Deposit Protection Query

[bobzac]

Hi, morning everyone.

Here comes another thread about the Tennancy Deposit Scheme, sorry, I know there are a few floating around here but I need some advice on how to actually move forward with it.

 

Basically, I have not recieved notification of my monies being placed into a Tennancy Deposit Scheme within 14 days of the start of my tennancy. Now from different posts that I have read, it seems to be a bit wooley as to what I do next.

 

(1) I am aware that I need to obtain a court order to tell the Estate Agent (holding deposit) to either return the deposit to me or pay it into a scheme.

 

(2) The estate agents then need to pay me the total of 3 x the deposit within 14 days of the court order.

 

Can anyone point me in the direction of how to obtain the court order, what information I need etc.

 

Finally, what is my position with regards to the security of my tennancy from there on ?

I am aware that a 2 month notice cannot just be given upon successfully obtaining a court order, however, what happens when the current agreement comes to an end ?

 

The 'official websites' for the TDS doesn't have much advice on how to proceed through the courts, neither does the direct gov sites (or I just haven't looked too hard)

 

Thanks in advance

[MrShed]

Quick answer(at work!):

 

Read this thread: http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/126261-tds-court-claims-wording.html

 

File a claim at county court.

 

You can be evicted with 2 months notice at the end of the current fixed term tenancy without any reason required.

 

Does that help?

[bobzac]

Yes that does help with regards to the forms etc.

 

The likelyhood is that if I take this forward to claim for compensation etc, I will get the boot at the end of the tennancy, is that correct ?

 

Do I go straight to the courts with this one or do I need to contact the estate agents first ?

[MrShed]

- Yes I think it is safe to say that being evicted at the end of the tenancy is quite likely should you pursue the matter.

 

- I would say to send an LBA to the agents, just in case. However, the chances of them giving you the compensation without court is highly unlikely, so it is more of a formality in this situation rather than a genuine attempt to get them to settle out of court so to speak. That said, if you are happy where you are living, an offer of 1.5x the deposit from them may be amenable, as it is less likely to result in eviction.

[bobzac]

well, that is a bit of a bummer isn't it. they don't follow the law, they get punished, we get persecuted for it. I think there should be some form of protection for that but hey.

Im sure if they think hard enough, bearing in mind that they don't need a reason, they can do what they like.

 

On the plus side, there may be a nice little sum sat in the bank for a deposit on somewhere to buy at the end of it all.

 

Well, I shall see what happens and keep you all posted

[Esio Trot]

well, that is a bit of a bummer isn't it. they don't follow the law, they get punished, we get persecuted for it.

 

On the plus side, there may be a nice little sum sat in the bank for a deposit on somewhere to buy at the end of it all.

 

The legislation regarding deposits is a sledgehammer to crack a nut. As a landlord I think it sucks.

 

Tenants have so many rights, and increasingly so under this government, that even a genuine conscientious landlord can find themselves at a loss of thousands through the not insignificant section of renters who think that the state and/or landlords have a duty to provide every facility and put right constant misuse.

 

The Section 21 procedure is the one thing that keeps many landlords still willing to rent. If you sue the landlord while in occupation, there cannot be an ongoing relationship. I regard myself as a responsible landlord, but am human and sometimes make mistakes (and if so, I invariably try to put them right). If I ever found myself at the end of a lawsuit, or subject to a Local Authority Improvement Notice (maybe because the tenant has got the hump over some minor issue, and asked them to to an HHSRS inspection), my first course would be to issue a s21 notice and seek to end our relationship at soon as the law allows.

 

The deposit protection scheme is modelled on that in Australasia. However, if at tenant doesn't pay rent they are evicted within 4 to 6 weeks. Not 4 to 6 months as in this country. If we had a similar fast track eviction procedure, I'm sure many tenants would treat paying the rent as more important than booze/fags/women/Ganja.

[MrShed]

Agree with Esio - although I agree that it is a difficult situation, we cannot really give tenants more security of tenure. If we did, you would see a significant market change - primarily a significant drop in supply of rental properties, and a significant increase in market rent. Basically, the bottom would drop out of the private rental market - much as it did during the old Rent Act tenancy days. Not so much of a problem then due to the availability of social housing, but would be a major issue now due to the constraint of supply of social housing.

[bobzac]

Esio - this isn't a personal crusade against the LL. I have never met them, this is me following my rights as a tenant under a scheme setup by the Government.

The rules are fairly clear with regards to what happens and as the Estate Agents in hand pride themselves in being members of the DPS, they shouldn't really have an excuse why they have failed to comply.

 

The place I was previously in, I cleaned top to bottom, I got the carpets done, I even gave the place a lick of paint. The LL said it was fine and it now backtracking, claiming I have not done anything.

I know his lying, as does the other person who was sharing with me, as do my parents as do the estate agents oh and the carpet cleaning company.

 

You say this is unfair towards LL's, it is doing exactly what it says in the tin - safeguarding the tenant against unreasonable LL's

[Planner]

Esio - this isn't a personal crusade against the LL. I have never met them, this is me following my rights as a tenant under a scheme setup by the Government.

The rules are fairly clear with regards to what happens and as the Estate Agents in hand pride themselves in being members of the DPS, they shouldn't really have an excuse why they have failed to comply.

 

The place I was previously in, I cleaned top to bottom, I got the carpets done, I even gave the place a lick of paint. The LL said it was fine and it now backtracking, claiming I have not done anything.

I know his lying, as does the other person who was sharing with me, as do my parents as do the estate agents oh and the carpet cleaning company.

 

You say this is unfair towards LL's, it is doing exactly what it says in the tin - safeguarding the tenant against unreasonable LL's

 

I quite agree with you bobzac. The laws the law, we cant pick and choose. Not picking a fight Esio Trot, but I found your post a little hipocritical (sp?) tutting about a law that has been put in place to protect tenants, and in the same posting stating how you would be the first to use the law to your own advantage (s21) should the tenant getting on your wrong side.

[MrShed]

I disagree somewhat Planner, and agree with Esio.

 

You cant pick and choose the law, but we can certainly discuss it. I think that the current TDS rules are somewhat draconian in the punishment stakes in that it overly punishes the landlord and (conversely) overly compensates the tenant.

 

Let me give you an example. An otherwise decent landlord takes a deposit and through ignorance or forgetfullness, neglects to place the deposit in a TDS scheme. The tenant notices, and sues for the (automatic) 3 times the amount of the deposit. Let me ask you this:

 

- What has the tenant done to earn this money?

 

You may say this is the wrong question, and you are right. So I will rephrase:

 

- What is this money to "compensate" for the tenant?

 

Let me quote the definition of compensation:

 

"Compensatory damages are paid to compensate the claimant for loss, injury, or harm suffered by another's breach of duty."

 

What loss, injury, or harm (physical or financial) has the tenant suffered? None. The punishment does not fit the crime.

 

I agree that something needed to be implemented regarding deposits, but a better system would be to prevent the landlord from making any deductions at all from the deposit, and enforce the full return of the deposit at the end of the tenancy regardless of damages, then maybe plus a SMALL amount of compensation(and here I suggest maybe 10% of the deposit, not 300%).

 

I just struggle to see the relevance of the punishment here. Especially when you compare it to cases where there have been real harm or injury, such as assault, where victims often struggle to successfully claim for punitive damages.

 

As a side note, I fully agree with Esio regarding the landlord/tenant relationship. Whether it is the landlords fault or not, once the tenant has taken the landlord to court, the trust relationship has clearly broken down, and I for one would not feel able to continue with the tenant/landlord relationship at this point.

[bobzac]

The actual terms and conditions of the DPS state that should the tenant take the LL to court in order to safeguard the deposit (after all that is what the court action guarantees, should the deposit not have been put into a protection fund) the judge has to do the following :

 

Either - Order the LL or holder of the deposit to return it in full to the tenant

or

Order the LL to place the deposit into a recognised protection fund

 

in addition the court has to - order the LL to pay compensation to the tenant of up to three times the original deposit.

 

so in essence, the judge will order the LL to pay the money into a fund then could order the LL to pay a fiver to the tenant for the inconvienience.

Of course the LL could find themselves responsible for the court fees and may have to repay interest at the rate of 8% PA.

[Planner]

I disagree somewhat Planner, and agree with Esio.

 

You cant pick and choose the law, but we can certainly discuss it. I think that the current TDS rules are somewhat draconian in the punishment stakes in that it overly punishes the landlord and (conversely) overly compensates the tenant.

 

Let me give you an example. An otherwise decent landlord takes a deposit and through ignorance or forgetfullness, neglects to place the deposit in a TDS scheme. The tenant notices, and sues for the (automatic) 3 times the amount of the deposit. Let me ask you this:

 

- What has the tenant done to earn this money?

 

You may say this is the wrong question, and you are right. So I will rephrase:

 

- What is this money to "compensate" for the tenant?

 

Let me quote the definition of compensation:

 

"Compensatory damages are paid to compensate the claimant for loss, injury, or harm suffered by another's breach of duty."

 

What loss, injury, or harm (physical or financial) has the tenant suffered? None. The punishment does not fit the crime.

 

I agree that something needed to be implemented regarding deposits, but a better system would be to prevent the landlord from making any deductions at all from the deposit, and enforce the full return of the deposit at the end of the tenancy regardless of damages, then maybe plus a SMALL amount of compensation(and here I suggest maybe 10% of the deposit, not 300%).

 

I just struggle to see the relevance of the punishment here. Especially when you compare it to cases where there have been real harm or injury, such as assault, where victims often struggle to successfully claim for punitive damages.

 

As a side note, I fully agree with Esio regarding the landlord/tenant relationship. Whether it is the landlords fault or not, once the tenant has taken the landlord to court, the trust relationship has clearly broken down, and I for one would not feel able to continue with the tenant/landlord relationship at this point.

 

Mr Shed,

 

Youve picked on the word "Compensation", there is no mention of the x3 being "compensation" in the act, so I dont think its appropriate to quote the definition of it. You could equally state that the x3 is a "fine" or an "encouragement" not to break the law.

 

I dont think that TDS is draconian, as at the end of the day its only money, on the other hand the relativly simple s21 procedure open to landlords would mean the loss of the tenants home. I for one wouldnt value an amount of money over the forced loss of my home.

 

Bobzac, i dont know where you have gotten UP TO x3 the amount from, it is in fact x3 the amount, no room for negotiation.

[MrShed]

Fair comment, but in effect the tenant is getting compensation. If it was merely a fine or punishment, the money would go to the state.

 

By the way, not saying I dont see the point of view Planner just that I happen to disagree!

[MrShed]

I will also rephrase Planner and say that I know of NO other law where the result of breaking said law is that the "victim" gets awarded an amount wholly above what they are entitled to, as a combination of actual financial loss and punitive damages. This, in my opinion, sets an unwanted precedent.

 

Also bear in mind that you are saying about the S21, which is true, but irrelevant, as this law has very little impact upon the eviction procedure - in that a) it is a totally seperate issue, apart from the way the TDS law makes it an issue and b) it does not prevent S21 eviction under the non accelerated procedure(to my knowledge!).

[Planner]

Thats okay Mr Shed, its good to disagree, thats what these forums are all about in away!!!

 

I think my point was aimed more at Esio trot suggestion of the wide ranging rights of tenants compared to the down beaten landlords!!, and in particular how the tenants shouldnt resort to the law to claim x3 the deposit but its quite acceptable for landlords to resort to the law in the form of s21.

 

I agree that there probably is a better way than TDS but for the moment we have to live with what we have!

[MrShed]

Actually I agree with Esio, albeit in one specific area - in that I think its nothing short of shocking that a landlord cannot evict a tenant that is not paying rent for probably(by the time courts come into play) 3 to 4 months. It should be much quicker than this.

 

One thing to remember, especially with the current slight downturn in the economy and housing market, is that for many(most?) landlords, it is not "only money". A lot of buy to let landlords will have funded all or part of their purchase by some form of loan or remortgage on their primary residence. Also, there is nowhere near as much profit in renting as people make out - certainly in my area I could not make a profit from buying NOW and renting out, I would actually lose money hand over fist. Therefore, unpaid rent can cause very major financial difficulties for landlords and could even cause, in the case of negative equity sales(admittedly not common right now, but the downturn of the housing market combined with the increase of repossession sales, hence below market value sales, will cause this to rise), the possibility of the landlord losing his own property. Admittedly an extreme case, but it has certainly happened, and will certainly happen in future.

[Steve__M]

I also think the law with regard to the 3 times penalty is potentially draconian. I was talking to someone who has literally just let her flat out having moved in with her boyfriend who had never heard of the deposit scheme but has no ulterior motive for not wanting to comply.

 

Reading the legislation, I do wonder whether the courts would make the order where a landlord has complied, but has complied late (after the 14 days). The legislation refers to the landlord having to comply with "the initial requirements of an authorised scheme" within 14 days.

 

The courts make the order of the 3-times penalty if "the initial requirements of an authorised scheme" have not been complied with. I would suggest that the 14 day limit is therefore not part of the "initial conditions", and therefore late compliance would avoid the fine. Perhaps I'm being optimistic.

 

This may be relevant here as the OP has not indicated whether he has complained to the estate agent yet. Maybe they have just forgotten.

[Joa]

As a private tenant, gues whose side I am going to take?

Ah, but I may suprise you

I think the penalty of deposit times 3 is quite unfair and unreasonable. I think the 14 days compliance period should be extended. I can't wait for the first judgments to get the flavour of judges attitude.

However, I have no time for those who rent out on an ad-hoc basic and then go "ooops, but I did not mean to break the law". Tough tits, as they say, or ignorance is not a defence to put it more politely

[bobzac]

 

Bobzac, i dont know where you have gotten UP TO x3 the amount from, it is in fact x3 the amount, no room for negotiation.

 

It is written under clause 2d in the Terms and Conditions of the Tenancy Deposit Scheme, seems there is room for the judges discretion.

[Planner]

It is written under clause 2d in the Terms and Conditions of the Tenancy Deposit Scheme, seems there is room for the judges discretion.

 

Then its wrong im affraid. The "gosspel" on the matter is the Housing Act 2004. In particular 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."

 

No ifs and buts im affraid.