Tenancy ended, deposit was not in TDS, what to do?

[lee1986]

I thought the rules were as long as the agent offed the vendor (landlord) the option to put it in the TDS or Deposit portection scheme,(as i know it) then thats as far as the agent has to go?, i deal with residental sales so i may be wrong but thought id just put some imput.

[Planner]

I thought the rules were as long as the agent offed the vendor (landlord) the option to put it in the TDS or Deposit portection scheme,(as i know it) then thats as far as the agent has to go?, i deal with residental sales so i may be wrong but thought id just put some imput.

 

Shouldnt be a problem as I believe both the Landlord and the Agents have been named as co-defendants. It will be down to the judge to sort out who was responsible for protecting the deposit.

[waterbottle]

What would be the implications of not receiving notification of deposit in TDS?

 

If the deposit was with the TDS but the tenant was not notified, or the agent could not prove that the letter was received would the depositx3 still be repayable?

 

Just a thought.

[Esio Trot]

If the deposit was with the TDS but the tenant was not notified, or the agent could not prove that the letter was received would the depositx3 still be repayable?

 

The law states that the prescribed information must be sent within 14 days. Thus all that is needed is proof of posting. As belt and braces, although not mandatory, we insist that the tenant signs receipt for the s213 Notice. No argument in the future then.

[waterbottle]

With respect it doesn't say that it must be 'sent'. It says:

 

(6) The information required by subsection (5) must be given to the tenant and any relevant person—

(a) in the prescribed form or in a form substantially to the same effect, and

(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord.

 

Thus 'given' is the key word. Online dictionary has a few relevant definitions of give:

 

2. To place in the hands of; pass:

 

Law To execute and deliver.

 

The key concept here seems to be one of completion. Sending would then be insufficient, you need to ensure receipt.

 

Does anyone have an opinion on this?

 

Lastly, this new TDS will seem harsh to some but I believe we need to look at it differently. Consider these points:

 

1. Deposits were widely abused by LLs who regarded the money as theirs until given back. Something drastic had to be done to correct this way of thinking.

 

2. The money belongs to the tenant until the LL can 'prove' he deserves it. In light of this, 14 days seems like a short time. Compare cheques clearing for banks. We feel 3 days is excessive. 14 days to transfer money that isn't yours is plenty.

 

Any comment would be appreciated. I studied literature not law and am struggling to teach myself, mostly as a backlash against perpetually getting ripped off. Sometimes I hate this sodding country. This site gives me hope.

 

Lastly, I would love to hear how things pan out with any TDS cases. Are there any links that I have missed?

[waterbottle]

Sorry to post again so quickly. The act talks about 14 days maximum after the money has been received by the LL. What if the agent receives the money and simply doesn't pass it to the landlord? Can this mean that the 3x penalty can be refused on a technicality? Does it say somewhere that LL and Agent are interchangable or one and the same?

 

Probably useful to find this out as soon as possible.

[aBitofaPickle]

My court date is for the 25th March.

I have had responses from 2 of the 3 schemes confirming they were not aware of the deposit.

I am going to follow up the 3rd with a telephone call today.

The defense 28 days to file defense was up on the 15th March. I will phone the court today to see if that has been received.

[Planner]

Good luck, remmeber dont let it become a standard deposit deductions argument, its non-complaince with tds. Anything else neds to be considerd by your LLubmitting a counter claiml.

 

Keep us posted.

[jec123]

My tenancy ended earlier this month.

I had a smooth tenancy, property was inspected every 6 months and a new AST signed for 6 months at a time, (LL choice).

There was no inventory done at the start of the initial tenancy or at any other time.

My latest tenancy was renewed May 07, but as I had made it clear that I would be moving out they let this one run on a month.

My deposit was paid when I first took the tenancy in May 06.

I expected to receive my full deposit back without a problem as any problems with maintenance or anything else were quickly dealt with. The letter I have just received from the agent was that they want to deduct from my deposit to decorate a room. AFAIK there was no TDS, I received nothing during my tenancy to say my deposit was secured.

I have had conflicting advice on whether my deposit would need to be secured because it was paid prior to April 07, but the tenancy was renewed after April 07.

I have written a letter to the agent asking her to return my deposit in full, that I disagree the house is in any more need of decoration than when I moved in and to ask what scheme was used to protect my deposit.

Although there is a lot of information on what to do about TDS if no information is given during the tenancy, I am unsure what, if anything I can do now?

 

Hi

 

As your Tenancy originally began before April 2007 it will be classed as continuous from the date you first took occupancy and would not therefore need to be registered under the new scheme. However, you could possibly put the agent on the spot and say any new Tenancies issued after 6th April 2007 should by law include details of where the Deposit has been registered and ask why this was not included - assuming yours does not.

 

Basically, your agent cannot withhold your deposit, if they cannot prove the condition of the property at the time you took possession. If you contact the Ombudsman of Estate Agents (which every agent should be registered with) they will give you all the support you need.

[aBitofaPickle]

I have spoken to the court, who initially said I could file a judgement as there had been no defense received, but on checking the file said as there is a court date set that means it is not possible to file the judgement and it will be dealt with in court.

I'm at a bit of a loss because the statement they've submitted has a witness statement as part of it which says that it was in a scheme, I know now that it definitely is not. It says the defendant believes no breach of the Housing Act has been made as the deposit was held in a TDS.

I am concerned that when we get to court the solicitor will bring in other laws that I will not be able to counter, as I can't see they have a leg to stand on otherwise.

[aBitofaPickle]

Curiouser and curiouser!

 

I spoke to TDS this morning, they are the one this agent uses, and asked for a response to my letter. The operator checked said I wasn't in it, but that he did not have my letter on file as it goes to their head office branch, I gave them my address and email as well, so hoping for a response before I go to court. Anyhoo this scheme uses a PO address, so I phoned Royal Mail to get the address behind this (yes, anyone can do this). They knew which company it was for, but said it had lapsed, so I'm assuming they did not get my letter. I had done a fair bit of searching via google and yell, but they have a non geographic number and I could find no other address than the PO address, which if it really isn't working is pretty worrying for a government appointed scheme holder.

[Planner]

Hi

 

As your Tenancy originally began before April 2007 it will be classed as continuous from the date you first took occupancy and would not therefore need to be registered under the new scheme. However, you could possibly put the agent on the spot and say any new Tenancies issued after 6th April 2007 should by law include details of where the Deposit has been registered and ask why this was not included - assuming yours does not.

 

Basically, your agent cannot withhold your deposit, if they cannot prove the condition of the property at the time you took possession. If you contact the Ombudsman of Estate Agents (which every agent should be registered with) they will give you all the support you need.

 

Actually reading the thread will avoid such embarassment for yourself in the future. Abitofapickle has confirmed that they signed a new agreement back in May 2007.

[Planner]

I have spoken to the court, who initially said I could file a judgement as there had been no defense received, but on checking the file said as there is a court date set that means it is not possible to file the judgement and it will be dealt with in court.

I'm at a bit of a loss because the statement they've submitted has a witness statement as part of it which says that it was in a scheme, I know now that it definitely is not. It says the defendant believes no breach of the Housing Act has been made as the deposit was held in a TDS.

I am concerned that when we get to court the solicitor will bring in other laws that I will not be able to counter, as I can't see they have a leg to stand on otherwise.

 

If anyone turns up i wouldnt worry to much. The deposit is either protected or it isnt. There isnt any "law" that can change this fundemental fact. Remmber its for them to prove compliance (both putting it in the scheme and sending you the prescribed information within 14 days), not you to prove it isnt in a scheme. Obviously though the more info you have the better. Try and get email/written confirmation from the last outstanding scheme.

[jec123]

If your deposit has been registered with one of the three schemes, you would have received verification in the form of a certificate or such. Also, this would have had to be included as required information on your tenancy agreement. You need to check thoroughly - search on the internet typing in Tenancy Deposit Protection Scheme and this will give you all the information you require.

[Planner]

If your deposit has been registered with one of the three schemes, you would have received verification in the form of a certificate or such. Also, this would have had to be included as required information on your tenancy agreement. You need to check thoroughly - search on the internet typing in Tenancy Deposit Protection Scheme and this will give you all the information you require.

 

Jec, have we not just had the disscusion on reading the thread? the poster has confirmation from two of the schemes that the depsoit isnt there and a verbal confirmation from the third. Not to sound rude but have you anything useful to add?

[aBitofaPickle]

Thanks Jec, it is good of you to join in, but if you read the thread from the beginning you will see the points you raise have already been covered.

[Esio Trot]

It says the defendant believes no breach of the Housing Act has been made as the deposit was held in a TDS.

I am concerned that when we get to court the solicitor will bring in other laws that I will not be able to counter, as I can't see they have a leg to stand on otherwise.

 

Don't worry too much about the "believes no breach of the Housing Act has been made as the deposit was held in a TDS" bit. It may be held in a TDS now. Your case is that you were not given the information in 14 days as required by statute.

 

I don't like the penalty side of the regulations: it is absolute; there is no defence if the 14 day rule is breached. Either the landlord has evidence that he complied (signed receipt from you!) or he doesn't. If he can't show he complied, he is stuffed.

 

BTW, if he introduces evidence on the day that you have not seen, make it plain that you are not happy. The court works on the basis that the Judges time is valuable, and that it is not fair for either party to "hijack" the hearing with undisclosed documents. If this should ever happen ask for an adjournment so you can take proper advice.

[waterbottle]

Good luck pickle. I was interested to see that it is up to the LL/agent to prove that they complied with the act. Why is that? Why not Pickle having to prove non compliance?

 

For information, my deposit was protected but not within 14 days. Neither the scheme nor the agents nor the LL sent me anything to confirm this so it seems that I have a claim. I requested info from the scheme and they sent me a form with no signatures in the specified places and stating the dates of protection BUT...

 

It is not hard for people to provide something fake i.e. certificate of posting and letter. What constitutes proof? Is it enough for the LL to show he has sent the info?

 

Once again, best of luck pickle!

[clavileno]

I have clicked on your user name and had a breif read of other posts you have submitted in other areas of the form. Its pretty apparent that your not disagreeing to correct a mistake but just disagreeing for the sake of it, which is disapointing.

 

With respect, I do not disagree for the sake of it - even now. However just because I don't support the sometimes-prevailing view on these forums that everyone is hard done by is hardly cause for disapointment.

 

I've only made 44 posts so far. I haven't once posted for the sake of posting a disagreement (I really don't have the time); I've expressed views which are rooted in fact and/or personal experience. The only serious argument I've had related to mental health and, since I have rather more experience of it from all sides of the debate than most of the other posters on the topic, I'm afraid I'm quite qualified to comment - however much it goes against the party line.

 

As to the issue at hand, you will please note that I have not said that you're wrong. I have, however, said that I don't believe the issue is clear-cut as the legislation is presently worded. As ever in law, the ruling of the court is (relatively) supreme, which is why counsel's opinion is seldom actionable if a case goes the "other" way. You may express a view, but it would be helpful (to the OP and to others who come on this forum for guidance) if you expressed your view as just that, a view, rather than "fact".

[clavileno]

Either the landlord has evidence that he complied (signed receipt from you!) or he doesn't. If he can't show he complied, he is stuffed.

 

With respect, this is nonsense. In precisely the same way as anybody else can, the landlord can sign an affadavit stating that he/she posted the required information on the such-and-such day. The landlord can also rely upon existing legislation as regards assumptions as to the delivery of first class post and the corresponding effective service date.

 

The law of such things has not been negated by the legislation relating to deposit schemes.

 

If the claimant wishes to challenge that affadavit, he/she will have to demonstrate why the affadavit should not be believed. The onus is therefore back on the claimant to do so. The claimant needs to be prepared for this in court (if appearing as litigant in person). Of course one attack might be "it is well-known that post goes missing, why did you not get a receipt / send it recorded / whatever" and that might introduce sufficient doubt, but it is not the "slam dunk" that you seem to think.

 

It is for this reason that I personally believe an action based solely on a single cause (not receiving notification) is a bit of a lottery, and may well not be worth the risk of instructing a solicitor over. But as one of a number of causes it makes sense, where another is an allegation of non-compliance with the requirement to put the deposit into the TDS.

[waterbottle]

This is enlightening. A poster mentioned the concept of 'natural justice' trumping the wording of the act as regards claiming 3x compensation. Can someone explain the argument in a bit more detail so we will know what to expect?

[waterbottle]

bump re the above post. It may be very important. Also, good luck tommorrow 'abitofapickle'. Let us know what happened ASAP!

[aBitofaPickle]

I'm a bit anxious as I am in court in a couple of hours, but will let you know how it goes when I return.

[aBitofaPickle]

Well, that didn't go quite as well as I expected. I felt the judge was on the side of the defendant from the start, the first thing he asked was if I would be prepared to discuss with them the amount I should have back.

 

He is setting a trial date for 1.5 hours.

Changing it to Part 7 and Small Claims.

 

He wrote in his notes that I was not prepared to mediate or discuss the amount with the defendant and said he would bear this in mind when preparing the costs if I lose in court!

 

I pointed out to him that I did not feel that adequately represented my feelings as I had expected one of the TDS to be able to mediate in this situation.

 

The defendant asked to speak to me when we left the court and said he would like to settle out of court as they do not want the publicity. He is going to speak to his solicitor (who wasn't there) and get back to me within 24 hours with an offer. From the way he was speaking I expect this to be the full amount if my deposit.

[Planner]

Well, that didn't go quite as well as I expected. I felt the judge was on the side of the defendant from the start, the first thing he asked was if I would be prepared to discuss with them the amount I should have back.

 

He is setting a trial date for 1.5 hours.

Changing it to Part 7 and Small Claims.

 

He wrote in his notes that I was not prepared to mediate or discuss the amount with the defendant and said he would bear this in mind when preparing the costs if I lose in court!

 

I pointed out to him that I did not feel that adequately represented my feelings as I had expected one of the TDS to be able to mediate in this situation.

 

Its not open for negotiation - its set put in statute!

 

Oh dear whens the court date then?