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TDS eligibility, implication of breach and legal questions answered


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Not enforceable doesnt mean the same thing.

 

It means that the notice itself is fully valid, but you cannot be evicted with it UNLESS he protects the deposit.

 

If he protects the deposit he does NOT need to serve another notice, he can then enforce the one he has served.

 

Charging order in that scenario is probably the best bet.

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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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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Have a happy and prosperous 2013 by avoiiding Payday loans. If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.Before you decide,consider the users here who have already offered help and support.

Advice offered by Martin3030 is not supported by any legal training or qualification.Members are advised to use the services of fully insured legal professionals when needed.

 

 

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Thanks mike999peters for that information. Just wanted to mention though on MRSHED's comment that a section 21 would be valid. According to my solicitor today he said not. He would have to issue a new NTQ on the day before the rent due and obviously if the deposit was protected. Interesting, as we have a bit more time now

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Yes, your solicitor is in fact correct - I had misremembered that element, section 215 of the housing act is in fact quite clear on it. Apologies.

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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Funny enough the estate agent rang me yesterday to tell me they'd had a word with the landlord and he will be putting the deposit into a scheme straight away...can see that would have been a bit of a problem with them reaching their sales targets for the month? They will now issue NTQ at the end of April. The landlord didn't do an inventory for this property (I have a few issues with the white carpet he has on the stairs!). Am I right is saying that he's still broken the law (not compiling with the 14 day's thing) but now I can't really sue because he's put into a TDS (waiting for confirmation)? Also, the landlord is living Australia but on the contract has his name with an address in London. Surely, this is wrong? I've heard if he lives out of the country he should have someone else managing the property that lives in the UK? Can someone correct me?

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  • 2 months later...

Hi - I have a question about eligibility.

If I only signed an undated memorandum to extend an AST (which had the names of 2 other people but not mine on it), is my deposit protected by TDS?

 

The letting agent did submit the deposit to the scheme but TDS now says it is unenforcable because of the above - did the agent breach the rules?

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  • 2 weeks later...

Hi All,

 

This may take a whoile to explain and I'm not sure if you'll be able to help but I thought it was worth a try.

 

Basically I rented a flat with a friend, starting in Feb 2008 on a 6 month contract. After 5 months we had a letter addressed to the "current occupiers" which was from a Bailifs stating that they would coming to enter the property on the following Tuesday (this was the Friday.) We did some investigating and were told by Citizens Advice to move our possessions out. The landlord assured us that everything had been sorted but we had a few odd conversations with various people so decided to leave the flat. We tidied and cleaned and it was probably cleaner than when we moved in. We wrote to the Landlord explaining our reasons why we left at month 5 of a 6 month contract and he assured us that we would get our deposit back. But we never did.

 

We filed with the Small Claims Court but nothing really happened with that and from what I can gather the case was closed as we didn't provide the correct evidence. As you can imagine, with work and trying to find a new place to live, this was a busy time in my life and so I didn't have the time to commit to doing everything.

 

From what I can remember we only claimed for the bond and nothing else, but I don't believe that the Landlord put the money in a TDS and therefore I am wondering if we can claim anything for that, as he was breaking the law.

 

I'd really appreciate some advice. I know this was a while back and perhaps I have left it too late but I've only really had the time to think about it now.

 

Many thanks

 

Simon

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  • 3 months later...
  • 1 month later...
Is it possible to claim against a landlord for 3x the deposit if the landlord did not use a deposit scheme for the duration of the tenancy but the tenants only discovered this after moving out and the deposit has been repaid in full?

 

In a word no.

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I beg to differ, Planner.

 

In order to enforce the x3 penalty, the court must order the person 'who appears to be holding the deposit' to either return the deposit, or protect it. Then the court must ALSO, order the penalty of 3x the deposit as compensation.

 

In this case there is no person that appears to be holding the deposit as it has already been returned.

The court cannot order its return, and they cannot order it to be protected once the tenancy has ended.

Therefore they cannot then ALSO, order the 3x penalty.

 

I'd be glad to be corrected on these points, and many judges are not well versed with the legislation so may see it differently. But this interpretation seems to be the most common from cases I have seen, and was the advice to me by my solicitor when bringing a claim against my ex-LL.

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I beg to differ, Planner.

 

In order to enforce the x3 penalty, the court must order the person 'who appears to be holding the deposit' to either return the deposit, or protect it. Then the court must ALSO, order the penalty of 3x the deposit as compensation.

 

In this case there is no person that appears to be holding the deposit as it has already been returned.

The court cannot order its return, and they cannot order it to be protected once the tenancy has ended.

Therefore they cannot then ALSO, order the 3x penalty.

 

I'd be glad to be corrected on these points, and many judges are not well versed with the legislation so may see it differently. But this interpretation seems to be the most common from cases I have seen, and was the advice to me by my solicitor when bringing a claim against my ex-LL.

 

Whooopsie! Will teach me to read posts fully!!

 

Apoligies limbosongs

 

Sorry Notch you cant claim.

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  • 2 weeks later...

I'm in a similar situation - any advice appreciated!

 

We moved out of our old flat in Feb 2010. Landlord never protected the deposit, and didn't pay it back. We threatened legal action and eventually submitted N208 in July. We stated in our letter before action that we would from then on not accept the repayment of only the deposit as full and final settlement.

 

Our hearing (having been adjourned twice) is on Wednesday 17 Nov. We've just had our share of the deposit paid into each of our bank accounts. Does this mean that the landlord is no longer "the person who appears to be holding the deposit", or have we effectively refused this payment in advance because of our letter before action?

 

Of course we're still out of pocket with court fees and interest, but it would be nice to pin this landlord with a judgement to show him he can't steal thousands of pounds from his tenants...

 

Thanks in advance for any help!

Chris

 

Edit: forgot that I posted details of my case here before. Click on my username (I can't add links to my post) and the thread will pop up...

Edited by chillcoat
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We won! Had our hearing this afternoon. The landlord didn't turn up, but the judge accepted our case and awarded us our full claim:

 

- return of the deposit

- interest on the deposit from start of tenancy + 10 days until now

- three times the deposit

- court fees

 

The issue I mentioned above about the cheques was OK in the end. The cheques will only clear tomorrow so we haven't definitely received anything yet. The judge did mention that had the landlord protected the deposit before the court case he would have won.

 

The landlord may apply to have the judgement set aside but we'll know in the next couple of weeks. Thanks everyone for your advice and help!

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  • 4 months later...

Addendum

 

Also read this thread:-

 

Tenancy Deposit Protection - First High Court Decision:

http://www.consumeractiongroup.co.uk/forum/showthread.php?247112-Re-Tenancy-Deposit-Protection-First-High-Court-Decision

 

That important decision drives a coach and horses through the intention of the Act, by removing all financial penalties for late protection of the tenant's deposit (provided it has been protected before the case comes before a court).

 

 

 

 

 

 

Note:

Due to unforeseen circumstances, I am no longer an active member of this Board and regret that I currently can't assist on a personal basis, so no PM's please.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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  • 2 weeks later...

Chillcoat....how are you getting on with receiving the money owed from your LL? Has it been paid? Have the requsted a set aside? I have a similar case goin on atm and would love to hear ho ur getting on!

All advice is based on my experiences. I am NOT qualified and as such cannot be held responsible for any mistakes. If in doubt...get professional help.

If you like what i have said then make me a star!!

Some helpful links

I have been successful in many cases..here are links to some

Housing Act and deposits: http://www.consumeractiongroup.co.uk/forum/showthread.php?266260-Deposit-being-withheld.-Please-advise&highlight=

Against Natwest: http://www.consumeractiongroup.co.uk/forum/showthread.php?278646-N-west-v-Mrsfoot-s-Son.-***WON_ALL-CHARGES-REFUNDED***&highlight=

Against Swift Advances: http://www.consumeractiongroup.co.uk/forum/showthread.php?46576-Me-V-Swift&highlight=

Against B&Q: http://www.consumeractiongroup.co.uk/forum/showthread.php?172878-Me-vs-B-amp-Q&highlight=

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Mrs Foot, poster chillcoat continued his own problem in this thread -

 

Deposit claim after end of tenancy

 

 

For convenience, I think this is the part of that thread which you need -

 

We won! Had our hearing this afternoon. The landlord didn't turn up, but the judge accepted our case and awarded us our full claim:

 

- return of the deposit

- interest on the deposit from start of tenancy + 10 days until now

- three times the deposit

- court fees

 

The landlord's defence was to have paid a cheque into our bank account last Friday - but it didn't clear in time so we went ahead anyway. I'd recommend this to others in the same situation. Beware though, as if your landlord protects the deposit, even after the end of the tenancy, then you're likely to lose your case for compensation.

 

Seemingly, therefore, the courts will refuse to award the compensation element of three times the amount of the deposit if the deposit has been protected by the time of the court hearing, but will award that compensation if the deposit has been repaid to the tenant!

 

 

Also from that last-mentioned thread -

 

Keep your eyes on the forums/news/blogs as there is a case in the High Court on the 9th February to get clarification on the "protecting deposits after the end of the tenancy" point.

 

It is listed as Potts vs Densley

 

Judgement in that case has been reserved, i.e. it will not be given for several weeks: http://blog.painsmith.co.uk/2011/02/09/potts-%E2%80%93v-densley-pays-update/

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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Mrs Foot, poster chillcoat continued his own problem in this thread -

 

Deposit claim after end of tenancy

 

 

 

 

 

Seemingly, therefore, the courts will refuse to award the compensation element of three times the amount of the deposit if the deposit has been protected by the time of the court hearing, but will award that compensation if the deposit has been repaid to the tenant!

 

 

 

 

I disagree, this is a county court case, it is not binding on any other court or judge, and therefore no assumptions at all can be made that might help others. I am very pleased that Mrs Foot has won, however I think the case was dependent on the cheque not being cleared by the time of the hearing. Uncleared funds do not count as paid in the courts eyes.

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I expect this issue to be resolved by the High Court decision in Potts vs Densley, when the reserved judgement is given shortly.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

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I disagree, this is a county court case, it is not binding on any other court or judge, and therefore no assumptions at all can be made that might help others. I am very pleased that Mrs Foot has won, however I think the case was dependent on the cheque not being cleared by the time of the hearing. Uncleared funds do not count as paid in the courts eyes.

 

Amy I think you mean Chillcoat as my case is slightly different. Although I have won my case the problem is the LA doesnt want to pay the court order!! We are now having a set aside hearing...which I have very little doubt I will lose as LA continues to fail to comply with HA or Prescribed Information Order. I also beleive (or hope is probably more accurate) that by the time our hearing comes round Potts vs Densley judgement will have been passed down and found that it is no defence if the LL / LA places the deposit into a scheme before the court hearing but after the tenancy has ended....and news from a person who is involved in this, says that will be the judgement!

All advice is based on my experiences. I am NOT qualified and as such cannot be held responsible for any mistakes. If in doubt...get professional help.

If you like what i have said then make me a star!!

Some helpful links

I have been successful in many cases..here are links to some

Housing Act and deposits: http://www.consumeractiongroup.co.uk/forum/showthread.php?266260-Deposit-being-withheld.-Please-advise&highlight=

Against Natwest: http://www.consumeractiongroup.co.uk/forum/showthread.php?278646-N-west-v-Mrsfoot-s-Son.-***WON_ALL-CHARGES-REFUNDED***&highlight=

Against Swift Advances: http://www.consumeractiongroup.co.uk/forum/showthread.php?46576-Me-V-Swift&highlight=

Against B&Q: http://www.consumeractiongroup.co.uk/forum/showthread.php?172878-Me-vs-B-amp-Q&highlight=

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