does this help? I still dont think I have a leg to stand on but in my view the LL refused to give me a reference knowing I could not afford it and 8 months later I am finally in a flat which is affordable. My hands were tied. Now I face more debt which could have been avoidable.
  15. Hi Mariner51 thank you for your reply. You are correct and I do believe there are tenants (many) that play the system. I am a total novice at being a tenant. I was only told via Shelter and the council of my rights and what I should do as I was not to make myself potentially homeless. I couldn't leave the property and had to wait for a council property, but I couldnt afford the property due to change of circumstances. I did find somewhere previous to seeking help with the council, but my Landlord wouldnt give me a reference for a housing association property, because I was in arrears, from an old debt 3 years previous (due to housing benefit stopping for 4 months whilst the council sorted out my new payment - all because I started work again. I had been paying off this debt to my LL every month over 2 years. But still had some arrears. I begged my LL to let me go but he wouldnt even though I told him I couldnt afford it! I was told to ask for a section 21 or 8 (council advice) so they could start the process of putting me on the bidding system quicker. I did ask for it. He served a section 21 and it months later when shelter advised me of the deposit law etc..... anyway section 21 failed as he didnt deposit the money. I wrote letters asking for the deposit to be protected. Then 6 weeks later he served a section 8 and a 21 and the rest is as above. then the prescribed info came. I checked as already stated. Wasnt showing as protected. So he knew that the valid AST was 2008 after the failed section 21 was struck out! He then deposited the money giving details to DPS of an AST in 2009! No new AST was given or signed. I never searched this year. He was terrible at suporting me with many problems with the house etc..... I would not have botherd with the n208 if he had been honest.
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