TENANCY DEPOSIT CASE (Section 213 HA 2004)

[Joa]

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.

 

 

With thanks to Gloucestershire Shelter

[RentedAndRankled]

Joa;

 

Can you verify your source on this. HM Court Service have no listing for a court called "Gloucester County Court", theres;

 

Gloucester Crown Court (deals with Criminal cases)

Gloucester Magistrates Court (deals with Criminal cases)

Gloucester Probate Sub-Registry (deals with Probate)

Gloucestershire Family and Civil Courts (could have happened here).

 

It seems a little odd that the judgement text contains a non-existant court.

[Joa]

RentedAndRankled:

 

Can you learn to Google?

 

It seems a little odd that your post contains....what exactly? Assumption that I made it up?

 

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

[RentedAndRankled]

I tend to prefer reliable sources over the first few results from google.

 

As the HM Court Service doesn't list a Gloucester Combine Court, Crown and County court, or a County court I wanted you to check from wherever you found the details of the judgement what the court name was.

[GuidoT]

Joa - I do not doubt the case is genuine and I know the difficulties with obtaining actual written county court judgements (as they are non binding)but can you tell us the original source of the case please.

[Joa]

As I have indicated in my post, the case was taken on by Gloucestershire HAC which is part of Shelter and will appear in the next Shelter Housing Law Update, which I will post as soon as I can.

I was forwarded this summary by colleagues working in advice sector via our internal mail list.

[GuidoT]

Okay thanks, as long as it is posted on this thread I should see it.

[qbal]

Gloucestershire Family and Civil Court is often referred to as Gloucester County Court, even in their own documentation, as you will notice by the email address.

 

[email protected]

 

This would have been where the case would have been heard in Glos. as it is the one for all civil matters. If R&R had read properly he would have noticed the by-line:

"With thanks to Gloucestershire Shelter"

 

A little research goes a long way.

[RentedAndRankled]

I did read the article and you seem to be ignoring the fact that any small claims hearings normally takes place in the defendants home court should they decide to dispute the claim. Therefore even though Gloucestershire Shelter were involved with a tennant in Gloustershire they may have been fighting a landlord who lived in Gateshead and the judgement would have come from Gateshead County Court.

 

As I've said before HM Court Service maintain the authoritive list of official court names, therefore if the court name isn't on the list then it's worth double checking the details.

[GuidoT]

A claim is normally allocated to the defendant's local court, save where the claimant is a litigant in person. Where the claimant is a LIP the case in normally heard in the court nearest to the LIP which is usually the originating court.

 

Gloucester is a combined court, there clearly is a court that deals with civil matters there, you need only look here (and select Gloucestershire Family and Civil Courts from the search) and at the email addresses which are [email protected].

 

Anyway I think you should just wait until Joa responds to post 6.

[Planner]

I think your right we should wait for Joa. Although why someone (obviously not Joa!) would go to such lengths to "fake" a result only then to attribute it to a non-existent court seems a bit of a nonsense.

Things are looking up!

[RentedAndRankled]

A claim is normally allocated to the defendant's local court, save where the claimant is a litigant in person. Where the claimant is a LIP the case in normally heard in the court nearest to the LIP which is usually the originating court.

 

Isn't it the case that if the defendant is a LIP then the case is allocated to the defendants court irrespective of whether or not the claimaint is an LIP?

 

I'm in the middle of a non-TDS complaince case, bothe the LL and I are LIPs, and the case has been allocated to the LLs local court.

[RentedAndRankled]

I think your right we should wait for Joa. Although why someone (obviously not Joa!) would go to such lengths to "fake" a result only then to attribute it to a non-existent court seems a bit of a nonsense.

 

Things are looking up!

 

I very much doubt anyone would fake a result.

 

My concern was that this will be used as an example case, and although the judgement is not setting a precedent it does indicate the most likley outcome of a non-TDS compliance action, and therefore it's important to get all the details correct.

 

That is why I asked Joa to verify his source as his source may have got the court name wrong due to it not being listed on the HMCS list.

[Joa]

I was told that the claimant used N1 form but I have asked to have it confirmed for 100%.

[Planner]

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!

[Joa]

oh dear- we need a higher court ruling on deposits paid before 07 April 07 for tenancies commencing after that date.

[RentedAndRankled]

For anyone interested in obtaining a copy of the judgement the case number is 8GL00457 (Stankova-v-Glassonbury). If you wish to obtain a copy the district judge has requested that;

 

'A request should be made, by letter, duly signed, giving a reason for the

request'

[royboywales]

Surely the reverse of the new tenancy agreement stated that the deposit would be place in some recognised scheme. the landlord signed the agreement and as far as I am concerned he declared that the deposit (whenever it was given to him) would be placed as stated on the reverse of the t/a. I think whoever that judge was, was short sighted.

[Esio Trot]

I think whoever that judge was, was short sighted.

 

Not at all!

 

It would seem that the judge was dealing with the legislation as enacted, not what the government spiel was.

 

The legislation regarding deposit protection is poorly drafted, and open to ambiguity. Until, and if, cases go to the appeals court, this ambiguity will continue making it a risk for any tenant wishing to take proceedings.

[royboywales]

Just read the earlier post again. Hmmmmmmmm I supose the fact that the LL did the correct thing before the case was heard, Then it does muddy the water.

[Can_Do_Network]

I am just about to take my LL to court over this. She has withheld £800 deposit for very petty items and failed to protect our deposit. We signed as follows:

 

20 Dec 2006 - 6 Months - £800 Deposit paid

20 June 2007 - 12 Months

20 June 2008 - 12 Months

 

Having researched the Housing Act 2004 and speaking to the Deposit Protection Scheme with whom our new landlord has placed our deposit, I thought we were in a strong position to sue. As the law came into effect on 6th April 2006, it was my understanding that any new tenancy agreement should be subject to this law and our deposit should have then been placed into a scheme.

 

I think I'll start a new thread with full details, but I am doubting if we would win our case after reading this one.

 

Any thoughts?

[MrShed]

Ultimately, this is still amiguous due to no appeals as of yet. However, by the letter of the law - no, you wont win, in my opinion.

[Planner]

I am just about to take my LL to court over this. She has withheld £800 deposit for very petty items and failed to protect our deposit. We signed as follows:

 

20 Dec 2006 - 6 Months - £800 Deposit paid

20 June 2007 - 12 Months

20 June 2008 - 12 Months

 

Having researched the Housing Act 2004 and speaking to the Deposit Protection Scheme with whom our new landlord has placed our deposit, I thought we were in a strong position to sue. As the law came into effect on 6th April 2006, it was my understanding that any new tenancy agreement should be subject to this law and our deposit should have then been placed into a scheme.

 

I think I'll start a new thread with full details, but I am doubting if we would win our case after reading this one.

 

Any thoughts?

 

The law came in to effect 6th April 2007. The balance of cases at present are lost if the deposit is subsequently protected before the court date. There is also the issue of renewal - some judges consider the act then applies, some dont.

 

I would suggest that the threat of court should be enough to either get it protected or returned.

[MrShed]

Planner, just for clarity, my response was surrounding your second point. My reading of the act leads me to believe that it is fairly unequivocal that renewal of the tenancy does NOT mean that the deposit should be protected - the act specifically refers to the date of "paying" the deposit.

[Planner]

Planner, just for clarity, my response was surrounding your second point. My reading of the act leads me to believe that it is fairly unequivocal that renewal of the tenancy does NOT mean that the deposit should be protected - the act specifically refers to the date of "paying" the deposit.

 

I was thinking of the three TDS schemes FAQ/Guidance which state that upon tenancy renewal after 6th April 2007, the deposit should be protected. I think, as with most things TDS, its open to interpration.

 

However our conclusions are the same, the O/P isunlikley to win.