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

[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?

[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?

[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!

[Planner]

Have you rang?

 

what have the offered?

[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

[Planner]

Good Stuff!!!!!!!

 

Dont drop anything until that money is in your bank!

[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.

[Planner]

Oh well at least there should be some more sucessful cases for you to present come July. The court system seems to be making such a meal of this!!