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


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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.

 

 

Sorry but thats not true - the agent is someone acting ON BEHALF of the landlord. You as a tenant have NO LEGAL RELATIONSHIP with the agent - the agents only "customer" is the LANDLORD.

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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Sorry but thats not true - the agent is someone acting ON BEHALF of the landlord. You as a tenant have NO LEGAL RELATIONSHIP with the agent - the agents only "customer" is the LANDLORD.

 

But this is precisely the area where the Housing Act is poorly drafted. In s213 it states:

(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must ...
and then it says be dealt with in accordance with a scheme (No mention of 14 days here!)

 

Just two clauses down it then changes to

(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy ...
it goes on to give a time limit of 14 days from receipt.

 

Therefore, would it not be possible for the agent, holding the deposit, and not passing it to the landlord to absolve the landlord under the 14 day rule. The landlord can say as his defence to any court action, "under s213(3) I have never received the deposit, and so I am not subject to the 14 day rule. Sue the person who received it (i.e. the agent) not me".

On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Read anything I write with the above in mind.

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Sorry but thats not true - the agent is someone acting ON BEHALF of the landlord. You as a tenant have NO LEGAL RELATIONSHIP with the agent - the agents only "customer" is the LANDLORD.

 

 

Hi MrShed I agree I have no contract with the Agent BUT the housing act says that Landlord can mean agent in the act so even although the landlord is supposed to handle the deposit the agent could be responsible.

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But this is precisely the area where the Housing Act is poorly drafted. In s213 it states:

and then it says be dealt with in accordance with a scheme (No mention of 14 days here!)

 

Just two clauses down it then changes to

it goes on to give a time limit of 14 days from receipt.

 

Therefore, would it not be possible for the agent, holding the deposit, and not passing it to the landlord to absolve the landlord under the 14 day rule. The landlord can say as his defence to any court action, "under s213(3) I have never received the deposit, and so I am not subject to the 14 day rule. Sue the person who received it (i.e. the agent) not me".

 

 

Hey Esio,

 

In my case and Stuza's the fact that it doesnt say 14 days is not important as the TDS stipulate in there rules that is should be done within 14 days by the "member" so this is covered by the line "in accordance with the scheme" HOWEVER the "member" 9/10 times is the agent and not the landlord so this is why I would take both the agent and landlord with you to court and let the judge decide who is responsible.

 

From a purely "will i get my money" point of view the best result would be if the agent was held responsible as they are of fixed address and have a bigger business but it my case like Stuzas the agent have actually been very good the landlord has been a nightmare.

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In my case, the "member" is the landlord. As mentioned above, the letting agency isn't mentioned anywhere. And as mentioned, the solicitor said the LL may have a "breach of contract" case against the agency should I win against the LL.... hope they don't though ;)

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In my case, the "member" is the landlord. As mentioned above, the letting agency isn't mentioned anywhere. And as mentioned, the solicitor said the LL may have a "breach of contract" case against the agency should I win against the LL.... hope they don't though ;)

 

 

Hey Stuza the agent may not be mentioned anywhere in the docs BUT they could still be the "member" it depends who the TDS face off to and who pays there membership fee is it the agent or the landlord?

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No idea BUT ... i do know that when I spoke to the TDS they did confirm the LL was a member, I just don't think he knows it :wink:

 

 

Man thats going to be a nasty surprise for him when he finds out....

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  • 2 weeks later...

Just had a phone call from the agency (went to voicemail) asking i we can have a "without prejudice" telephone conversation. Seems to me, the only reason they would do this is that they are very fearfull of the case.

 

I've emailed my solicitor asking him if I can talk to them safely and what I can/should/shouldn't say.... will update once i know what they want to talk about.

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Just had a phone call from the agency (went to voicemail) asking i we can have a "without prejudice" telephone conversation. Seems to me, the only reason they would do this is that they are very fearfull of the case.

 

I've emailed my solicitor asking him if I can talk to them safely and what I can/should/shouldn't say.... will update once i know what they want to talk about.

 

 

Hey Stuza could be a settlement discussion my landlords agent settled with me on Friday although I am still awaiting the documentation.

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hope so! I don't mind saying that the legal fee's are just under £1000 now and obviously, this will only go upwards! So, at the very least now i'd be looking for over £3000 just to get my money back and cover fees.

 

If you don't mind me asking, how much more did you get back by settling out of court?

 

edit; sorry, i ment in some sort of ratio/percent format? 150%? 200%?

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  • 2 weeks later...

OK guys, update for those still following:

 

Its now been 21 days (infact over) and as expected no word from the landlord. The landlord, as can be read above, merley forwarded on my letter to the agents.

 

The agents then called me to discuss "without prejudice" at which I explained that I need them to clarify why they are talking to me - my complaint is against the LL and not the agent.

 

So, with no further comment from the agent, my solicitor is now proceeding with a "further 7 days" letter to the LL which is apparently standard. It is expected that he will then finaly seek legal advice, find out how f(/ked he is and respond. If he doesn´t, then the middle of next week, I start proceedings.

 

We suspect that the Agent was trying to head off any potential issues with the LL by closing the case directly with us but, as they are aware that its a mater of principle for me I am only interested in persuing the LL. I also suspect that the agency will have a 50/50 chance of winning there case anyway as I doubt there was any proper contract etc.

 

 

Fingers crossed!

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  • 3 weeks later...

Hi Guys

 

latest installment/update

 

OK. I was given three options now the 21days+7 further days is over:

 

  1. Start court procedings (estimate of £15000 worth of legal expenses total)
  2. Issue a "statuatory demand" and 7 days later start bankruptcy proceedings on the LL
  3. Offer a get out with an amount to settle outside of court.

I have chosen to ask my solicitor to send a Statuatory Demand for the £8300. As this can only be done on a "fixed amount" that is in clear breach of the law I will not get my legal expenses however, it only takes 7 days, very little faffing around in court and costs me only a little extra.

 

I have also told my solicitor that I will settle for £5500+ALL legal expenses, should they come back with an offer.

 

 

Will keep you informed - assuming someone is actually reading this.....?

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I fail to see how you can do 2 without having done 1??? You cant issue a stat demand for bankruptcy without having a court order for that amount to begin with!!!

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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HI MrShed/others

 

this is an email from my solicitor explaining how a bankruptcy will affect the case (i too was confused but now its perfectly clear):

 

 

Dear Stuzathegreat

 

At its simplest, the impact of a bankruptcy Order against your former Landlords is that their assets will be sold in order to repay their creditor(s), including you. Your former Landlords' assets would include their properties. If they have mortgages, on being made bankrupt, the Landlords' mortgagor will require the "Official Receiver" to redeem the mortgage, potentially leaving the Landlords homeless. Thus, it is highly likely that your former Landlords would rather settle this dispute (by increasing their offer to a level suitable to you), rather than risk losing all of their properties.

 

In terms of procedure, we serve a Statutory Demand on both Landlords as a pre-cursor to instigating Bankruptcy proceedings. As a bankruptcy petition may only be presented to the Court on the grounds that a debtor is unable to pay their debts, if the Statutory Demand fails to produce payment, you can rely on the failure of the Statutory Demand to prompt payment as evidence to the Court that the Landlords' are unable to pay the amount due.

 

In practical terms, as we are not aware of the Landlord's financial status, it is difficult to predict the affect of the Landlords' bankruptcy on your award. However, on the grounds that the Landlords have a number of properties, I would anticipate that there are sufficient funds, after settling the "priority" debts (secured debts such as mortgages) to cover your award. It is also difficult to confirm with any real certainty how the Courts would treat the tenancy deposit held by "the estate agents". This is primarily because the legislation is new and has not been tested. However, in this case, it is likely that the Official Receiver would simply look to settle your dispute as soon as possible.

 

Notwithstanding the above, the rationale for serving the Statutory Demand is not necessarily to pursue bankruptcy proceedings, but rather, to benefit from the threat of issuing a bankruptcy petition. We would therefore use the Demand as a tool to increase the Landlords' current offer.

 

With reference to your offer of £x,000 plus legal expenses, this may well be acceptable by the Landlords if they are threatened with potential bankruptcy proceedings. I suggest that we serve a Statutory Demand (where the offer will be £fullamount), and wait to see how the Landlords respond, which they must do within 21 days.

 

I've instructed the solicitor to issue the demand, any thoughts or comments?

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  • 1 month later...

Good result :) shame it didnt become a case in some ways, but you cant grumble at that from a personal point of view!!

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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Indeed it is mate and thanks for your advise!

 

With this case though I have learn't the value of good solicitors. My solicitors have continualy briefed me throughout the process - as you would expect - and have told me about some of the oposing solicitors desperate statements. The LL/Agency even had to dump the first solicitors as they couldn't handle the case!

 

All in all, after legal expenses etc this puts me back at receiving twice my deposit which isn't too shabby. The only thing that upsets me about the outcome is that I suspect the LL will pay none of it and its all coming from the agency. To be fair, its the rubbish contract from the agency that caused this BUT it was the landlords sheer greed and cheek that kicked it all off.

 

 

Anyway, all done now and guess what, the new contract doesn't have the clauses either! You may see me back here in a few months, this time claiming over £12000!:eek::grin:

 

 

 

Again, thanks all for advise and I hope this can help someone in the future.

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You learn something new here every day! The statutary demand is potentially quite powerful:

 

Legal Issues Explained - Statutory Demand

 

Winding up and bankruptcy petitions | Business Link

 

Stuza, if I were your landlord it sounds like a potential defence is to "re-protect" deposit money into the DPS as they don't have any "initial conditions" to fulfil:

 

The Landlord Law Blog: Another tenancy deposit decision

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Aye, i'd heard about that. Luckily my landlord/agency had not - another reason to have a good solicitor!

 

What this basically says is that you can steal but IF you get caught, THEN start following the rules and you won't have any issues .... otherwise, you win!

 

 

Basically, it seems the whole situation is back to square one for tennants and we don't have any powers again. LL's and judges who refuse to follow the rules have put the power straight back into the LL's hands.

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  • 3 weeks later...

This is very interesting. Thanks to Steve M who directed me here. I'm with TDS, although my la actually led us to believe that the deposit was with the DPS (clause 6 of the contract contained the DPS details). They've since (yesterday) sent a letter amending clause 6 to refer to the TDS scheme. Turns out it was with them all along (phone call confirmed it had been since 1 month after we paid it) but the la was too incompetent to inform us until now (7 months in). Also, the TDS rules are not appended to the contract, nor have we had a certificate from them passed to us.

 

Now there's 5 months still to run (fixed term of 12 months, we'd like to leave so are starting to look for tenants) but I don't see what I can do next.

 

Nothing in particular against the ll - not dealt with him - but the la has been fairly poor (we didn't get the contract or 2 months after signing it). Considering the tenancy is still running, I don't see how a judge can make an order to return or protect the deposit, which surely means there's no route to penalise the la via s.214(4). The la is a registered member of TDS (no idea if the ll is) and has clearly failed to meet the TDS requirements (protection within time frame plus notification of us within the time frame plus notification of the incorrect scheme plus incorporation of their rues into the contract) despite the deposit being protected. Now they're seeking to rectify the erroneous contract with unilateral amendments. I need to check the contract but surely any amendment needs our signature on it?

 

I guess I should retain a lawyer and send a letter the TDS outlining the fact and then t to the la / ll? Could we get the ll to settle by requesting our deposit in full plus the option to leave at 30 days notice? Can we threaten to claim under the HA 2004 or are the grounds insufficient?

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