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

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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.

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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!

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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.

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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

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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.

 

It will be interesting to see what their argument is! either they have complied with TDS or they havent, whats the substantial dispute of fact I wonder? (assuming they are relying on that part of it!). I wouldnt be to worried, the jusge will allow the claim to be dealt with under the more usual N1 route. Before I responded stating if I had any objections I would clarify the reasons why they think it shouldnt be dealt with under part 8. If they say there is a "substantial dispute of fact", then I would object because there isnt.

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the "spurious stuff" was the suggestion that it was reasonable to issue proceedings and use up court time against a landlord or agent who had actually returned your deposit.

 

I know, imagine someone breaking the law and then expecting the court to deal with it! how ridiculous!

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[Edited to add: it isn't "breaking" the law at all, since this is not a criminal matter. The relevant law is broadly a non-negotiable civil contract - if the landlord doesn't do something and if the tenant applies to the County Court then the Court must award some damages.]

 

As has been said already, it is unknown how courts are going to react to this regime.

 

In general, there seems to be a bit of a problem at the moment where a deposit has been safely returned yet wasn't put into a scheme. Where is the loss suffered by the tenant in this circumstance?

 

Rather more importantly, where is the legislation to govern that? I've just gone and read the relevant sections of the Housing Act 2004. It is, I'm afraid, not clear that they apply where there is no longer a deposit (i.e. it has been returned). The relevant part is Chapter 4, and specifically section 214. The section deals with what happens when there is a deposit being held by the landlord, but not when there is no deposit currently being held.

 

Since Pinkmilk's deposit has been returned, my view is that it is unclear whether s.214 applies and whether the penalty of "triple damages" can be applied-for. To get this clarified would take a trip to the higher courts, which I'm sure neither Pinkmilk nor his/her former landord would be prepared to pay for. Without case law to suggest that s.214 applies in this circumstance, I would have to say I think it doesn't and that, therefore, Pinkmilk going to the County Court over this is ill-advised and possibly a complete waste of everybody's time.

 

I would have to disagree. There are criminal laws and civil laws. Civil laws can be broken just as criminal ones can, you can argue semantics all you like. Have a look at the parliament web page, it may go some way to correct your poor grasp of the concept "Law" UK Parliament - Acts

 

I would have to disagree that because the deposit has been returned the o/p shouldnt claim. I suggest you have another read of the act. The sanctions for non-complaince are just that sanctions for non-complaince, not sanctions for not returning the deposit. The actual non-complaince occurs 14 days after the tenant has ended over the deposit, this as either been complied with or it hasnt, the tenant would then have 6 years to bring forward a claim for non-complaince. Simple as, I cant see any need for this to be tested in a higher court when its black and white in the act.

 

As you say the courts are yet to decide... strange you then go on to say its ill-advised and a waste of everyone time, how do you know if the courts are yet to decide?!

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OK, I am not a landlord, I am a tenant. I still think the penalties are draconian. I think the principle of a private individual claiming for a loss that has not happened is wrong. If the Government had wanted a properly robust system, they would have set up a watchdog/regulator/agency to whom complaints could be made and who could take action against landlords. At the moment it is DIY regulation on the cheap.

 

It is for those reasons that I think it is a waste of everybody's time.

 

As to the wording of the law, here we go:

 

(3) The court must, as it thinks fit, either—

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

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(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.

 

It is clear (to me, at least) from the tenses and language used that the drafters of this legislation imagined that proceedings would be happening whilst there was a deposit being held. Since that isn't the case here, it is not clear to me that the issue is clear-cut.

 

Edited to add: (3) cannot be complied with, even though the act says it "must" happen; in the absence of (3) and following the language, (4) cannot apply because it is an "also" to something that cannot happen.

 

The very fact that we disagree about that indicates that it is not clear-cut. There is no excuse for that in modern legislation - it should be crystal clear, and I believe it is not.

 

Again I would have to disagree. What will happen is that the court will do 3(a) order the person who appears to the court to be holding the deposit and then

(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.

 

It is immaterial that the landlord as already repaid the initial deposit, as the court order will not distinguish between the defendant paying the claimant £x for deposit and £x for non-complaince it will simply be one amount, from which the amount already repaid will be offset.

 

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.

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This is all a bit of a mess.

 

Is the Depsoit held in a TDS or not? - Im affraid im still not sure, are you?

 

What TDS have you been told the deposit is held in? Have you rang them to confirm they do hold your deposit? Have you asked them to confirm when the deposit was placed in the scheme? How does this relate to the 14 day rule?

 

If it is held in a scheme then why have the agents/ll not dealt with your complaint concerning deductions through the procedures set up in the scheme?

 

Key question is it in a scheme or not and when was it placed in said scheme? then we will know how to proceede.

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Then why not give the solicitors a ring and ask which of the three schemes was your deposit held in? And then contact that scheme and see if it was with them and when it was registered.

 

Let us know the outcome. We can then have a look at the scheme procedures for dealing with disputes. I think all the schemes require the tenant to agree with deductions before a depsoit can be released.

 

Im dubious that it is actually held with a scheme, but we need to be sure in light of this "new evidence"!!!

 

It still doesnt mitigate the fact that you have recieved none of the prescribed information!

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I still think you need to ring the solicitors and see what scheme they are saying the depsoit is registered in. If they say "TDS", then you can get back onto TDS and ask for Written Confirmation that the depsoit hasnt been registered with them.

 

You should then contact the solicitors and ask them to fax/post you details of which scheme the deposit is held in and the account number (or what ever its called) that relates to your deposit at that address).

 

Then you can write to the both the solicitors and the court confirming that there are not any significant disputes of fact as you have written confirmation from the schemes administratoirs that the deposit hasnt been held in the scheme and therefore you would like the part 8 claim to proceede as theres nothing to argue!

 

Im dubious to the usefulness of their dispute form if the deposit as not been registered with them.

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Just re-read by what they are saying concerning decorative state of bedroom etc. DO NOT be side tracked by this. The issue here and ONLY issue is compliance/non-comliance with TDS regs, everything else is totally irrelevant.

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OK, the reason it came into dispute was that they refused to return it all wanting some for decoration of a room.

 

This is what I was honing in on, even if I had received the letter, (which I now have a copy of) I would have proceeded as there is nothing in there about which scheme I'm with or how to use it.

 

The statement goes on to say had I received the letter the claim would not have been made as the information regarding the tenancy deposit scheme would have been with the claimant and appropriate steps would then have been taken by both sides to resolve the issues.

 

How can there be such a letter you dindnt recieve if you have established there isnt any TDS for the deposit? I dont understand how it can be both ways?

 

- Either its in a TDS and you never recieved the letter informing you about it (which I assume is what the solicitors are saying)

 

- Or its not in a TDS (which your saying you have now verified) so the letter would be irrelevant wether you had recieved it or not.

 

Both these positions cant be right. I need you to establish which is the correct position before we can continue. The basic details you need are;

 

1) Name of TDS that the deposit was registered under (assuming there is one)

2) On what date did you give the agents the deposit

3) Assuming it was registered, on what date was it registered

4) Assuming it was registered on what date did the agents send you this non-recieved letter

5) Did this none recieved letter contain the prescribed information or not?

6) Why did the scheme, assuming that the deposit was registerd with one, release the deposit without your permission?

7) If it has been registerd then you need details of the account number etc now.

 

If the solicitor is getting back to you this is what you need to ask him. Again DO NOT be side tracked disgssing decorateive order etc. If he starts down this route be firm and say that you arent disgussing that this claim is about non-compliance with TDS.

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abitofapickle Im happy to continue helping if you want me to but this threads been knocking on for nearly 2 months now and we still dont seem to be able to answer the fundemental question with any certainty or documented evidence - Was the deposit placed in a TDS scheme or not? Igonore the prescribed infomration and 14 day stuff at the moment and answer that one - Was the deposit placed in a TDS scheme or not?

 

- Ask the agents if they will talk to you (now a solicitor is dealing with it) for:

 

- Scheme name

- account number/identifyier number (what ever the number is called there must be one) that relates to your deposit at that address

 

- Then ring that scheme up and ask them ;

- on what date was it registered

- Why did the scheme, assuming that the deposit was registerd with one, release the deposit without your permission?

 

Let us know.

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I dont know how long you have to respond, does it not say? google it and have a look on the court website. Looks like we are getting there somewhat slowly!!!!

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Well,

 

Just get the written notification from the three TDS schemes that the deposit wasnt held with them, suppose thats all you can do at the moment. If they have a further 28 days to provide their defence looks like its now being dealt with via the N1 route?

 

Remember the key is not to get sucked into debates on "this wasnt clean, or there was a mark on the paint work". You have taken THEM to court for lack of compliance with TDS thats the key.

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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.

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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.

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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.

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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.

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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?

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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?

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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.

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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.

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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.