New TDS Case, N208 FILLED and SERVED

[Guest Alison82]

I have just filled my N208 for against my landlord for a deposit of £1200 that was not put in a TDS scheme and it has been served.

 

Initially there were 2 of us original tenants and we signed the agreement and paid the deposit. We then took in a third person for the extra room, our tenancy agreement states that we can have "other occupying bodies", now my landlord says that we sublet the room which I believe that we didn't as it states in the contract. The new tenants paid rent directly to the LL in the account and the new tenant was included in all correspondents, even the N21.

 

Also, the LL is saying we stole items from the property, we didn't, we threw away items that we left there from previous tenants such as old pots, a tatty duvet an pillows, cutlery as we had our own stuff and the main LL said we could verbally (not his wife who is the one saying we stole the stuff)

 

Will this bring up any other complications in regards for our TDS claim?

 

We have started the claim against the LL only and not his wife as the second defendant as this was advised by the judge from my last case with my previous LL a few weeks ago (not TDS related)

 

We rented the property in June 2007 and left October 2007.

 

Many Thanks

[Planner]

Good Luck, keep us posted.

 

Be aware that there is a successful result on here now that Joa has posted the transcipt of (in the TDS sticky at the top).

[Guest Alison82]

Thanks, I'm looking forward to it, gor rid of one bad LL now the final one.

 

I'm sure it won't, but will allegations of subletting and missing utensils jepordise my claim?

[Guest Alison82]

Bump

[Steve__M]

Since you've no reply, here's my 2p worth.

 

The landlord's allegations are entirely irrelevant and if he seeks to bring them up you should make this quite clear. From the case that has been reported recently:

 

"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."

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/138758-tenancy-deposit-case-section.html

 

ie. you could have murdered the landlord's wife and buried her in a large hole under the living room floor and he would *still* lose the case. (I'm not suggesting anything )

[Guest Alison82]

Ha ha ha

 

Ok many thanks, I'll keep you all posted

[Guest Alison82]

Hi I have recently issued a TDS claim on an N208 form, the deadline for acknowledgment has now passed and my claim is now with the judge.

 

I am unsure of what to do now as I think my ex landlord is trying to ignore the claim, he definitely has it as his wife spoke about it with our flatmate.

 

Should I just file for a judgement and would a charging order be the best option? Also how will the judge decide whether to give the times three compensation or not if they don't submit any defence or argument?

 

Thanks in Advance

[Guest Alison82]

Bump

[Ed999]

If the time limit for the landlord to file a defence has passed, make a written application for judgment to be entered.

 

If you are a litigant in person, the information pack that the Court gave you probably contains the form for applying for judgment in default of defence. If not, phone the court and ask them to post you a copy of the appropriate form or download it from the Court's website.

 

If the landlord is not defending the claim, the judge will make the order that you have applied for. No further evidence should be necessary from anyone. So provided your application was correct, you will receive an order in the terms you applied for.

 

 

Once you have a judgement, enforcement proceedings are dealt with in this thread: http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/116744-got-judgment-how-get.html

 

The type of judgement you will get if the landlord has not bothered to reply to the Court, or has failed to file a Defence, is called a default judgement.

 

The landlord can apply to have this type of judgement set aside (i.e. cancelled). If that happens, enforcement is stopped and the whole case has to go back to a full Hearing.

 

The trick is not to try to enforce this type of judgement within 28 days of it being granted. After that time, the landlord has to show a good reason before the Court will set judgement aside.

 

 

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

Edited May 10, 2008 by Ed999

[Guest Alison82]

I spoke to the courts and apparently LL asked for an extension as he had not acknowledged the court agreed and now a Directions Hearing has been set?

 

Does anyone know why this could be, I have a feeling LL might have told the courts lies to taint our name but I'm not 100%

 

Thanks

[Planner]

I think abitofapicle had the same thing in their claim. Its a hearing to decide if the case should be dealt with through N208 or through N1. You should fight bitterly at this to ensure its N208, as if it heard through N1 your landlord will start saying you havent cleaned this and youve damgaed that etc.

[Guest Alison82]

Ok thanks, can you point me to the right dircting as to why it should be a N208 route as I was unsure from the start but was advised by many that it should be the N208

 

Thanks

[Steve__M]

I am not a lawyer. You probably need to read the following at least twice

 

PART 8 - ALTERNATIVE PROCEDURE FOR CLAIMS

PRACTICE DIRECTION – ALTERNATIVE PROCEDURE FOR CLAIMS - This Practice Direction supplements CPR Part 8 and Schedule 1 & Schedule 2 to the CPR

 

Relevant points seem to be that part 8 is relevant as follows:

 

A claimant may use the Part 8 procedure where –

(a) he seeks the court’s decision on a question which is unlikely to involve a substantial dispute of fact; or

 

 

and the defendant may object if he contends that there is a substantial dispute of fact.

 

I would argue that the judgement is solely about whether or not the deposit was protected, and that the answer is easily established.

 

The remedy is clear in statute.

 

Issues of damage and dilapidations are a completely separate matter. And anyway they would be dealt with by a tenancy deposit scheme if the deposit were protected.

[Planner]

Cant agree more. Theres quite extensive discussion of the N1/N208 route on here and the landlordzone site. The general concensus is as steve_m posted above and that N208 is the correct path.

[Guest Alison82]

Thanks guys, I'll read up on what you sugested and I'll keep you all updated!

 

[Guest Alison82]

Hi fellow CAGers here's an update with my case

 

We had a date set in July but we had to postpone it due to the other tenant having commitments on that date, the second date was set for last week but LL postponed it, not sure why, the third date is in October. The judge said it would be another directions hearing but if both sides are prepared we can deal with it then.

 

They have made a counter claim for alleged damages and theft (there was not theft we threw away previous tenants cast off such as burnt pots and pans and bobbly bed linen as LL said we could, we have a witness for this, they have provided printouts from a the ikea website as their proof of purchase but no receipts, they are also claiming a month and a half's rent, this is the last month and a half of our contract pre the break clause however we all agreed to move out early, we made arrangements to give back the keys which they accepted, they also changed the locks. They are also charging us for the locks (which doesn't make sense; how can we live there and pay rent with keys that don't work?!) they are claiming inertest from their mortgage on this extra rent (which is not calculated how the AST says)

 

I am not in the slightest bit worried about this as their arguments won't stand up, and regardless they did not put our money in a TDS scheme.

 

When they gave us the section 21 they said they needed to sell as they couldn't afford the extra surplus payments; we later found out that they didn't want to sell instead they re-let it at a higher price (I think I'll bring this up).

 

However I am bit concerned about the times 3 compensation, because if we do win, they are guaranteed to make a fuss saying they cant afford to pay and we may only get our deposit and that's it. Sorry if this sounds greedy but after the hell LL and his wife put us through I think we deserve it

 

Any thoughts on this?

[RentedAndRankled]

First off, As long as the LL hasn't put the deposit in a TDS you're pretty safe in claiming as long as the tenancy was an AST and the LL didn't live at the property. There are several methods which can be used to enforce a judgement, see the thread at http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/116744-got-judgment-how-get.html for more info.

 

As per the counter claim, it will most likley come down to whats in writing. Do you have move-in and move-out inventories?, copies of the rental agreement and notices served?, written copies of the agreement to move out early? because if you're claiming it in court it will need to be proven usually via written means.

 

This works two ways, so, for example you didn't break the locks, and you returned all the keys, unless there is a clause in tenancy agrement it's unlikley you'll be expected to pay for the lock changes.

[Guest Alison82]

Thanks for your reply.

 

We have everything in writing except a moving out inventory, the moving in inventory didn't mention contents such as posts and pans etc anyway.

 

It is a AST and LL did not live there, I think we will be ok, unless the judge feels sorry for them if they say they can't afford to pay the x3

[RentedAndRankled]

If the move-in inventory doesn't mention the items then they'll have difficulty claiming for them because you can always argue that if the items were ment to be kept why were they not listed on the inventory so that they could be checked at moving out time?

 

The judge isn't at liberty to use their discretion with an award for non-TDS compliance. They can't refuse the 3x penalty just because they feel sorry for the LL, the judge can only refuse it on a point of law. If the LL can't pay then the problem is yours in so much as finding a way of getting the money from the LL and for that you can use the methods linked to in my previous post.

[Guest Alison82]

Ahh, Ok thanks very much!!! I will keep you all posted

[Guest Alison82]

I was reading on MSE that if the LL protects the deposit before the court date then they won't have to pay the compensation.

 

Is this true?

[RentedAndRankled]

There is one case where the T lost because the LL protected the deposit before the T lodged a claim with the courts.

 

So far I know of no case where the LL has protected the deposit after a court claim and so it's been untested. The letter of the law appears to suggest that the T will win if the deposit is not protected at the time of application to the court (i.e. when you file your claim), but that isn't a guarantee.

[Guest Alison82]

So that LL protected the deposit before T filed their N208 form?

[RentedAndRankled]

See http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme-3.html#post1682709 for more details.

[Guest Alison82]

Thanks