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TDS Dispute Returned - Missing clauses... (tennant) where to?


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Right o guys,

 

just spoken to my solicitor over the phone and its looking very good.

 

Ok first thing, he seems to back up everything stated already in that;

 

  • the landlord has not protected the money within the required time frame
  • the clauses are missing
  • has not followed the correct dispute lodging procedure i.e. informed me within the required time frame

To quote the solicitor "it looks like he (the LL) has missed the entire point of the TDS". The sol said that there is no such thing as a dead cert case in litigation BUT its about as good as it gets.

 

Here is the bad(ish) bit. This would have to go through the courts using the "Fast Track" route. This means it would be very costly, possibly amounting to a fair few thousand pounds however, it will all be done on account (with a £500 deposit) and *IF* I win, the court will award 70-90% costs as well. Should I lose, I will be liable for the FULL amount. Having said that, I am able to stop at any point and pay the bill as it stands.

 

So, I think its worth me writing to the LL and suggesting he pays 2x the deposit+ the deposit (within 30 days of the letter?) and consider the matter closed or I take him to court, pointing out the very strong case. Is this a wise thing to do? Should I maybe get the solicitor to do this?

 

The solicitor did mention something along these lines using the words "without prejudice"(?) but he said that he thinks the minimum costs would be £1500, is this something I can do myself without endagering the case should I need to proceed further?

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Why not take him to small claims for the 5k? Instead of risking a lot of money for the extra?

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

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I was thinking about this just the other day.

 

The law says that the judge "must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit". Nobody gets a say in the amount.

 

So any deposit above £1250 risks ending up not being in the Small Claims Track.

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I was thinking about this just the other day.

 

The law says that the judge "must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit". Nobody gets a say in the amount.

 

So any deposit above £1250 risks ending up not being in the Small Claims Track.

 

Thats my take on it as well Steve, don't have any choice. Its either all or nothing in this case.

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No it isnt....you can still take them for the £5000 and forego the(relatively) small amount extra....?

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

Please click the star if I have helped!!

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No it isnt....you can still take them for the £5000 and forego the(relatively) small amount extra....?

 

 

Hmmm .... my solicitor didn't mention any of that.

 

Also, tbh, £3000 of £8000 is not imo a small amount but, it is a gamble. Thats why i posted here, to try to understand how I can proceed and save some "fees" with the first few letters, the "without prejudice" letter... anyone know a template?

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Its not, a small amount I agree. But then wipe off that a) the portion of the costs that you will have to pay if you win and b) the risk of all the costs if you lose, it seems like a much more appealing option.

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

Please click the star if I have helped!!

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  • 2 weeks later...

Hey Guys

 

"we" (my solicitor and I) are about to send the first letter to the landlord.

 

Its seems we dont have many cases like this listed on the forums, in particular, one for such a high value (£8300 (deposit+3x)). Would you all be interested in me starting a new thread and keeping a history along with links to scanned documents/letters?

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I would, but I would personally advise you keep it in this thread, as it has the history.

 

Good luck!!! *crosses fingers*

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

Please click the star if I have helped!!

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First letter going today, should help him have a nice weekend ;)

 

(Obviously, stuff has been changed)

Dear Mr Landlord and Ms Landlady

Assured Shorthold Tenancy Agreement dated xx June 2007 and made between Mr Landlord and Ms Landlady (1) and StuzaTheGreat (2) (“the Agreement”) in respect of a house (“the Property”)

We act for your former tenant of the Property, Mr StuzaTheGreat.

Our client has instructed us in relation to a dispute that has arisen regarding the return of our client’s tenancy deposit.

Please find enclosed a bundle of relevant documents marked LSF1, to which we refer in this letter. The page numbers referred to in this letter are numbered pages of LSF1.

Salient Facts

Shortly before the Agreement was entered into on xx June 2007, our client provided you with a deposit cheque for £2,075.00. In accordance with Clause A5 of the Agreement (see page [ ]), the deposit was to be safeguarded under the Tenancy Deposit Scheme (TDS). The “Certificate of Tenancy Registration” document (see page [ ]) provided by the TDS, states that the deposit was protected on xx July 2007 (for forum: 6 weeks later). At your request, our client surrendered his tenancy on xx April 2008.

Landlords’ Requirements

Tenancy deposits are now subject to s. 213 Housing Act 2004, which came into force on 6th April 2007.

Under s. 213 (3) Housing Act 2004 “where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received”.

Further, under s. 213 (5) Housing Act 2004 “a landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to the authorised scheme, compliance by the Landlord with the initial requirements of the scheme in relation to the deposit etc”and by s. 213 (6) “the information required by subsection (5) must be given to the tenant or any relevant person:

(a) in the prescribed form or in a form substantially to the same effect , and

(b) within a period of 14 days beginning with the date on which the deposit is received from the Landlord.

Therefore, where a landlord receives a deposit in connection with a shorthold tenancy, he must, within 14 days of the date on which the deposit is received, comply with any “initial requirements” imposed by the specific scheme and give the “prescribed information” to the tenant.

The TDS’s “initial requirements” are contained in Clause 8.2 of the TDS Rules of Membership. This requires a landlord to provide a tenant with the information specified in Clause 14.2, within 14 days of receiving the tenancy deposit, by including the said information within the Agreement.

Under Clause 14.2, the information that needs to be incorporated within the Agreement is all that information required by The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (see pages [ ]).

The “prescribed information” that Landlords must provide to their tenants, within 14 days of receiving the deposit, is all that information listed in s. 2 of The Housing (Tenancy Deposits) (Prescribed Information) Order 2007, as referred to above.

Landlords’ Breaches

Contrary to the provisions of s. 213 Housing Act 2004, you have failed to:

1. comply with the initial requirements of the authorised scheme within 14 days of receiving the deposit;

2. provide our client with the “prescribed information” within 14 days of receiving the deposit.

This is so because you failed to incorporate the information contained in s.2 The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 into the Agreement. Consequently, you failed to meet your “initial requirements” required by the TDS in accordance with s. 213 (3) Housing Act 2004 and further, failed to provide the “prescribed information” in accordance with s. 213 (5), with 14 days of receiving the deposit.

In addition, the Certificate of Tenancy Registration states that the deposit was not protected until the xx July 2007 (for forum: 6 weeks later), significantly later than the 14 day timeframe.

The result of this has been to deprive our client of resolving the deposit dispute through the TDS. In accordance with Clause 7 of the TDS (see page [ ]), our client attempted to utilize the Independent Case Examiner by completing the Notification of Deposit Dispute Form. However, as you will see from the letter of xx June 2008 at page [ ], The Dispute Service Limited is not able to progress the dispute because there is “no prescribed clause included within the tenancy agreement that refers to TDS scheme”.

Had you complied with the above legislation, the requisite dispute resolution clause would have been included within the agreement.

In summary, the provisions of The Housing Act 2004 make it a requirement that any Landlord who wishes to take a monetary deposit must safeguard that deposit with an authorised tenancy deposit scheme; the two main aims of this being to safeguard the tenancy deposit and to facilitate the resolution of disputes arising in connection with these deposits.

Due to your failure to comply with s. 213 Housing Act 2004, our client is entitled to apply for a Court Order under s. 214 Housing Act 2004, ordering that you repay the deposit to the tenant in full. Further, if the Court is satisfied that the deposit was not held by you in accordance with an authorised scheme, the Court must order that you to pay to the tenant an amount equal to three times the deposit amount, within 14 days of making the said Order (s.214 (4) Housing Act 2004.)

In light of this, our client requires payment equal to four times the deposit equalling £8,300 with 21 days of the date of this letter. If you fail to make this payment within the timeframe, then we will seek our client’s instructions to apply to the Court for an Order that you pay these monies.

We look forward to hearing from you.

Yours faithfully

Solicitors

 

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OK - recieved a letter back from the landlord yesterday saying that he has passed my letter on to the letting agency as they introduced us. It seems to me that he is passing the blame back to them. As far as I remember (solicitors currently have it all) the agency has no mention apart from being the "introducer" in any documentation anywhere.

 

He has also said that he is not registered with the TDS and the agency would of done all of this. Again as far as I remember, the agency wasn't mentioned anywhere on this documentation. Does this mean he is/isn't responsible and the agency is? If he is, does this mean he didn't realise he was and is now in a whole world of hurt as he didn't check his role properly?

 

Is anyone still reading this test case???

 

Are we the only ones in the galaxy????

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The agent acts on behalf of the landlord (literally, as the legal agent of the landlord). This basically means legally for you that the two parties are one and the same. Proceed as you are, the landlord has ultimate responsibility for this.

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

Please click the star if I have helped!!

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Hey Humpy,

 

welcome to the thread!

 

The clauses are part of "The Dispute Service Ltd" clauses, one of the three big mediation services. Without these being in the contract, the TDS has no legal power so, making the contract illegal as I cannot resolve the issue through an independant without going to court.

 

I've been told by people on here the other two big services dont need these included however, having spoken indepth (as you can imagine, its worth £8000++!) it appears the clauses need to be in any contract or the "TDS" has no power.

 

If you need to know more I can look these up at work and point you to them for my service but they will all be under diferent appendicies for each company.

 

This is as far as I am aware a test case as its well above the small claims limit of £5000.

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Hey Stuzathegreat, sorry for jumping rather late on the bandwagon, but I am also taking prev LL to court for unpaid deposit in dep scheme til 3 months after departing from property!! Whilst not entirely the same problem I really emapthise and admire the way you are dealing with this. At times over the last 3 months i have felt like physically hurting prev LL. He has (but) we cant prove it, took a child benefit cheque that he knew we were waiting for from our old address that was delivered there by mistake but has never cashed it. Now that gripes me - its my 2 daughters money and it has NEVER been mis- mailed before he seems to have it in for us for no good reason, greedy LLs will always get whats comin!! so dont you worry, i have every faith you will win- I know it!!

 

Note: We too like you are in a new rented prop. Lovley LL's and all that but 5 months on and still no DPS certificate, they say they have it at their house and will send it on- and although we like them im beginning to feel cheesed off that they know we are going to court already and they have neglected to do the same thing!! Bloody mad!! Sorry for ranting - im turning in to Victor Meldrew!!

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Funny how landlords can turn completley normal and reasonable people into a Victor Meldrew type person :lol:

 

Sadly, and something you need to be aware of, the courts seem to be giving mixed messages on the 14days protection/provide documents to tennants rule. We have heard on these very forums of people taking the landlords for this violation and them being rejected. One person we even told that he needed to take the LL to court DURING the tennancy and not after ..... how does that make sense????? We all suggested that the person should appeal the ruling but I don't think they did....

 

Fingers crossed for you but be aware :eek:

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Hi Stuzza,

 

How are you getting on with the court action?

 

I almost have the exact same case with the exception of they did secure my deposit before the 14 days bit didnt give the clauses as required in the tenancy agreement.

 

I have put my case to court and the landlord is defending that it was the agents job to do it and that he had paid them to do it. I am going to put my case forward for Legal agent and the landlord as being ultimatly responsible! We shall see how it goes but I would be very interested to hear how you get on. By the way I have contacted the TDS and asked for the clauses that should have been there. If I get them I can pass them on if you wish? Also I have asked the TDS for a letter saying that the landlords agent didnt comply with there initial requirements and prescribed information which they where happy to supply. It adds weight behind your case to have a look.

 

Lastly have a look at this Communities. gov. uk it seems to say the LL is responsible for persuing the agent but I have been told that these are only guidelines so perhaps treat with a pinch of salt. I have asked them to tell me how they came to this conclusion and I am now awaiting a response.

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We do indeed have virtually identical cases! And yes, my xLL recieved the letter from my solicitors and passed straight to the agency saying that it was there responsibility. Thing is, the agency are not on any documentation, its all his name on everything including the all-important TDS certificate!

 

I suspect the agency may have been asked/voluntered to protect it for my xLL but ensured he kept responsibility for it by asking him to sign a few forms etc. I suspect my xLL has not got his own legal advice and because of that, may well be in for a very nasty shock!

 

If you are/were part of "The Dispute Service" then the clauses are Appendix four (14.2?) if my memory is correct (look through this thread its near the start). Also, when you send off the TDS dispute, it will get sent back with a letter telling you the clauses are missing - so in effect, I have all this evidence allready :)

 

I would be very interested in the response you get from the .gov site!

 

I am currently waiting for my solicitor to update me and I hope he will do so today. As soon as I have more news, I will let you know :) Keep us informed of your progress here aswell!

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Exact same! My landlord is the one on the cerficate BUT the address that the cert is for says 110 Loki 117 street when I actually stayed in 62 Loki117 st! I am not going to use that as any form of defence but I shall be showing the judge it as an example of there lack of attention to detail or there complaceny in dealing with TDS complience.

 

 

Thanks Stuzza your information is much appreciated.

 

One point though the section you refer to 14.2 only refers to the TDS G clauses it doesnt actually give them they are only avalible to members of the TDS. You can find out from Appendix 4 what "prescribed information" should be shown BUT the TDS are specific in saying it should be included via there supplied clauses.

 

I've asked them for a copy for a court case but looking at the tenancy agreement which my new agency has given me there 2 pages 12 clauses 3 disclaimers and a section requiring that the landlord and tenant sign or at least that the tenant is given the option to sign!

 

Another point is "Information supplied to the landlord as a document should be passed on to the tenant" I dont know about you but I received no such document again the TDS say this should be distributed as it is part of the prescribed information.

 

I have one concern though if you look through the TDS member rules it refers to 14.2.3 as the required initial requirements which must be provided to the tenant within 14 days. 14.2.3 doesnt exist! This could be a large issue! Have a read its in point 8.2

Edited by Loki117
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Hi Lokki

 

yeah I have spoken to my solicitor regarding that paragraph 8 bit and he seems to think it won't be a problem.

 

Again, the reason I have such a strong case is just because of all the documentation that the landlord was supposed to pass to me, in the form of attached clauses or otherwise, that he didn't.

 

If you look back to page two you will see my solicitors letter to the agent, don't know if it will be usefull to you?

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Hi Lokki

 

yeah I have spoken to my solicitor regarding that paragraph 8 bit and he seems to think it won't be a problem.

 

Again, the reason I have such a strong case is just because of all the documentation that the landlord was supposed to pass to me, in the form of attached clauses or otherwise, that he didn't.

 

If you look back to page two you will see my solicitors letter to the agent, don't know if it will be usefull to you?

 

Yeah your letter does help a load Stuza. Thank you. I got the TDS G clauses today from the TDS would you like for me to sent them over to you? they are certainly an interesting read. If you drop me a PM with your email address I can send them on.

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The agent acts on behalf of the landlord (literally, as the legal agent of the landlord). This basically means legally for you that the two parties are one and the same. Proceed as you are, the landlord has ultimate responsibility for this.

 

Just had this confirmed by my solicitor. Basicaly, the solicitor is uninterested in the landlord passing "the buck" to the agency and has said that in 21 days, with my permission, he will start legal proceedings against the landlord.

 

With this in mind, I strongly suspect that the LL has not gone to a solicitor ... boy, is he going to be in for a shock in a couple of weeks!

 

Again, the solicitor has stated that although the agency may of helped, the landlord is ultimatley responsible, NOT the agency. That said, the LL could now sue the agency for breach of contract - assuming there was one ;-)

 

As anyone knows thats been following this thread, I am very happy about this as the agency were excellent and very helpfull to me. They even went to the levels of commenting on the poor condition of the property in a letter to the TDS (which sadly never helped ... hence this case). I truley hope the LL has screwed up on his contract with the agency and doesn't have a sufficient case to take the agency to court.

 

 

Now to let the 21days expire......... :cool:

 

 

p.s. what i find the funniest about this is, the landlord on his headed paper has "Contract advise" as part of his companies services ... :lol:

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Just had this confirmed by my solicitor. Basicaly, the solicitor is uninterested in the landlord passing "the buck" to the agency and has said that in 21 days, with my permission, he will start legal proceedings against the landlord.

 

With this in mind, I strongly suspect that the LL has not gone to a solicitor ... boy, is he going to be in for a shock in a couple of weeks!

 

Again, the solicitor has stated that although the agency may of helped, the landlord is ultimatley responsible, NOT the agency. That said, the LL could now sue the agency for breach of contract - assuming there was one ;-)

 

As anyone knows thats been following this thread, I am very happy about this as the agency were excellent and very helpfull to me. They even went to the levels of commenting on the poor condition of the property in a letter to the TDS (which sadly never helped ... hence this case). I truley hope the LL has screwed up on his contract with the agency and doesn't have a sufficient case to take the agency to court.

 

 

Now to let the 21days expire......... :cool:

 

 

p.s. what i find the funniest about this is, the landlord on his headed paper has "Contract advise" as part of his companies services ... :lol:

 

 

 

Be careful Stuza I know the lawyers know there job etc but when you look at the housing act it really does have the landlord and agent on equal standing. Just be aware of it.

 

I am in the same boat as you would REALLY like to have the landlord accountable for this as he has been an absolute nightmare including screaming at me down the phone for "hounding him" granted I sent him an email every day asking if he intended paying the judgement against him (this was before he had requested that the judement be set aside) but this is my right to persue someone for money they owe me. Anyway back to my point just be careful because if they can sidetrack the case in front of the judge to be an argument over who is accountable the fact that one of them hasnt done what they should have could escape the judge. However if they want to concentrate on pointing at one another while you tell the judge what whoever the choses should have done this could work out well.

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Cheers mate

thing is, no where on any document is there a signature from the agency... EVERYWHERE and i do mean EVERYWHERE, its all signed by the LL. The tennancy agreement, the pi*& poor check-in inventory, the incredibly detailed check out inventory, the TDS information, absolutley everything .... all the LL's sig.

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