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

[aBitofaPickle]

My documents were received by the agent and landlord this morning. I had a voice mail left from the agent asking me to get in touch, as they have 'eventually' had authorisation from their client (the landlord) to come to a settlement.

All the docs to be relied on in court should have been here this morning, and I've had nothing from them.

Just wondering how you all think I should proceed, should I speak to them, if i do what should I accept as an offer, (I'm pretty certain they are only going to offer my deposit in full back) or should I go through the court.

[RentedAndRankled]

Sounds good pickle.

 

In your shoes, with your rolling deposit, I would settle for the full deposit back, plus any costs (court fees, etc.), plus interest.

 

I would have been tempted to say you should settle for statutory penality of the full deposit plus 3x, but given the recent outcome of the recent rolling deposit case I think that they would reject it out of hand and you'd end up in a hearing the outcome of which could go either way.

[aBitofaPickle]

Thanks, I'm not sure, I'm tempted to take it, as I have remission for my costs, and unlikely to do worse in court, the least I;d get is my deposit returned (I'd have thunk). and 3* £825 would be very nice.

[Planner]

Have you rang?

 

what have the offered?

[aBitofaPickle]

I haven't rang yet, figure I have a little time, and wanted to get the opinions of people on here.

[waterbottle]

It's easy to say this when my neck isn't on the line but I would love you to go for the throat. If you win, you'll get 3x deposit plus (some of?) your deposit. If you lose you'll get some or none of your deposit.

 

Could you not just apply for judgement as they have submitted no defence?

[aBitofaPickle]

I don't know how much time they'll give them to submit a defence. I thought it would mean that there were no documents they'd need in court.

[RentedAndRankled]

If they don't submit anything they can still produce documents in court, all that will happen is that it will annoy the judge and you'll get the option of adjourning for a couple of weeks in order to study their documents. They may state that they were trying to negociate a settlement with you which is why they were late filing documents.

 

You may also want to check if the negociations are "without prejudice", if they don't mention it then it probably isn't, but details of without prejudice negociations can't be used during the hearing, so if you write anything which may weaken your position then make sure you mark it "without prejudice".

 

One other thing, don't stop the court case until you have the settlement. It's one thing for them to say "Yes, we'll give you your deposit back" and another for them to do it. Point out to them that until the cheque has cleared in your account you will be continuing the action.

[billy_79]

Thanks to Landlordzone I now have a copy of the parliament publications where they discuss the implementation for the scheme and how it will apply to tenancy's renewed after April 07.

 

Pickle, can you give a link to these publications, or explain whereabouts on lanlordzone I can find them?

 

TIA

[aBitofaPickle]

Hi Billy, sorry to take so long getting back to you. I've been away for a couple of days. This thread on landlordzone is worth a read.

This is the link to the parliamentary stuff.

 

I have printed out that paper and used it in my court bundle.

 

Yesterday the defendants bundle came through (quite late, and not signed for).

 

I still haven't called, but will on Monday to find out what their offer is, and will make sure the call is "without prejudice".

 

Their bundle is a copy of the information they sent prior to the last court date, and focuses on them wanting the part of the deposit back for decoration. The statement in the bundle still says that it is with a TDS but they have not included any information to back that up.

 

When/if I go to court, and should I get the same (unfriendly) judge as before, and the defendants questions are about the decor to the room. I intend to say that I refuse to answer those questions as it is not what we are there for and that they must bring their own case if that is the matter they wish to discuss, but what if the judge directs me to answer?

[billy_79]

Thanks pickle, that is very useful to me.

 

I would suggest that you don't say that you 'refuse' to answer the questions, but make it clear that they are totally irrelevent to your claim. That way it at least it doesn't make you look un co-operative.

 

Where you asked about interest the other day - whilst you aren't entitled to it on the 3x 'fine', don't forget to ask for interest on the actual deposit that they are still holding (either from the date of your tenancy renewal or from when your tenancy ended, it's up to you).

 

Make sure you point out that their bundle arrived late, does the post mark prove this?

 

I am on a really sticky wicket with my claim now (replacement tenancy agreed after Apr 07, original deposit from before Apr 07), as our (ex) LL has put in a huge counterclaim against me (even though they partially refunded our deposit, the are now claiming a much larger amount ). I've paid out quite a bit now in court costs, but with the revelation that leigh123 on lanlordzone lost on this point, the worst case is that I could end up massively out of pocket - court costs plus their counterclaim.

 

I do feel that if leigh123 had presented info like the above parliamentary publication, and the other guidance that states renewed tenancies should be protected, it might have swung their case -the judge even admits that she might have been wrong.

 

I am also considering using a solicitor in court, although I am concerned that the judge might not like that, especially if the solicitor is very 'forward'/argumentative.

[aBitofaPickle]

I am lucky in that I don't have to pay my fees, so I think it is worth me fighting. I am just very worried that I will mess it up come the case itself and end up in the same position as Leigh, although they should at least order that I get my deposit back. I wonder if I would be able to get LA for a solicitor, it wasn't something I considered.

 

They were supposed to be received by 23rd April. The postmark on Envelope is for the 23rd and they posted 2nd class.

[billy_79]

Pickle, I don't think LA will pay for a solicitor for small claims. I would probably have been elligible for LA, but I didn't bother as I didn't know about all the extra court costs that mount up.

 

You migh have missed it, but the housing act states that not only must the landlord protect your deposit, but they must give you the details of the scheme they are using, and that the scheme itself confirms that it's protected:

 

Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—

(a) that the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or

(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

 

Therefore, they cannot use the defence "but the deposit is protected" without giving you the details of it.

[aBitofaPickle]

A week today until my court date and to say I'm anxious is an understatement. I have returned the call to the agent. He said he is aware they are in breach and will have no alternative but to hold up his hands when we get to court. I should have asked what they were offering, but said I would accept my deposit + 3 times. As they expect to be found guilty they would have that plus court costs, and maybe some interest, so now just waiting to hear back. If they agree the amount I don't want to stop the case and then not get the money. How can I make sure that does not happen?

[RentedAndRankled]

Talk to the court, explain the situation, and see if they can advise you the latest date by which you can cancel the hearing.

 

Once you have that date say that the money must be in your account before that date.

 

Banks can transfer funds in a few hours, so if they try to play you by saying that they want time to pay by cheque, or that they can't transfer the money quickly, then say that is their problem and they should look at using a CHAPS transfer which, if they request it before 1pm usually is credited in your account the same day.

 

If they pay late then explain in the hearing what has happened.

 

Remember one thing; They've had up until now to pay up and they chose not to, so don't do them any favours because they chose to leave it until now.

[Steve__M]

Good luck pickle.

 

But I think the fact that Parliamentary Under-Secretary of State for Communities and Local Government, Meg Munn, does not correctly understand the law is somewhat concerning. From the link to the parliamentary publication

 

House of Commons General Committee on Delegated Legislation

 

Secondly, if the court directs a landlord or agent to pay the deposit into a scheme and he or she refuses, the court must order the landlord to pay the tenant three times the deposit amount.

[aBitofaPickle]

Thanks for the comments, Agent did not get back to me yesterday so seems we are gong to court.

[Planner]

I have some good news for you Bitofapickle. Theres been another sucessful case on the landlordzone forums! that appears to be very similar to yours. The AST was renewed after 6th April 2007 and the agents/LL where arguing that therefore the depoist didnt need to be protected! This case has now been won and we are just waiting for the details to be posted DPS Case going to Court - LandlordZONE Forums

 

Should be ready in time for your appearance!

 

Keep your eyes peeled.

 

Paul

[aBitofaPickle]

woo hoo, just heard from agent, they want to settle for what I asked, deposit x3 £3300, going to give them my bank details by email, should have the money this afternoon.

 

Will let you all know.

[Planner]

Good Stuff!!!!!!!

 

Dont drop anything until that money is in your bank!

[waterbottle]

My hearing is tomorrow. The case is more clear cut but the barrister says the chances of success are 'reasonable'. I hope that's because it's new legislation. Eviction is also on the cards. Two discretionany grounds. I am hoping all goes well.

[phat256]

good luck waterbottle and wish u the best in court

[aBitofaPickle]

What happened Waterbottle?

I got the money by CHAPS today, think they were taking the pee though. Court date is tomorrow. Have sent a letter to the court informing them of the outcome.

[Planner]

What happened Waterbottle?

I got the money by CHAPS today, think they were taking the pee though. Court date is tomorrow. Have sent a letter to the court informing them of the outcome.

 

Ring the court as well pickle just to confirm that its all setteled and you wont be attending.

[aBitofaPickle]

I called today, but they didn't take the case number, just said to write in, but ';ll call again in the morning.

Thanks for all of your input to this thread Planner. I couldn't have done it without your help.