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

[waterbottle]

Esio, don't be so silly. It's not offensive at all.

 

My objection was not to your information. It was to how you presented it. Pages of debate and then when you hear something that might affect the case you start advising him to drop it. By all means highlight new info but but pretend you know what you don't know.

 

The subsequent special pleading must have been for your own sake.

 

Planner, it does seem to be the case that landlords and tenants are still referred to as such after the contract has ended, and Pickle becomes a relevant person if not a tenant. I think that, like with many aspects of litigation, the defence may want to try absolutely everything before conceeding defeat.

 

Esio, when is this case?

[RentedAndRankled]

Esio,

 

I think your off course here. As Planner points out the HA 2004 says;

 

"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—"

 

and s213(10) reads;

 

"“relevant person” means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant"

 

Therefore even though I may no longer be a tenant I am still the person who paid the deposit on behalf of the tenant, therefore I still qualify as a "relevant person".

 

In my situation I only found out about TDS's when I was looking for a method of resolving a dispute about some deposit deductions. I'm sure I'm not alone in my method of discovery of TDS's, and I'm willing to bet that it is in the spirit of the law that tenants and ex-tenants should have this protection.

[billy_79]

I've got my court date now - it's mid June. I wasn't expecting on coughing up another £150 for the hearing fee though. AFAIK mine in still part 1.

 

Waiting with baited breath to see how Pickle gets on.

[aBitofaPickle]

I am pleased the above has been brought up, and further that it has been clarified, as it is information like this that could come up in court and throw me.

[RentedAndRankled]

Bit of an update on my case. The landlord filed his defense which boils down to him claiming that I was not part of an assured short term tenancy for two reasons;

 

1) No agreement was signed and it was an informal arangement.

2) The tenancy wouldn't be covered because only tenancies over six months are covered.

 

As I understand things this won't hold up for two reasons;

 

1) I don't know the LL, we negociated terms via Email, and he said we should sign a tenancy agreement (yes, I have this email and will be sending it to the court).

 

2) Anything starting after 28th Feb 1997 is an assured short term tenancy unless otherwise stated. The fact that our tenancy was for a minimum of two months is not relevant.

 

Does anyone here know anything that could cause me problems?

[waterbottle]

I was under the impression that ANY deposit for a tenancy had to be compliant. We can all have a look at this.

[RentedAndRankled]

The state of things as I understand it is as follows;

 

The term Assured Shorthold Tenancies (ASTs) was defined in the Housing Act 1988, but in it's original form your LL had to give you a notice that the tenancy was an AST for it to be an AST.

 

The Housing Act of 1996 modified the 1988 act to say that when relevant section of the 1996 act came into force (which was on the 28th of Feb 1997) the default type of tenancy was an AST, but the tenancy contract could override this by saying your tenancy wasn't. There are also several exclusions whereby a tenancy can't be an AST.

 

In most cases where you're paying a market rate in rent to a private landlord for your home your most likely to be in an AST, but not ALL tenancies are covered because S212(2) says a TDS is a scheme which;

 

"(a)is made for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies and facilitating the resolution of disputes arising in connection with such deposits..."

 

and S212(8) makes it clear that it only covers ASTs by defining a shorthold tenancy;

 

"“shorthold tenancy” means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of the Housing Act 1988 (c. 50)"

 

If you want more information have a look at the guides from shelter and the CAB at;

Shelter: Assured shorthold tenancies

Private sector tenancies

[aBitofaPickle]

I am in receipt of IS, so don't think I have to pay the court. I may also be able to get my initial fee returned. That would be a result.

[RentedAndRankled]

Looks like the wins are starting to come in;

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme.html#post1474148

[Steve__M]

RentedAndRankled

 

I'm not convinced Mr Pipps' message relates to TDS as he'd previously said his deposit was protected:

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/131060-iminent-repossession-rented-property.html#post1381175

[Planner]

And if you look at the TDS sticky at the top of the page Joa has posted the case details of an actual win, Joa could you post them in the main forum (I dont want to take your glory!!!). Absolutley excellent victory and a good piece of detective work Joa.

 

Joa, I know youve done loads but any chance of finding out if the N1 or N208 route was followed?

[aBitofaPickle]

I'm very pleased to read about this. I've already asked on the thread, if it's possible to get a copy of the judgement.

[Joa]

Of course I will ask about N1/N208 and post as soon as pos. I am away from the office till 18th April so this will my earliest chance to enquire about this.

And the glory is not mine at all- it's guys from Gloucestershire Shelter advice centre.

[billy_79]

Looks like the wins are starting to come in;

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme.html#post1474148

 

This is excellent news, and is certainly very useful to me.

 

However, and I might well be wrong on this (I'm no expert!), my understanding is that judgements made in county court do not create case law or set a legal precedent, that can only happen in high court. It is still a very persuasive result though, especially as the LL has since protected the deposit, and even that didn't sway it in his favour.

 

I don't like the sound of the last para though - where it says the judge expressed concern, "goes against the grain" etc.

[aBitofaPickle]

This is excellent news, and is certainly very useful to me.

 

However, and I might well be wrong on this (I'm no expert!), my understanding is that judgements made in county court do not create case law or set a legal precedent, that can only happen in high court. It is still a very persuasive result though, especially as the LL has since protected the deposit, and even that didn't sway it in his favour.

 

I don't like the sound of the last para though - where it says the judge expressed concern, "goes against the grain" etc.

 

Of course you're right, it does not set case law.

[reggie42]

...And here's some setails of another recent win - good luck everyone fighting rogue landlords!!

TENANCY DEPOSIT CASE (S213 HA 2004)

Stankova v. Glassonbury 10th March 2008, Gloucester County Court

The claimant Ms Stankova is from Bulgaria and took a private tenancy with Mr Glassonbury on 1.8.07. She was a joint tenant with her daughter and another tenant (unknown to her before start of tenancy).

The tenants jointly paid a deposit of £600 in order to move in. The landlord did not notify any of the tenants that he had deposited the money in any of the statutory Schemes at any time.

There were various problems with the landlord and he served notice on 2.10.07. The notice was defective. The third tenant moved out of property shortly afterwards and the three tenants made arrangements about how the deposit would be dealt with on its return.

On 28.10.07 the landlord entered the property and removed a carpet and the fireplace from the lounge making it unusable and also pulled the extractor fan out of kitchen leaving a hole in roof. The Council dealt with the harassment. The landlord promptly served a further notice November 2007 under s21 which was on the face of it a valid notice.

Ms Stankova moved out in Feb 2008. She made a claim under the Housing Act 2004 against the landlord for his failure to notify her within 14 days of how he would deal with the deposit and which scheme he was using.

The landlord submitted various arguments against the claim; that the tenant owed some rent arrears, that he had now placed the deposit in a scheme and that there was damage at the property for which he would wish to withhold some or all of the deposit.

At the hearing of the matter District Judge Singleton ordered the landlord to pay £1800 +£75 costs in respect of three times the deposit plus the court fee.

In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or other arguments about the return or retention of the deposit on the basis that a statutory scheme included arbitration for disputed about returning or retaining deposit monies.

Comment: In giving his decision the judge expressed concern that ‘it goes against the grain’ and advised the landlord to take legal advice as to whether he could delay the 14 days in which he must pay the claimant.

[RentedAndRankled]

I've just pointed out in another thread (http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/138758-tenancy-deposit-case-section.html#post1475818) that HM Court Service has no listing for a "Gloucester County Court".

 

Can you verify with your source the name of the court that the judgement was issued in.

[Joa]

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme.html#post1476085

[aBitofaPickle]

I'm preparing my bundle to send Special Delivery to the agent and the court today.

Included is

Part 6 Chapter 4 of the housing act

Copy of Tenancy Agreement

Copy of Letters received from TDS (still not had a reply from the last one)

Is there anything else I should send.

 

I looked at the information from the student union, the bit about interest was interesting.

 

You also need to calculate the amount owed up to the date you issue your claim in the court.

Do this by multiplying the days from the date the deposit should have been paid into the scheme (or the date

the prescribed information should have been given

) up to the date you pay the court fee and "issue" the claim in court.

My Highlight.

 

I calculated interest from the date I should have received my deposit back. Is there a way of altering this, as one is a lot more than the other.

 

 

"

 

[RentedAndRankled]

Personally I've not gone down the route mentioned by the Students Union in my case.

 

The reason being that the HA2004 only states that you should get your deposit back plus the three times penalty, it makes no mention of claiming interest.

 

The thing I'm bearing in mind is that the 3x penalty will more than cover the interest you would have seen on the money, so it's better to be fair than going for every possible penny.

[aBitofaPickle]

I disagree. Having been to court for other matters, it is expected that interest will be claimed on any money owed.

[Planner]

Think you should be aware of this second case, which relates to yours very well. Its unfortunate but the judge specifically said she is unsure if her ruling is correct. Obviously dont include this in your court bundle but be aware of it.

 

An unfortunate outcome posted on the landlord zone forums, and one imho, that should be challanged;

 

Well I can put this case to bed now, the hearing was this afternoon and this is what happened and what can be inferred from the judges comments.

 

The summarise - my situation was that I paid a deposit in April 06, for a 12 month AST. Then signed a new 12 month AST in April 07 for 12 months. The deposit was continued to be held against the new tenancy. The LL didn't protect it, but subsequently did on receipt of the court papers with mydeposits.co.uk (an insurance based scheme). I used N208 based on Planner's wording.

 

The judge made the following comments:

 

1. As it was a part 8 claim, a letter before action would not have made any difference as it's an absolute matter and no room for negotiation (in response to defendant's complaint about no LBA).

 

2. The fact that the LL had subsequently protected the deposit made no difference to the case. It would still lead to judgement for either return or protection + x3 penalty.

 

3. It was an absolute matter, with no case for morals or discretion on a penalty, it was all or nothing.

 

 

HOWEVER!

 

I lost the case

 

The Housing Act 2004 says that a deposit falls under the new legislation if it is paid and received after April 6th 2007. The judge said that she had to consider whether the fact that the deposit was already in the defendant's possession and that it was agreed it would be a new deposit for the new 12 month AST, it was not in the traditional sense paid by me and received by the LL. She ruled that the deposit was paid by me and received by the LL in April 2006, hence the deposit had to requirement for protection. She said that that was her personal interpretation of paid and received and that the HA 2004 was not detailed as to the definition of both. She said that she may be wrong but without the guidance of a higher court ruling and with regret that that was her stance.

 

So that is that - a big surprise to me. I didn't really ever question this point as from the online research and relevant leaflets etc from various sources that the vast concensus was that it didn't apply to renewals or periodics but it would apply for new ASTs where a deposit was continued to be held.

 

I put forward about as many arguments as I could but was getting nowhere. I feel that appealing at this point would not get me any further. So I live with the knowledge that issuing the court papers when I did and then getting my Section 21 shortly after, forced me to find and move into a beautiful new flat which would now be on the market for £200 more per month so I've made back my court fee already... my way of justifying the loss.

 

This should be of great help to those who signed and paid after April 2007, whose LL protected the deposit outside of the 14 days. On this point the judge agreed that the ruling would be absolutely clear and it was purely the 'paid and received' point on which I failed.

 

Make of that what you will and thank you all for your assistance with making my case. It was an interesting process and I learnt a lot, as a tenant and as a landlord!

[aBitofaPickle]

Oh bugger, what a shame. This was something i considered early on, as I read on one of the sites that would be the case.

I still think it is worth fighting my case, especially as I am able to get a fee remission.

I will have to read well and see if there is anything I can use against this point.

[RentedAndRankled]

I disagree. Having been to court for other matters, it is expected that interest will be claimed on any money owed.

 

Pickle, if it were a debt then I would agree, but what we are talking about here is a statutory penalty which is clearly defined by the act thus;

 

"...order the person who appears to the court to be holding the deposit to repay it to the applicant..."

 

and

 

"...order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit..."

 

So in my view I see it as an application for a fixed fee as opposed to an application for monies owed.

[aBitofaPickle]

RAR, I see what you mean.

 

Planner. 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. Also some printouts from the various schemes saying the same things and from ARLA. I hope this will help if it should come to that.

 

I will include all of these in my bundle so that I can use them in court.

 

The documents have to be received by tomorrow, I am sending by Special delivery today, but I haven't received anything from the defendant yet!!