Deposit Protection - A total waste of time!

[billy_79]

TDS case lost, and it's all the tenants fault for not asking the LL to protect deposit!

 

Tenant took Landlord to court for non compliance, the judge fully accepted that the deposit should have been protected, looked like tenant had won. Then the LL then claimed "it's not an assured shorthold tenancy, so TDS doesn't apply." The Judge can't find a copy of the 1988 housing act for the definition of an AST, so adjourns and reschedules so that he can find out. His closing comments were "if it's an AST, deposit should have been protected."

 

Reconvened weeks later, the judges opening statement (after allegedly reading the relevent housing acts), were that yes it was an AST, but as the tenancy has now ended there can be no claim for TDS non compliance.

 

The judge asked "where in HA 2004 does it say that the tenant can claim after the tenancy has ended?" Well, it doesn't as far as the tenant could see, so couldn't argue it. Tenant had results of similar cases where tenant was awarded 3x plus deposit back, but the judge wouldn't budge.

 

 

Apparently it was the tenants fault for not asking the LL to protect the deposit! Case dismissed! Got the distinct impression that the judge only adjourned to search for a loophole to get the landlord out of trouble.

 

What a total waste of time and money. Now landlords can flout TDS, if the tenant tries to enforce it, LL evicts them for being 'difficult', and the court can't do anything because (and I'm sure the Judge was wrong) 'there can be no claim after a tenancy has ended'.

[Redmax]

So sorry to hear that especially as I have a case coming up soon (although we are still in the tenancy). Doesnt sound right to me though cos surely a lot of tenants are only going to find out their deposit isnt protected when they have problems getting it back at the end of the tenancy. I think any new laws should come with guidelines/instructions for judges to avoid this happening.

 

In my view you have been penalised with regard to the court costs for bringing the action and that's not right.

 

Is it too late to appeal ?

[billy_79]

The tenant is considering appealing on this case. Anyone got any experience of small claims appeals process?

 

Any other comments? Is it likely to be a waste of time and (more) money. Not even sure what form to use to request an appeal. The lady in the court office was most unhelpful -

 

"You can't start an appeal until you get the result in writing, and all the details on appealing will be included". Now received confirmation of the result, and no, there is no info on appeals process. :-?

 

"There's no point in appealing on a point of law - the judge knows the law, and they don't get it wrong"!

 

Can anyone direct me to the correct form for appealing a small claims court decision?

[MrShed]

As I said on other threads billy, I think this case MUST be appealed. No, I dont think it will be a waste of time and money.

[billy_79]

Tenant has been advised by a solicitor that it's probably not worth appealing, as the solicitor believed that the reason the judge dismissed it was due to it being a replacement AST (i.e. the original deposit was paid over before 6th April 07). So the solicitor advised against appealing as the there is no precedent yet on whether a new AST (that replaces an exisiting one) requires DPS. Solicitor also quoted the shelter website info:

 

"What if I paid a deposit before 6 April 2007?

 

If your tenancy started before 6 April 2007, then you will not normally be protected by the scheme. However, if you have been given a new tenancy agreement since that date, you should get advice. In this situation, the law does not specifically say that your landlord has to protect your deposit, but the Government has suggested that they should do so. An advisor may be able to help you come to an agreement with your landlord."

 

Even though the judge agreed in the hearing that it was a new tenancy and the deposit should have been protected (he still dismissed it for the tenant not making the landlord protect whilst the tenancy was current, although no reason is given in the judge's written verdict), the solicitor advises that an appeal will be compromised by deposit being received before 6 April 07.

 

The tenant is not really willing to risk even more money on a test case/appeal, so it looks like another victory for the landlords.

[MrShed]

I disagree with the solicitor. The law does state that the deposit should be protected.

 

Do you know how much the costs will be?

[billy_79]

I disagree with the solicitor. The law does state that the deposit should be protected.

 

Do you know how much the costs will be?

 

No idea what costs are involved in appealing, can't find any useful information on it. We can't even find the correct form to appeal with!

 

All we can find is on this guidance (The requested resource (/HMCSCourtFinder/tiles/Her Majesty's Courts Service -Forms and Guidance) is not available):

 

In the following types of proceedings the Court of Appeal is very unlikely to be

the appeal court.

Small Claims

The small claims track is the normal track for

any claim for personal injuries where the financial value of the claim is not more

than £5000 and the financial value of the claim for damages for personal

injuries is not more than £1000;

any claim which includes a claim by a tenant of residential premises to require the

landlord to carry out repairs and the costs of the repairs is estimated to be not

more than £1000;

any other claim which has a financial value of not more than £5000.

10. The circuit judge is the appeal court where the decision being appealed was

made by a district judge hearing a claim allocated to the small claims track.

11. Where, exceptionally, a circuit judge hears a claim allocated to the small

claims track, a High Court Judge is the appeal court.

 

 

Mr shed, do you know what form we should use, or what costs are/could be involved?

[billy_79]

p.s. what do you make of the shelter statement. They are implying that it is a grey area, as yet untested.

 

The only appeal form we can find is N161, but it says in big letters "All appeals except small claims track appeals". We can't find any other forms?

[MrShed]

They are dead right. It is just that my opinion(and that of many others) is that we are fairly confident that the first test case will result in enforcement of TDS for renewals.

 

With regards the appeal - sorry, I have sweet FA experience with appeals I'm afraid!!!! Someone else should know though....

[Redmax]

From this link to court fees I think an appeal will cost £100 :

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50.pdf

 

 

Good luck if you decide to go ahead !

[Planner]

I was under the impression that if you want to appeal a decision in county court, then you have to ask the judges permission on the day after he has given his judgement?

 

You may have missed the boat on this.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex340_0405.pdf

Edited July 7, 2008 by Planner

[billy_79]

I was under the impression that if you want to appeal a decision in county court, then you have to ask the judges permission on the day after he has given his judgement?

 

You may have missed the boat on this.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex340_0405.pdf

 

I can't see anywhere where it says that you must get permission the day after? I have spoken to the court who advise that the form for small claims appeals is N164, and that form talks about 21 days from the judge's decision:

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n164_e0407.pdf

 

I'm sure the tenant hasn't missed the boat because the lady on the court desk said that the appeal process could not begin until written confirmation of the judges decision was received (which happened 8 days after the hearing).

[Planner]

My bad grammer. That would be on the day, after he has given his judgement..... rather than the day after.

 

Maybe my impression was wrong?! Just thought I would add to the speculation.

[Guest Alison82]

Has anything happened since with this claim?

[billy_79]

No, the tenant has given up with it, having lost all faith in the county court system. It was not a large deposit, and the court fees had already taken a significant amount of money. An appeal would have raised the costs even further, with only a small chance of success.

 

A victory for the bent landlord I guess.

[help me kick his butt]

Hi, thats a shame, I am currently suing my LL, we rented one property from 2000 - 2008 then we moved to another of the same LL's properties. So we only paid a top up on the deposit. But our AST states that the full amount of deposit was to be paid into a TDS.

We are waiting for a hearing. I have to say I am so determined that if we lose, I am certainly going to appeal, even just so this forum knows what the next step will be. We are claiming just over £4500, but it really is not the money, its the principle. If you drink and drive you get penialised, if the LL does not pay the deposit into a TDS then they must also be penialised. OOh , dear me, Rant over lol

[anyIdea]

I think in this case, the judge was definitely wrong.

 

According to the Housing act 2004 section 214:

(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—

(a) that the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or

(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

 

Since it was clear that "a tenancy deposit has been paid in connection with a shorthold tenancy" in this case, and there is nothing in the law says that "there can be no claim after a tenancy has ended", the tenant should be able to claim and the judge shouldn't dismiss the case using the reason he/she gave.

[Just4Let]

I agree,

a 'renewal' of an AST ends the original, thus meaning that the deposit should be protected by law.

i'd fight this one to the death because it's the LL's responsibility to place a deposit and not the Tenants duty to remind/ask him to do it.

I can find nothing in any of the Housing Acts where it states that a claim has to be made whilst your still in an agreement, and as was previously stated it's usual in cases like this that a Tenant only finds out a deposit was not protected after they move out and request it back.

[billy_79]

Thinking back, I think the judge's decision was based upon the tenant not chasing up DPS info from the landlord after the 14 days allowed from the start of the tenancy. Therefore, the judge decided that it must have been some kind of entrapment by the tenant, and that it was the tenant's fault for waiting until after the tenancy before raising the issue.

 

I beleive the tenant in question is waiting for a precendent to be set before taking further action, as the costs could easily spiral out of control. Somehow I doubt that a DPS case will ever get to a higher court though.

[Just4Let]

It would if this was me because I'd make sure it did.

 

Definite winner if you ask me.

[MrShed]

Agreed.

[anyIdea]

Hi billy_79,

Do you know the costs of this case (the tenant side, court fee, hearing fee etc.)? Did the defendants ask the tenant to pay their legal costs? Thank you very much.