Tenancy Deposit Scheme

[Mr Pipps]

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

 

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?

 

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.

[RentedAndRankled]

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]

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

 

No, but that said its not something I activley monitor!.

 

The Part 8 ( N208 ) route, is the route that the court advises you to use, Part 56 of CPR will shorlty be amended to say that s.214 claims must be conducted via Part 8. Hows that for legal advice?!

[Resoli]

Thanks expressed to RentedandRankled for replying to Mr. Pipps before I could. Without repeating many of his points, here are my thoughts.

 

Firstly, people have asked for disclosures of experience. Although not legally qualified I have two key areas of experience to disclose - one, I law at undergraduate level, two, I've worked for over a year in a lettings market, albeit nothing in relation to any of this.

 

Your post made for rather interesting reading. And it sounds to me as if you have approached this matter by firstly quite willingly believing any old yarn that the first man in the street has offered to spin for you - and only then subsequently deciding to ask someone to assist you with the Law. For future reference, that is the wrong order to be dealing with such matters... Firstly, allow me to point out that I am not required to prove anything to anyone. I am posting here simply to provide some much needed assistance to people like you.

 

Mr. Pipps, I asked you for evidence of what you were / are saying is accurate because there are differing viewpoints on how the legislation can be interpreted. Ed, previous page, has a differing interpretation. RentedandRankled has a differing interpretation, I have a differing interpretation at this point. Surely the point of CAG forums is to people can get together in a neutral atmosphere and help each other?! By pointing us all to the sections you interpret we can all work together to understand it better. How is that a bad thing? You seem to attack the idea that you need to substaniate your viewpoints.

 

Mr. Pipps, you made a key, and incorrect, assumptions that I believed the lines fed to me by my agent. For your information, One - LA have admitted they failed to protect my deposit and that I may take action if I wish. Two - I've been researching this myself prior to taking action - hence my questioning of s.214 - there's no point taking action if destined to fail.

 

Righty to matters:

 

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.

 

RentedandRankled goes through s.213(6)(a) which QUALIFIES the grounds upon which an order for 3x deposit may be made. It is ONLY if the initial requirements have not been complied with OR the proscribed information (see Tenancy Deposit Order 2007) hasn't been provided. It does not say that the penalty is applicable for not protecting within 14 days is 3x because to do that would be require the section to SPECIFICALLY reference 14 day requirement.

 

I quote RentedandRankled because no-one seems to have anything that contradicts him:

 

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).

 

They key therefore has to be - what are the intial requirements of TDS / mydeposits.co.uk? Does anyone on the forum know?

 

Planner - do you have this information?

 

Generaly, please, everyone, challenge each other's understanding of the legislation and use examples - cases, documents, materials, legislation etc. It is through questioning each other's understanding of the HA we might get to what it really means. Mr. Pipps thinks that the section gives the punishment for non-compliance with the 14 day rule but hasn't shown us where is understanding comes from (in the words of the act). He makes a fine point about the intention of the legislators, a point with which I agree, and how the HA may not be written as they intended. Never the less, it is the law as written that is applied.

[Resoli]

Found the scheme rules:

 

http://www.mydeposits.co.uk/pdf/mydeposits_Scheme_Rules_for_Landlords_v2.pdf

 

See: B1.1:

 

Section B: Deposit Protection

B1 Deposit Protection Criteria

B1.1 Subject to observance of the Scheme Rules you may protect any Deposits collected from a Tenant/Relevant Party, with Us.

You undertake to obtain protection from Us within 14 days of receiving the Deposit from the Tenant/Relevant Party.

 

My understanding of that is failure to protect within 14 days, equals no protection under TDS due to failure to abide by the scheme rules. Anyone else think the same?

[RentedAndRankled]

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.

[Resoli]

Hmm... have a look at 8.1 and 8.2, suggests that the money should be paid / protected within 14 days:

 

"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."

 

If not protected within 14 days - i.e. the information required under 8.2.2 isn't lodged (how can it be if the deposit hasn't been protected?) - the initial requirements of the scheme are not met.

 

So, under s.214, if the initial requirements are not met, the 3x penalty becomes payable? Agreed?

[RentedAndRankled]

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.

[Planner]

No, but that said its not something I activley monitor!.

 

Just for you Resoli!

 

http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=12900&c=1&eclipse_action=getsession&eclipse_action=getsession

[RentedAndRankled]

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.

[Resoli]

I believe the technical term is... bugger! Sheffield is my County Court too!

 

Hmm... I'm tempted to try the argument that a deposit protected late with TDS / mydeposits.co.uk outside the 14 days is in breach of the scheme rules, which in turn is a breach of the initial requirements.

[butty_a]

That ruling still tends to agree with what pipps was saying though, the money had been protected but he failed to notify the tennant. common sense prevailing there i think because it was protected after all. If the money had not been protected i think the out come would have been different because a failure to notify and a failure to protect are two completely different things, one creates a little unease for the tennant the other potentailly creates a big head ache come kicking out time. I think the ruling goes with the spirit of the law as it was intended to be. we are fighting the banks for ripping us off for what are in some cases slight mistakes of miss managing our money by a few pounds, lets not get into the frame of mind of screwing over landlords for what is more than likely a slip of the mind by forgetting to give you a certificate but for those who dont protect the money then they should feel the full force of the law to encourage the rogues out there to stop trying to turn us over.

[Joa]

I am not sure what's happening here with regards to the applications under s.214, so I thought I'll post this just in case. I have not had time to pop in here at all recently but whole libel case ( bloody ridiculous) has brought me back.

 

One more thing- despite the clear recommendations below, I have so far been using N1 for my clients. Never had any comments or challenges about it from the courts.

 

taken from http://www.hmcourts-service.gov.uk/docs/infoabout/housing/section-214-application.doc

 

Tenancy Deposit Protection – Housing Act 2004

 

County court applications under section 214 of the Act

 

 

Background

1. Landlords and agents are required to protect their tenants’ deposits under a scheme set out by the Housing Act 2004 (“the Act”) .

 

2. Under these provisions, the landlord or agent is required to place any deposit into an approved tenancy deposit scheme (“TDS”) within 14 days of receipt. The landlord is also required to provide the tenant with confirmation that the deposit has been put into a TDS.

 

3. Where a landlord fails to do this, a tenant may apply to the county court to compel the landlord to repay the deposit or place it in an approved TDS (see section 214 of the Act).

 

“Section 214” application to the county court

4. The application under section 214 can only be made on limited grounds. If the court is satisfied that those grounds have been met, the court must either order the repayment of the deposit or order the person who appears to be holding the deposit to pay it into a designated account under a authorised custodial tenancy deposit scheme. The court must also order the landlord to pay a sum of money equal to three times the amount of the deposit.

 

CPR Part 8 procedure

5. The appropriate procedure for starting a “section 214 claim” is provided by Part 8 of the Civil Procedure Rules (CPR). A tenant will therefore need to follow the procedure set out in Part 8 of the CPR and the accompanying Practice Direction and pay the appropriate court fees in accordance with The Civil Proceedings Fees Order 2008 (if not exempt). Details about the correct claim form to be used (Form N208 ), the contents of the claim form and filing of evidence in support of the claim, and also the procedure to be followed by the defendant landlords are set out in this part of the CPR – for more details see footnote .

 

6. Detailed guidance on completing Form N208 and subsequent action to be taken by the defendant landlord is also set out in the relevant forms as attached below (also available in hard copy from any county court office):

• Part 8 Claim Form (N208 ) http://www.hmcourts-service.gov.uk/courtfinder/forms/n208_1000.pdf

• Notes for Claimants (Form N208A) http://www.hmcourts-service.gov.uk/courtfinder/forms/n208a_0499.pdf

• Notes to Defendants (Form N208C) http://www.hmcourts-service.gov.uk/courtfinder/forms/n208c_1202.pdf

 

7. To avoid any confusion, Part 56 of the CPR will be shortly be amended to state that section 214 applications must be started using the Part 8 procedure.

 

Disputes after deposit is placed in a TDS

8. Please note that this guidance is only aimed at resolving disputes about placing a deposit into a TDS. It is not aimed at resolving disputes about the return of a deposit that has been placed in a TDS – e.g. at the end of the tenancy. Each TDS scheme is supported by a free alternative dispute resolution (ADR) service whose role is to resolve such disputes about the return of a deposit that has been in a TDS. Use of the scheme’s ADR service is not compulsory but their purpose is to avoid such disputes reaching the courts.

 

9. If however parties to such disputes do decide to use the courts to resolve these particular matters, they are advised to seek separate advice about appropriate court procedures that may be available.

 

Further Help and Advice

10. There are other HMCS leaflets available from the HMCS website Her Majesty's Courts Service - Home or county court offices which are designed to help claimants and defendants, but they can only give a general idea of what is likely to happen. Court staff can advise on court procedures and provide the forms needed and help to fill them in, but they cannot give legal advice.

 

11. Free legal advice may be available from Citizens Advice Bureaux, law centres or independent advice agencies. Contact details can be found in the local phone directory and details may be displayed in local courts. Alternatively, contact Community Legal Advice on 0845 345 4345 or their website at Community Legal Advice

[MrShed]

Welcome back joa !!

[callumsgran]

Aye welcome back hunni, we sure have missed ya! ;)

[dotStored]

I've recently moved out, and the landlord without consulting us has decided to spend £2500 of the £2700 deposit on cleaning, painting etc which in our opinion was not necessary. Any thoughts? Looks like we are going to have to use to ADR scheme which isn't an exciting prospect!

Thanks for your help

[Mr Pipps]

Here's an update for the the scoreboard.

 

A withheld tenancy deposit of £1,012.50, which had originally not been protected under a Tenancy Deposit Scheme, was immediately repaid following the initial claim some 12 months ago.

 

In the County Court today, a TDS penalty of £3,037.50 was ordered to be paid to the claimant within 14 days. Costs of £118 were also awarded.

 

So you see, that's the difference that a litigant in person can make, when they're also legally trained!

 

And so to all the rumour-mongers, naysayers, patronising corwards, and the great legally ignorant of this forum - who all insisted on so sagely offering their irrelevant and erroneous comments on a matter which they clearly do not understand - I would like to wish you all the very best in your own respective cases. It sounds like you'll need it.

 

The score so far: Honest tenants 'one', rogue landlords 'nil'.

[help me kick his butt]

Hi Mr Pipps, I would really like the details of this case as I think it is always good to see cases won by tenants.

I am one of the above mentioned legally ignorant, but am trying to learn as much as I can from this site and solicitors. I have indeed found alot of the comments on here very helpful.

May I ask why you sound so angry?

Regards

[callumsgran]

I think he's a bit peed off with those that have brought up the case where the tenant got the wrong judge and lost their case

[Mr Pipps]

I am not at all angry! Whatever possibly gave you that idea? I've just won £3,000 in legal system prize-draw! I couldn't be happier!

 

Why have I expressed a little old fashioned indignance, and chosen to rub it in a little? Well, take a look at posts 33 through to 62, and you might begin to see what I mean. I think that some people need their faces to be rubbed in it a little, in order to learn. You, sir, were certainly not included.

 

You see, there is a big difference between being legally ignorant and knowing it, and being legally ignorant and yet think that you're an expert just because you've 'seen a thing or two' in 'your time'. Some of the posts on this thread by suposed 'experts' so far, have been farcical, and of no help to this forum or the public awareness of the law whatsoever.

 

Finally, Callumsgran, I don't believe there's any such thing as a 'wrong Judge'. Only a wrong claimant. Hence, my post.

[help me kick his butt]

Fair enough, I only hope my case goes aswell, Did you have a lawyer?

Could I possibly ask more about the case?

By the way, Im a madam not a Sir x:D

[help me kick his butt]

On reading more of your posts, am I right to presume you are a lawyer?

[callumsgran]

Finally, Callumsgran, I don't believe there's any such thing as a 'wrong Judge'. Only a wrong claimant. Hence, my post.

 

 

 

 

Sorry mr.pipps i was going by whoever it was that said that that judge made a mistake but luckily didnt set a precedent

[Mr Pipps]

No probs, Callumsgran.

 

I feel it's important to remember, however, that District Judges are not infallible. Nor are they usually very well prepared or informed.

 

They usually spend a disproportionate amount of time trying to get their heads around the most basic facts, before then relying on something they heard about in a broadly similar case sometime before.

 

However, if a claimant would like a Judge to actually make a correct ruling, as mine did, especially in a new and potentially controversial area of law, then the claimant must be prepared to gently and politely hold the Judge's hand and guide them slowly to the right answer using a detailed statement of case and a robust adherence to the legislation.

 

A District Judge is very much like a computer or a calculator: "Rubbish in = rubbish out."

 

That's why I won, other's haven't, and many more don't even seem to be willing to try.

[callumsgran]

I see your point

 

You will stick around to help us wont you?