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

[aBitofaPickle]

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?

[Ed999]

Read this thread: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/117572-unfair-deposit-deductions.html

[aBitofaPickle]

I had already read that one, my query was not about the deposit, but about the lack of TDS, and what if anything I can do after the tenancy has ended?

[Planner]

Please ignore Edd999 ,aBitofaPickle, as you can see hes becoming a bit of a liability to the forum.

 

Either the Landlord or the Agents, have a duty to protect depsoit moneys paid on or after 6th April 2007 in a TDS scheme for new/renewed ASTs. They then have to inform you, within 14 days, of certain details of said TDS where your depsoit is.

 

Now that your tenancy as finished, youare still entitled to make a claim for non-compliance with TDS (the non-compliance being not in a scheme at all or no information within 14 days).

 

First things first, you need to find out if it is in a scheme from the agents. If it is then you can register a challenge with the relevant TDS about the amount of the depsoit they want to withold and also seek their advice on the non-compliance with the 14 days "rule".

 

If its definatley not in a scheme, then you need to bring about legal action through the county court (small claims). The concensus seems to be (apart from Edd999) that you need to use form N208 to put forward a claim.

 

Be 100% sure that your deposit isnt in a scheme first, then post back and we can crack on with some help for you in claiming.

[aBitofaPickle]

Wrote to the agent on the 20/12/07 asking for full return of deposit within 10 days and also for information on which TDS was used, no response to date! Do I follow up or go the county court route.

[Planner]

Then its time to submit a claim to the county court to get it back. If you signed a new tenancy (I assume this is what you mean by "renewed") then its time to make a claim in order to have the original deposit returned and the x3 "compensation".

 

Unfortunatley the correct route of doing this is in question at the moment.

 

There are two/three schools of thought.

 

1) - You make a claim using the N1 county court claim form for the monetary amount of the original deposit +x3 the original deposit (e.g. original deposit of £500 + (x3) £1500 = £2000). This will cost you the relevant county court fee applicable to the amount you are claiming.

 

2) - You make a claim using the N1 county court claim form for "something other than money". This will cost you £150. You dont claim for a monetary amount but instead ask the judge to consider the question of complaince with TDS, and the amount you expect to recieve.

 

3) -You make a claim using the N208 (Part 8 )claim form. Cost of £150 I believe. In this you ask the judge to consider if TDS has been complied with and the amount you expect to recieve.

 

I think option 3 is the correct way to go at the moment, although we have yet to here of any results (TDS claims would have only started trickiling in October/November and are yet to be heard). I suggest you wait if you can until theres a successful outcome reported. Alternative push forward with the N208 claim as this can be "turned" into a N1 claim should the judge consider that the most appropriate route.

 

You will also need to decide whos responsibility it was to protect the deposit. If the contract is silent on this I would name both the Landlord and Agents as defendants.

 

Let me apologise for my spelling today!

[aBitofaPickle]

Thanks for your help planner, can I do the N208 via moneyclaimonline, or do I need to go to my local court?

Is there anywhere I can check that ALL landlords have to subscribe to this scheme as my landlord is a particular body of people?

[aBitofaPickle]

I managed to download the form, although it says to use 2 if there are 2 defendants. I can't afford 2 lots of £150.

What would be the best way to word that I want my deposit returned and I would also like x3 as they did not place it with a TDS, is there legislation I should quote?

[Planner]

You use two forms but you only pay one fee.

 

You will list both defendants on both forms at the top in the defendant(s) section under claimants and then in the box at the bottom on the first page headed defendants name and address you will put one defendants name and address and then on the second form you will put the second defendants name and address. This is counted as one claim so one fee.

 

You need to look at section 212 (Chapter 4 ) onwards of the 2004 Housing Act; Housing Act 2004 (c. 34)

 

Have a look your self and come up with some wording, I have posted somewhere previously on LandlordZONE Forums - Residential Letting Questions (under the same user name) some suggested wording, unfortunatley I havent got time to look at the moment for it, as at work.

[aBitofaPickle]

Thanks so much, exactly what I needed

[aBitofaPickle]

This is what I have written if you could check it over I'd be grateful

 

The applicant makes a claim under the Housing Act 2004 section 214(1a) that the deposit of £825 as required in the Assured Shorthold Tenancy for

'the rental address

' was not paid in to an appropriate tenancy deposit scheme.

 

1) The applicant asks that the court makes an order in accordance with the Housing Act 2004 section 214 (3)

- (a) "order the person who appears to the court to be holding the deposit to repay it to the applicant"

 

2) The applicant asks that the court makes an order in accordance with the Housing Act 2004 section 214 (4) –

"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.”

After reading landlord zone it would seem like a good idea to send a copy of this with a letter before action to the landlord, d'ya think?

[Planner]

In terms of the LBA - If this was simple deposit return I would say yes, as its much more complicated than that and I would suggest there is next to no chance of the deposit being returned never mind the x3 "compensation" on top, I would submit the claim straight away.

 

Submitt a copy of the letter you sent to the agents back in December with the court bundle.

 

In terms of what you have written for the claim form;

 

The applicant makes a claim under the Housing Act 2004 section 214(1a) that the deposit of £825 as required in the Assured Shorthold Tenancy for 'the rental address' was not paid in to an appropriate tenancy deposit scheme (in accordance with section 213 (1) of the 2004 Housing Act) or the applicant did not recieved the prescribed information concerning which Tenancy Depsoit Scheme was to hold the deposit, within 14 days of the defendants recipt of the deposit (in accordance with section 213 (3) of the 2004 Housing Act).

 

1) The applicant asks that the court makes an order in accordance with the Housing Act 2004 section 214 (3)

- (a) "order the person who appears to the court to be holding the deposit to repay it to the applicant"

 

A total of £825

 

And

 

2) The applicant asks that the court makes an order in accordance with the Housing Act 2004 section 214 (4) –

"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.”

 

A total of £2475

 

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from (Insert Date deposit should have been returned) to (Date you Submitt the Application) of (Insert £ worked out using the court intrest rate calculation from their website) and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of (Insert £ worked out using the court intrest rate calculation from their website).

 

I am therefore seeking payment of (Insert £ of original deposit + X3 Deposit), court fee and interest.

I have tweaked the wording here - http://www.consumeractiongroup.co.uk/forum/tenants/126261-tds-court-claims-wording.html

[aBitofaPickle]

Thank you, I've edited that. I thought the LBA might be a good move as the courts like to see that everything has been done to try to sort the issue before going to court and both the LL and agent are both national organizations.

[aBitofaPickle]

Thanks for your help planner, the courts should have received my claim today. I'll keep the thread updated.

[danielson81]

good luck with that mate.

 

Let us know how you get on and how long it takes to get to court.

 

Think I will be doing something very similar in a few months!

[Vic130274]

Hi OP, please do keep this thread updated ... it's very useful and I'll be in exactly the same position come Feb (Deposit paid pre April 07 but new AST signed after April 07 - No inventory).

[aBitofaPickle]

I got the claim form back as the check needed to be made out to HMRC. That's done and sent back so they would have received it Friday.

I still think it would have been better to send an LBA, but think I might have got my deposit back but no chance of the 3x.

I'll keep it updated though.

[clavileno]

I got the claim form back as the check needed to be made out to HMRC. That's done and sent back so they would have received it Friday.

I still think it would have been better to send an LBA, but think I might have got my deposit back but no chance of the 3x.

I'll keep it updated though.

 

Really? I thought cheques needed to be made out to HMCS? What have Revenue & Customs got to do with court proceedings against a landlord?

[pinkmilk]

help!! thanks x

[Joa]

In my opinion, technically yes, you have a case. But there is a big "but", in fact couple of "buts". First one: we do not know how the judges are going to react to already draconian penalties for not acting in accordance with requirements of TDS. Secondly, in my experience judges do not like to forget about rules of natural justice and in your circumstances it would be against such rules to punish the landlord. Thirdly, you have other remedies to get compensation for your health (mental and physical) problems. Next, we do not have any guidance (correct me if I am wrong, please) on what to do when tenancy has ended, deposit not disputed and fully returned. And finally; what is your evidence that the deposit wasn't protected?

Your tenancy has ended, your deposit repaid- so s.213 would not apply anyway.

So, you can try; it will only cost you the court fee, but I do not predict it will be a successful claim.

[pinkmilk]

thanks for replying - the letting agent admitted after I moved out that the deposit had not been protected, also, what part of 213 does not apply and why?

 

thanks again its appreciated.

[clavileno]

some unfortunate stuff, and some spurious stuff

 

Let me see if I have this straight. You want to take action against the letting agent of the first property? In that case, with respect, what has the story about the fleas got to do with this at all? Or are you just a bit frustrated and want to "have a go"?

 

The purpose of the schemes is to protect deposits and therefore tenants. If, whilst a tenant, you discover a lack of TDS then it seems fair to take action in order to protect your interests. But if you have got your deposit back promptly (which you have), you suffered no loss as a result of the agent's (in)action.

 

Whilst you might technically have a case, a reasonable judge should (in my opinion) not see this as a particularly good use of the court's time.

[pinkmilk]

i'm not fimiliar with this forum thing but what was the "quote" you posted at the top of your reply?

[aBitofaPickle]

Just an update. The defendants have until the 11th Feb to respond to respond to my claim, and it's going to court on 25th March.

[aBitofaPickle]

OK today received AoS from their solicitor saying they object to the proceedings continuing under part 8 of the CPR and intend to file a fully detailed statement within 14 days with their clients objections to the proceedings, they'd be grateful if I confirm I have no objections to that???

 

Edit, just found this

 

Procedure where defendant objects to use of the Part 8 procedure 8.8 (1) Where the defendant contends that the Part 8 procedure should not be used because –

(a) there is a substantial dispute of fact; and

(b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,

 

he must state his reasons when he files his acknowledgment of service.

(Rule 8.5 requires a defendant who wishes to rely on written evidence to file it when he files his acknowledgment of service)

(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.

(Rule 8.1(3) allows the court to make an order that the claim continue as if the claimant had not used the Part 8 procedure)

 

That looks to me as though they should have given their reasons with the AoS.