TDS eligibility, implication of breach and legal questions answered

[Adversity]

Are there many success stories regarding tennants sueing their landlord for unprotected deposits? There seem to be many cases but not many have their conclusions. I'm in the process of submitting my court claim on Monday, after several requests for my deposit be returned after thr 3 schemes confirmed they don't hold it. Also what evidence aside from these 3 letters of confirmation and copies of emailed correspondance with my LL(if you can call it that) do I need to submit with my completed n208 form?

[tds_query]

Im taking my LL/Agent to court - doing the paperwork this weekend. I'm also going to include the AST contract (s)to prove the deposit was taken after the introduction of the scheme. So I would include your AST contract too. Good Luck.

[Kentish Lass]

Most of these queries should be posted as specific posts on the forum, not addendums to the sticky!!

[stethomson]

A new service has been launched offering to translate leases from "legal mumbo jumbo" into plain English, and also pointing out legal problems with the lease. It's at Lease Doctor - first aid for your lease, and there are also some free articles and practical lease advice for tenants.

[limbosongs]

I have put my claim into the CC, but in the mean time my former LL has returned my partial deposit.

 

Can I cash it and continue with the case?

[tds_query]

dont accept full payment - under the Housing Act 2004 one of the stipulations if you prove your case, the LL must pay the Remainder of Deposit AND 3 x amount.

 

The Judge could chose to say as the deposit has been paid - he cannot enforce repayment of the deposit. Since he has to do both conditions(re AND), or none. You could lose out.

 

Since it has gone to CC state that you cannot accept any payment as this could now be deemed settlement of the case.

[tds_query]

ps I have initiated CC proceedings against my LL for TDS non compliance, they tried the same trick.

Not long before court now.

[limbosongs]

dont accept full payment - under the Housing Act 2004 one of the stipulations if you prove your case, the LL must pay the Remainder of Deposit AND 3 x amount.

 

The Judge could chose to say as the deposit has been paid - he cannot enforce repayment of the deposit. Since he has to do both conditions(re AND), or none. You could lose out.

 

Since it has gone to CC state that you cannot accept any payment as this could now be deemed settlement of the case.

 

Thanks for the reply

 

Unfortunately my former housemate has already cashed the cheque. Seems like we might need to drop the case.

[tds_query]

hmmm - was that full settlement of the deposit? If so, it may make the case more tricky.

 

However, it may be worth proceeding still, you have legal right to go to court if the LL didnt protect the deposit or give you the prescribed information. From everything Ive heard about legal proceedings is they dont always go as expected, so there is nothing ever definite in all this - I am not a legal expert, but I've a pretty good understanding of TDS. Assuming you had a legal right to initiate court proceedings you could continue, even if its just to reclaim your court fees. You have nothing to lose by continuing.

 

Also - no idea on this - but how long ago was the cheque cashed?

[limbosongs]

It was a partial refund.

 

The cheque was cashed this morning. He was in dire need of the money, especially at this time of the year, which is fair enough.

[tds_query]

If the landlord has not completely refunded ALL the deposit money you are fine. He could owe 1p - wouldnt matter. The fact is some money is still outstanding

 

And complete repayment of the deposit this would not be a guarenteed way for him to avert tds non compliance. I have heard of a judge making that call before (I think on these forums) - but equally a Judge could swing the other way.

[Shortfall Shorthold]

Hi

I'm in a similar situation where my LL has not secured my deposit in a TDS.

 

I have been out of the property for about a month and am trying to get back what I deem to be a fair amount. I paid a deposit of £700 and stated that I would be happy with £600 back for some minor damages that I had caused (they have written confirmation stating my requested figure). They are adamant on only returning £500.

 

They offered me a cheque for £500 in person during the final inspection which I declined and they have since sent me a cheque for the same amount threatening higher labour fees to remedy my damages should I take them to court.

 

It is only through online investigatory work that I have since found out about the TDS scheme and more importantly that they have not protected my deposit in such scheme. I have requested the prescribed information that I was entitled to which they have not been able to provide and they tell me in the most recent correspondence that as I am no longer the tenant the S213/214 does not apply. Is this so?

 

My questions therefore are as follows:

Do I send the cheque back to them to demonstrate my non-acceptance

Do I make claim in the County Court for (£600 + interest x 3) + fees etc - i.e. the £600 that I was originally prepared to accept

OR Do I just make a claim for full amount of £700 + interest x 3 + fees

Do I mention in my claim form that I have received two offers of the same amount that I have declined

No inventory was made and we did not go through a letting agent

 

In relation to the court hearing, I am suing them for not registering with TDS and failure to protect my deposit .... do they then have a right to ask the court to make deductions for the damage, or is failure to register set as being full deposit x 3 regardless of any damage to property. Also, if they are allowed to have deductions for works, am I entitled to have my own quotations and appoint my own chosen contractor to undertake remedial works

 

Sorry for long-winded email and more so if my questions have been answered elsewhere but your advice would be very much appreciated

 

From a majorly Disgruntled Tenant

SS

[Adversity]

Claim for whatever amount you paid as deposit. My understading is all

other deductions are ignored, as the landlord didn't comply with TDS so must pay back the full amount + 3x.

[tds_query]

Hi

I actually won my claim in the end. The LL sollicitor agreed an our of court settlement for £2100 which I accepted. In my case I had left the property in better condition (with evidence) I was a bit put out by his ficticious claims which the agent came up with. In the end they only owed £68. For which they were adamant they were not going to pay. They changed their minds and attempted to pay after I had initiated legal action - which I then declined as it could be viewed as settlement for the claim.

 

The relevent points were:

 

1) There is some ambiguity around what happens if they repay the entire of the deposit before court action is instigated. Because the law requires the remainder of the deposit to be repaid AND 3 times the deposit. It can be viewed that if the remainder of the deposit has been repaid, the judge cannot exact that condition (as there is no deposit outstanding) - and as he must enact both clauses or none - he does not have to order the 3 times deposit.

 

2) Ensure you are be covered by TDS, ie you signed up for a AST (ie for 6 months or more), and this signed for after April 2007.

 

3) I would then accept the £500 (since this is not all the monies), and then send a letter before action for the remainder. If this is not recieved, then instigate legal action for the full amount total deposit + 3 times deposit + legal fees + interest.

 

4) There is probably no guarentee you will get the 3 times - but if you can show the money was supposed to be protected and was not. At the minimum you should win back the remainder of the deposit and get your court fees back. I would say you would have a very good chance at the 3 times - but my understanding - is if it goes to court there are no guarentees no matter how bullet proof your case.

[MrShed]

Hi

 

4) There is probably no guarentee you will get the 3 times - but if you can show the money was supposed to be protected and was not. At the minimum you should win back the remainder of the deposit and get your court fees back. I would say you would have a very good chance at the 3 times - but my understanding - is if it goes to court there are no guarentees no matter how bullet proof your case.

 

I would disagree with this statement.

 

It all depends on the circumstances. However, generally speaking, in a situation where the deposit has neither been returned nor protected by the time of the court case, I would say that it is pretty much guaranteed that you will get the full amount including 3x.

 

If you do not the judge is simply wrong.

 

there are various small areas of dispute in this act, such as if the deposit has already been repaid, etc etc. But if the situation I have outlined above occurs, there is simply no ambiguity in the act.

[Shortfall Shorthold]

Thank you very much for all your responses .... very helpful

 

Can I just clarify your point 4 though .... I've heard that if I "accept" any amount (i.e. £500) and that I seek the remainder, say the £200 scenario, then would the Court only order 3x the £200 value as I have "accepted" the £500 and therefore deposit due becomes £200? Do you know if this is the case?

 

This is why when sending the LBA should I categorically reject their offer and return the cheque and state that I will only accept the £600 out-of-court figure (and nonthing less) otherwise I will be going for the full £700 x 3 + fees etc through the S214 route

 

Thanks again

[MrShed]

Thank you very much for all your responses .... very helpful

 

Can I just clarify your point 4 though .... I've heard that if I "accept" any amount (i.e. £500) and that I seek the remainder, say the £200 scenario, then would the Court only order 3x the £200 value as I have "accepted" the £500 and therefore deposit due becomes £200? Do you know if this is the case?

 

 

Whereever you heard that from needs shooting.

 

Thats absolutely rubbish

[Shortfall Shorthold]

Cool .... LBA being drafted as we speak!

[tds_query]

I would disagree with this statement.

 

It all depends on the circumstances. However, generally speaking, in a situation where the deposit has neither been returned nor protected by the time of the court case, I would say that it is pretty much guaranteed that you will get the full amount including 3x.

 

If you do not the judge is simply wrong.

 

there are various small areas of dispute in this act, such as if the deposit has already been repaid, etc etc. But if the situation I have outlined above occurs, there is simply no ambiguity in the act.

 

Mr Shed - I would agree - but the problem that can arise is if the LL realises and does try and make payment before the court hearing. If it actually gets to court and the LL has offered payment - its not really clear what the outcome should be. In my case. I think when it finally dawned of the LL/LA, the LL first tried repayment, then failing that managed to register the deposit with TDS (ie to show the money was covered by TDS) - it of course made no sense registering a deposit for a tenancy that had expired and I dug out the TDS rules of membership to show this was in breach of their regulations (a LA may be expelled for such a breach). The LL sollicitor then moved on to a different argument, saying that the law does allow interpretation that repayment before court action can mean the three times deposit does not need to be repaid. Although there is some support for this, my counter argument was that if this were true, that would render the addition of this act not only redundent, but actually worsening the situation for tenants - exactly the opposite to what these regulations were introduced for. As disreputable LLs would not protect deposits, not tell tenants about it, if they get caught thay can then can force the tenant into Civil Proceedings (a relatively complex process for a joe bloggs person like me), where the LL can simply escape at the end by repaying the outstanding deposit prior to court action. (if you check out the consultation of secondary legislation you will find that the old process involving tenants instigating small claims action was too lengthy and costly for tenants - so why would they replace it with a larger, longer, more expensive and costly process).

 

Apologies if this is going on a bit - but these were the problems I faced - and it got a bit more challenging when the LLs sollicitor got involved -I hope yours is simpler than mine. Potentially - if you run into some of these issues - at least you know there are some answers. Good luck - and if you need anymore info I'll be happy to post up a redacted copy of some of the material I used for LBA and N208.

 

oh and finally point 4 - the 3 times remainder of the deposit - its 3 times the full deposit (I did investigate this at the time just incase it could be interpretted as 3 times the remainder of the deposit).

There is nothing in the regulations about "remainder" - its the full deposit. If such a thing were intended it would be included in the Act - and it isnt. I believe the act is clear that it is the deposit (ie full deposit) in all cases. When the Judge enacts the law - they may deduct any payments from the final figure.

[MrShed]

I agree with what you say TDS.

 

All I was pointing out is that your statement is incorrect IF the deposit is not repaid or protected by the date of the court hearing.

[asperni]

Hi there, just thought I'd challenge "Planner & MR Shed" at this sinario:

 

We've just been isuued "notice to quit", by LA, given us two months notice because owner wishes to sell property. Already being told, people want to view property this coming Monday.

Paid landlord (through LA) £1675 deposit, which was noted as received in our Shorthold Tenancy Agreement.

 

We moved into the property a year ago, all within time scale for the deposit to be placed into a scheme. Checked with all three scheme's today which show's no deposit being held.

Can I ask you

a: Is this Notice To Quit Valid?

b: If he was to put monies into deposit scheme now could he then issue another notice to quit but would that be the day before the next rent due date (26th of each month), so maybe I could get another month here (not alot of rental accomadation around to suit)?

c. lastly, if I sued for 3 x rent and he didn't pay I would then need to apply for a charging order on his house, but how much time do you think that would take as he's now put it on the market?

 

Many thanks

asperni

[MrShed]

I assume the NTQ is a Section 21 notice?

 

a) Yes it is valid (well, assuming the dates are correct) but it is not enforceable (yet).

b) Due to a, irrelevant.

c) As long as a piece of string - why would you use a charging order, there are better methods of enforcement, such as garnishee or attachment of earnings?

[xoAmyox]

MrShed,

 

Could you clarify for me, in regards to:

 

'b) Landlord has supplied details, but not in the prescribed format'

 

What is meant exactly by the prescribed format?

 

My situation is that my deposit was protected only 2 days before the end of the fixed period on my AST with mydeposits.co.uk. The information was then forwarded to my solicitor, and i've only recieved a photocopy, and not the original document, via my solicitor.

This was recieved by her after the AST had become a periodic tenancy, and my landlord has made several errors on the paperwork (which in addition he hasnt signed, and neither have I).

He has falsified the date on which our tenancy began altered it from 1st Sept 2009 to 1st Jan 2010.

He recieved the deposit in the form of a cheque prior to the tenancy starting on the 1st of Sept, however he only cashed it in Dec, and it left my account on the 26th Dec.

The date he's recorded as the deposit being protected is the 26th Feb.

And I know it may just be silly, but he's also spelt my name wrong.

 

Therefore, could this point apply to me at all, and am I missing anything that could be relevant to a potential case?

 

Many thanks in advance

Amy

[MrShed]

The prescribed format is that which is dictated by the deposit scheme.

[asperni]

Hi there, many thanks for reply.

It is a NTQ S21, but I was told and read that this notice would not be legal if a deposit not being protected? I suppose what you say "is not enforceable" means the same thing?

As to b: I was thinking that if the NTQ was not valid then the landlord would have to wait to put money into a scheme then wait until the next month (day before rent due) to re-issue NTQ but I think you've answered my question?

Then, finally c: the reason I mentioned a charging order is that this particular landlord has moved to Australia, apparently so. Other than this property, only have an address for his parents in Cockfosters. So, thought if he didn't pay (if I sue) I could attach it to the house before it's sold? . Do you have any other suggestions?