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

[aBitofaPickle]

The defendant asked for 3 weeks to prepare, so sometime after the 1st May. At least that means I should have a response for The Dispute Service.

[Planner]

It seems that the judge is treating this as a regular deductions dispute type of scenario, which it most definatley isnt. Again all I can say is that you most repetadly stress that;

 

1) this is about TDS compliance not deductions from deposit.

2) there is NO defence for not protecting the deposit.

[billy_79]

I'm watching this with interest as I'm in a very similar position. I had to file my allocation questionnaire and defence to their counter claim a few days ago (in my case the landlord has fabricated a counterclaim for damage to the property, of almost the same size as 3x the deposit, even though they previosuly made their false deductions and refunded part of our deposit ).

 

Best of luck with it pickle.

[Planner]

I think unfortunatley Pickle your the forerunner. The judge simpily cant grasp what the claims about apparently. Theres no case law to back you up and no best practice etc.

 

Keep us updated and post any further questions here.

[aBitofaPickle]

I thought it was pretty straightforward. Could it go against me in court?

[Planner]

Well in my eyes it is straight forward. The proceedings are set out in the act in black and white in the act. If the deposit has not been protect then you apply to court for its protection or return and as punishment the LL/Agent has to pay X3 compensation.

You have done what the act told you to. Unfortunately it could go against you, as anything. If it does then there has been some procedural irregularities or missed points of law which you should ask the judge for permission to appeal (get this sorted in the back of your mind because if you do ask for permission to appeal you will be asked for reasons). I don’t know the costs associated with an appeal. Unfortunately you have reached a point of no return. I would brush up on your knowledge of the act and specifically ask the judge for reasons as to why your case has gone from a simple yes/no answer on TDS compliance to a general discussion on deposit deductions etc. I don’t know how assertive etc you are but you need to be very very specific on this point. I’m afraid I don’t see how one can submit a claim for one thing, which is then completely ignored, and be drawn into a case where something different is discussed.

[billy_79]

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.

 

I'm just trying to get my head around what happened to you today - was this an actual hearing or some kind of 'pre trial review'? I wasn't even aware that there is a PTR for small claims track.

 

Why does the defendant need 3 weeks to prepare? Surely they should have got themselves ready for today?

 

I guess you should have said something along the lines of that you are expecting all of your outstanding deposit back, the extra 3x 'penalty' is just what the housig acts states the court must award.

[waterbottle]

Well done Pickle. The only defense against the '3x deposit award' that I have heard seems to be based on 'natural justice'. I am now vaguely familiar with this concept but it would help if we could get someone with a solid understanding to set out how this argument would work.

 

Also, where do you live Pickle? There is a buddy system on this website. In view of this being a 'test case', perhaps someone with a bit of experience could go along with you; maybe even speak for you if you're worried.

 

Good luck

[Steve__M]

As a very curious spectator and landlord may I paraphrase what this appears to be, because in reading the thread, not everything is clear.

 

You have applied under Part 8, which is supposed to be for straightforward cases. The defendant has objected to the use of Part 8, and this hearing appears to have been about that.

 

Either your claim or their defence is sufficiently complicated or obfuscated such that the judge may have just had a quick look, made a wrong assumption, and decided that Part 8 is inappropriate???

 

Part 7 is the "normal" procedure where things are less straightforward, and you appear to have lost a tactical battle with the judge.

 

Is this about right or wrong?

 

In 1.5 hours you should be able to straighten this out!

 

Maybe you need to start from scratch, explaining to the judge what the schemes are about in as few points as possible, and suck up to him like mad.

 

1. These are new schemes set up by government statute.

2. They are designed to resolve deposit disputes and save the court's time (suck up)

3. The landlord/agent have failed to use the schemes (it is not you who have failed to negotiate) and this is the only reason you are in court (more sucking up)

4. This case is absolutely not a deposit dispute and evidence of dilapidations is not relevant.

5. Remedies for failure to use the schemes are crystal clear in the Housing Act etc...

 

You said you'd written to the agents asking for the scheme name, and didn't get a satisfactory reply, so point this out also.

 

Sorry, you probably know all this - just my 2p worth.

 

If you do get an offer and are thinking about accepting it for a quiet life, don't let them think you're on the back foot and see if you can get them to increase it.

[aBitofaPickle]

I did question the judge saying that I thought I was being misrepresented as difficult as I did not want to discuss with the defendant at this time. He said that his understanding that I wanted to 'fight' this case on principle.

 

I think I should have said more, but I wasn't really sure what we were in court for.

 

I thought it was going to be sorted then and there, but I was only asked if i wanted to discuss a settlement with the defendant.

 

When I said no, the judge said that he was going to transfer to part 7, small claims and asked when the defendant could be ready.

 

I'm not sure how I could have gotten it progressed another way, but I am disappointed.

 

I would definitely go to appeal if I lost as believe this should have been an open and shut case.

 

I am in the North East, and this will be heard in Sunderland.

[Steve__M]

I did question the judge saying that I thought I was being misrepresented as difficult as I did not want to discuss with the defendant at this time. He said that his understanding that I wanted to 'fight' this case on principle.

 

Words fail me

[clavileno]

Words fail me

 

Unfortunately the legal system is a battleground, and the aim of the game is to get the judge to agree with your particular point of view. In this case, and I'm sorry if I have this wrong, pickle;

 

- was not clear on the purpose of the hearing

- was unable to get the desired outcome

- may have been represented in the record as being unhelpful

 

Unfortunately that simply means the other side played the game better, whether in court or with their pre-court preparations and/or documents. Such is life, and is but one of the reasons why I believe the legislation as written is not as clear-cut in terms of likely outcomes as others have suggested it might be.

 

Anyhow, the important thing now is the actual hearing of the case. Pickle, I feel you need to make absolutely sure that you are prepared for this. From what you have said, it sounds as though you need help from people who actually understand the system (or the "game" if you like).

 

You may want to consider talking to a solicitor. You definitely need to read as much as you can and make sure you have it clear in your mind what is likely to happen next and how to handle the court.

 

These forums may be helpful in that, but they are a bit prone to people making pronouncements of "fact" rather than giving you practical, actionable advice.

 

If you want some advice here, you might want to consider posting up everything you have written so far on your claim form, and so on, and perhaps also everything you have received as a defence from the other side, so that any advice can be based on what has actually gone as far as the court.

[aBitofaPickle]

I have received the letter from court with a date of 7th May, it has been changed to Part 7.

I have to make another payment before the court date or it wont go ahead. I don;t want to be more out of pocket with this. I am disturbed that they can just keep all of my deposit and the courts can think that is OK.

I will type up the contents of the letter from court and post later, but it does record that I am unwilling to mediate or discuss with the defendant.

[aBitofaPickle]

OK, the letter

 

District Judge …. has considered the statements of case and allocation questionnaires filed and allocated the claim to the small claims track.

 

The claim be transferred to Part 7.

 

It is recorded the claimant is not prepared to mediate or discuss settlement of the claim with the defendant and that this may be taken into account if any application for costs is made.

 

The hearing of the claim to take place on 7/5…. A hearing fee of £300 is payable by 17th April. by the claimant unless you make an application for a fee concession.

 

1. The parties must file at the court and serve on the other party not later than 14 days before the hearing the following:

 

a) Copies of documents upon which they wish to rely

b) Statements of witnesses, including the parties, upon whose evidence you wish to rely.

The statements shall be typed, dated, signed…etc

 

2 All original documents must be brought to the hearing

 

3. Parties should note that if they do not file and serve documents and statements as set out above then the court may decide not to admit the evidence of the party in default.

 

It goes on to say that the hearing fee will be returned if it is settled 7 days before the court date.

 

 

I have still not had written confirmation from one of the TDS, the one this particular agent deals with… I’m not sure how to force them to give me that. I have told them that it is subject to court proceedings. I would like that as part of my defence, although that particular judge did not seem to hold much stock of the way the law is written.

 

The defendant did say they were going to offer me a settlement, and that I would hear within 24 hours of the last court date, but I’ve hear nothing further from them.

[RentedAndRankled]

Pickle;

 

I'm heading down the same route as you, but I started in the small claims court and I'm a little behind where you've got to, but I'd like to offer some advice (I'm NOT a qulaified solicitor, so you may want to double check this).

 

1) Do NOT, under any circumstances, get drawn into a discussion about the state of the property. If questioned by the defendants solicitor about anything other than the TDS and the sections of the housing act say that you would happily discuss other issues the defandant may have at a later date, but this case is solely about his failure to meet a statutory obligation. The only person who can get you off of this message is the judge, all the defendants solictor is trying to do is make you look bad either by confusing you or tarnishing your reputation. The judge will let you know if he wants you to answer a question further, but don't get drawn into a discussion that's irrelevant to the point of law you're relying on unless the Judge says so.

 

2) In terms of your documents, my personal opinion is that all you should send would be;

 

- A copy of the relevant sections of the housing act.

- A copy of your tennancy agreement (or any conditions you have in an email/letter), to show that it was an assured short term tennancy.

- The letters you have from the TDSes you've talked to

- Any form of correspondance with the TDS that has not responded, including any letter you've written to them asking for confirmation of 'phone conversations (e.g. Dear sir, I would like you to confirm in writing that you did not hold my deposit in an approved TDS during the period XXXXX to YYYY).

- Any correspondance you have had with the landlord in relation to the TDS.

- Any details of the previous offer to propose a settlement.

 

3) If the matter of mediation or settlement comes up, point out that following the previous hearing you have agreed to consider a settlement offer which the defendant said would be provided within 24 hours of the previous hearing and to date you are still awaiting their settlement offer.

 

4) The Judge may have not liked the way the law is written, but he is obliged to uphold it. Many judges have personal opinions about certain sections of law and that they should be improved, but that is their personal opinion and should not be allowed to affect the courts upholding of the laws of the country.

 

Good luck, and remember, stay on message and don't drift unless the Judge compels you to do so.

[aBitofaPickle]

Thanks RAFO, I have had some great advice on here from many people, particularly Planner who suggested the same as you, not to get drawn into the state of repair discussion.

I appreciate your suggestions on what to send in. I will write to the TDS again and see if I can get them to send me something, but after previous court shenanigans (speeding), I think I am pretty well prepared re. copies and receipts for everything.

Let me know how you get on.

[waterbottle]

I am in a slightly more complicated situation but TDS non compliance is still an issue for me.

 

Today my solicitor gave me a photocopy of an article that is the strongest indication that the penalties for non compliance are meant to be severe. This is good news for all of us who are claiming against unscrupulous landlords.

 

I will type a bit out:

 

NON COMPLIANCE

The penalties for non compliance are severe:

 

(The article then precis what we already know before offering a definitive opinion on the matter that remained ambiguous; the 3x deposit penalty)

 

It says:

 

If the court is satisfied of such non compliance, it must either order the repayment of the deposit to the tenant, or order that it be paid into the designated account of the custodial scheme within 14 days of the making of the order. The court must also order the landlord to pay the tenant, within 14 days, a sum of money equal to three times the deposit amount. This order must be made even if the landlord protected the deposit and provided the information at some time after the 14 day period allowed from the date the deposit was received.

 

I feel this supports the thinking that the legislation is designed to punish bad landlords. I also think it suggests that you should get your full deposit back Pickle, even if you left the place with disrepair. They simply cannot take deductions when they haven't protected the deposit.

 

The article was in Legal Action Law and Practice/housing 2007.

 

I hope this raises your hopes Pickle.

[aBitofaPickle]

Do you think I should try to get a copy of that for my bundle, or does that put the courts back up?

[waterbottle]

I have no idea about court proceedure. I am slowly but surely learnign about law from this site and my own reading. It seems that the main problem facing your claim is the solicitors twisting of the case into something else.

 

You may need a law library or the CAB or a welfare rights bureau to get hold of the article. I have a photocopy but no scanner. If you can't get it I will try to get a copy to you if you like.

 

Could you set out exactly what went wrong with the case in a letter? Perhaps you could send this to the court manager, the judge, the defendant etc. You would then, at the very least, have an account of the problem and you could ask to judge to read it on the day if he won't look at it before.

 

My solicitor is speaking to counsel over the weekend and I will post anything relevant to TDS here.

[waterbottle]

Forgot to ask. Which TDS scheme are you having a problem with? They all have email addresses but 1 of them is harder to find than others.

 

You may want to get confirmation from the last scheme. What exactly are they doing/saying?

[Esio Trot]

I hate to do this, but I think your case is lost and your main focus should be how to withdraw with as little cost to yourself as possible (maybe even settle out of court - the other side not knowing how weak your case is).

 

The reason for this is the Housing Act s214 (1):

Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant ... may make an application to a county court on the grounds ...

The tenancy has ended. You are no longer a tenant. Thus your position is not one where the Act gives you leave to make an application.

 

I make this assertion on the same basis as requests for the name and address of the landlord under the Landlord and Tenant Act, where a reply must be made by the agent within 21 days under sanction of criminal proceedings. One the applicant is no longer a tenant, the right to the name and address of the landlord is lost - as (from what others have told me) has been confirmed by case law.

[waterbottle]

Christ Esio, that's a bit premature isn't it?

 

Pickle still hasn't had his/her deposit returned. The legislation clearly anticipates this kind of situation.

 

Your quoted case law seems to be a situation where a special right - access to a LL's address with criminal sanction - is removed once the tenant has moved out. This is a situation where the legislation - financial sanction for non compliance with TDS - clearly anticipated that a tenant would check deposit matters after leaving the property.

 

This would mean that there is no landlord if they haven't re-let. But they are still called landlords in cases which take place afterwards.

 

If the act provided for a window of opportunity which finished after the tenant moved out it would say. If you sign a contract it leaves a place for tenant and landlord. Not prospective landlord and tenant.

 

Maybe others will disagree but I think you have tried to be too clever here and it hasn't really helped.

[Esio Trot]

I am disappointed that you start your reply with a profanity. It is unnecessary and offensive.

 

The reason for the post suggesting an out-of-court settlement is that I am aware of a landlord who is being taken to court by an ex-tenant and, having taken advice from a QC, has made an application that "there is no case to answer" as the applicant is no longer a tenant.

 

This forum is not one where we all suck up to a "lets bash landlords" campaign, but one where there should be robust discussion and differing opinions considered.

 

I may be not be correct, but if I have information that may affect the OP's case but to fail to bring this information to their attention, I would be in the wrong.

 

This is an area of law that has introduced a principle of a punitive sanction that is, AFAIK, untested. The OP also has to part with another £300 to continue the action. If there is any material doubt on the success of the action, it should be at least considered.

[Planner]

I hate to do this, but I think your case is lost and your main focus should be how to withdraw with as little cost to yourself as possible (maybe even settle out of court - the other side not knowing how weak your case is).

 

The reason for this is the Housing Act s214 (1): The tenancy has ended. You are no longer a tenant. Thus your position is not one where the Act gives you leave to make an application.

 

I make this assertion on the same basis as requests for the name and address of the landlord under the Landlord and Tenant Act, where a reply must be made by the agent within 21 days under sanction of criminal proceedings. One the applicant is no longer a tenant, the right to the name and address of the landlord is lost - as (from what others have told me) has been confirmed by case law.

 

What section 214 (1) of the act actually says is;

 

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—

 

I think its quite an odd assertion that the tenant stops becomeing the "tenant" after they have left the property if there are still unresolved issues. For example, I have an AST in front of me here which says;

 

The deposit will be refunded to he tenant, less any deductions, within 14 days once the following have been completed"

 

I would stake a couple of £100 that many many AST have wording very similar to this about deposit return, but according to your reasoning this "tenant" could never expect to recieve their deposit back within 14 days of the AST end as they wouldnt be the tenant. Equally theres a clause in there which say;

 

Where the landlord has more than one reason to claim against the deposit, the landlord acting reasonably, may choose the allocation of the deposit against those claims

 

Again I bet good money on many many ASTs having this kind of wording. The snag by your reasoning is that they actually couldnt take a penny of the "tenants" deposit because they would no longer be the landlord would they? so theres now a sum of money with no rightful owners because at the end of the AST there is neither a tenant or a landlord to claim it!

 

Second I think its quite odd that if I paid my own deposit then I couldnt take the LL to court after the end of the AST but if my friend "Mr Ben Dover" had paid the deposit for me then he has a "relevant person" could? - is that your reasoning?

 

I believe "Tenant" is just a useful term to descirbe the person who is/was the AST "Tenant" and equally landlord a useful term to describe the granter of said AST. Without such terms how could you ever right meaningful legislation.

 

I take on board whats been said about only being able to request a LL address during a tenancy, possibly this assertion is alo wrong? I dont know.

[Planner]

And a further thought... could one person not be both the tenant and a relevant person?

 

For example I Planner am going to rent a property. I pay my deposit and then during the tenancy I find out that theres been non-compliance with TDS. I would therefore make a claim as the "tenant" for complaince. I would still be the "tenant" as I would still be living at, paying rent for and holding an AST for said property.

 

At the end of my tenancy, if I noticed non-complaince, would I then not be treated as a "relevant person"? planner, who paid the deposit on behalf of the tenant who incidently happended to be me (Planner)? what would preclude this?