TDS non compliance - suing Landlord

[MrShed]

You will be issued with a CCJ, but there is NO RECORD of it kept at all as long as it is paid immediately. This also obviously wont take effect unless you lost the counterclaim, which I cant see happening personally...

[lefont]

I am hand delivering my Part 8 claim on Monday to my local court accompanied with cheque for £150.

 

What should I include with the Part 8 claim?

 

Tennancy agreement copy?

All correspondance between me and LL asking for TDS number etc after moving out though she highlights damage to flat?

Emails for the TDS schemes confirming deposits not protected?

 

Anything else? Am i right in thinking i should send a copy of all documents i will give to the court to my ex LL?

[help me kick his butt]

Hi lefont, how is this case going?

[lefont]

Hi,

 

Funny enough I received a response from the court today having filed a Part 8 claim as per the advice and help on these forums. I am rather baffled by the courts response.

 

"Upon the courts own motion. The court has made this order of its own initiative without a hearing. If you object to the order, you must make an application to have it set aside, varied or stayed within 7 days of receiving it.

 

Upon referral of this matter to the District Judge

 

IT IS ORDERED THAT

 

All parties to file and serve Allocation Questionnaire within 21 days of service of this order together with draft directions agreed if possible in the attached form."

 

A fee of £200 is payable by the claimant on the filing of their allocation questionnaire. The defendant has filed a defence, a copy is enclosed with this notice (nothing was included though other than the questionnaire!?)

 

--------------------------

 

Any advice on this as it appears I have to pay £200 and go down a route that I have not read about anywhere on these forums or on the web based on a part 8 claim. I don't have legal representation and only have the 7 days to respond if i am to have it set aside, varied or stayed.

[help me kick his butt]

Gosh, I dont know, I find it all equally baffling!!!

Can you phone the court and ask them what this means.

Im seeing a solicitor this afternoon, re my TDS case. If I get time at the end of my consultation, I will ask for you.

Im sure someone far more knowledgable will be along soon to give you some advice.

[anyIdea]

Allocation Questionnaire doesn't apply to part 8 claims. In the civil procedure rules 8.9© "the claim shall be treated as allocated to the multi-track and therefore Part 26 does not apply". However, in the civil procedure rules 8.1(3): "The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate."

 

Maybe the judge decided to change the claim from part 8 to part 7. Or simply the judge made a mistake.

 

I agree with help me kick his butt, you'd better call the court to make it clear.

[lefont]

I have spoken to the court and my employer's solicitor. The court has promised to post me the defendant's evidence as they failed to include it in the request to complete the allocation questionnaire. Having spoken to a solicitor they strongly thought the correct way was to go via the Part 7 route and not Part 8 which I filed, therefore they thought the judge most likely ordered it take the Part 7/N1 route (therefore requiring an allocation questionnaire). I asked the court if this was the case but told me I had to write to the judge as they could not comment.

 

The allocation questionnaire provided is an N151 which the solicitor told me was the wrong one for claiming a fixed sum as an N151 allows the judge to award monies as they see fit. I put in a fixed claim of 3 x deposit plus original deposit therefore should have been sent a N149 which is a fixed claim amount. As a result the allocation questionnaire for N151 costs £200 as it's not a fixed sum claim under N149 where the cost is £35.

 

With the cost of filing a hearing £150, allocation questionnaire currently going to cost £200 and a hearing fee £300 I am seriously considering dropping this claim as that's £650 in costs I could potentially lose which i simply cannot afford.

[Planner]

The courts own guidance on TDS claims is that they should be dealt with via Part 8;

 

 

www.hmcourts-service.gov.uk/docs/infoabout/housing/section-214-application.doc

Include this in any correspondance with the judge.

[lefont]

My case is still ongoing but has recently substantially progressed. Having questioned the judge on why it was not being treated by a part 8 claim and experiencing some quite frankly shocking administration by clerks (not having a clue about anything and given different messages by different people)....

 

I have received a letter stating that the judge has concluded the defendant has no defence to the claimants claim (after the defendant wrote an 8 page letter highlighting supposed damage and stress caused to their life, fatally admitting to not putting the money into the scheme). Unless the defendant puts in a counter claim within 7 days and pay the court fees, for the alleged damage, for which they have no receipts the judge will make an order against them. I am really glad I stuck to my insticts and the encouragement I received on here. Whilst nothing is a given yet, I am hopeful I will win the case but guess only time will tell. I anticipate a counter claim which will only complicate things....

[help me kick his butt]

Wow, how did you get the judge to keep it a Part 8? Did you just write a letter to the court manager?

[lefont]

Well I am pretty sure it is a Part 8 claim now as I originally filed, but as I said the court admin has not been good! Having written to the judge the message given back to me was that I no longer needed to file an allocation questionnaire. The legal advice I was given was that Part 8 claims were not subject to allocation questionnaires. The case must be pretty clear cut if the judge has decided there is no defence without even going to a hearing.

[Neo]

lefont, great read.

 

I hope things re going well.

 

I am in a similar situation. Is there any chance we can see your particulars of claim?

 

Also, is it only me, but I have moved out of my rented flat and same old story - landlord said it needed cleaning. So I checked things out and tried to contest it only to find they hadn't protected the deposit. I have sent an LBA giving 14 days.

 

All this talk about the landlord protecting the deposit after the tenancy and before the application date/court case is rubbish is it not?

 

If i can get proof in writing - which will be here in the next 2 days, from all three Deposit Protection Schemes that it was not lodged with them, then this means it was impossible that the landlord could even provide me with the prescribed infromation in the 14 days he/she should have done by law, which is a closed case for the compensation claim?

 

Thanks, Neo

[Esio Trot]

All this talk about the landlord protecting the deposit after the tenancy and before the application date/court case is rubbish is it not?

Rubbish or not, this aspect is one where the legislation, as written, is shown to be poorly drafted (from a tenant point of view).

 

It's a great get out for landlords, and if they can protect late and then use the fact that it is protected now as a defence normally means that they can avoid having to refund the tenants court fee as well.

 

In litigation, as in horse racing, there is no such thing as a sure bet. On a share dealing site I use, it says only buy shares with money you can afford to lose. I would say that this also applies to litigation.

[Neo]

I agree...

 

Do you know if the court will award the mandatory compensation award to the Tenant based solely on the fact that the landlord didn't provid ethe tenant with the information within the 14 days? In fact if the landlord never provided the information? He couldn't because he never protected it.

 

I am annoyed that there is a get out of jail card.

 

Finding a solicitor to help with the Housing Act is impossible!

[Neo]

Someone correct me if I am wrong but based on what i am thinking, and I will discuss below, there is no way out for a landlord if he tries to register a deposit after the tenenacy and before the court date - i.e. no 'get out of jail' card assuming the argument is presented in court correctly.

 

Ok, first of all, s.214(2) of the Housing Act 2004, states:

 

"Subsections (3) and (4) apply if on such an application the court—

(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or.."

 

 

In particular, "is satisfied that those requirements have not... been complied with..." is very important. I believe this line is referring to the requirements in s.213(1)(a)&(b), which states:

 

 

"(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."

 

 

In summary, s.214(2)(a) says that for the 3 x deposit compensation rule to apply, then the court must be satisfied that the requirements, i.e. s.213(4) - "For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit." ) have not been adhered to, which they haven't because they never used a DPS or informed the tenant within 14 days from when they 'received such a deposit'.

 

 

 

I'm not a legal expert, but this is what I believe will stop the landlord being able to use his/her so called 'get out of jail' card. Opinions on this much appreciated.

 

 

 

Neo

[help me kick his butt]

Hi Neo, I agree, finding a solicitor with the HA is near impossible. I found alitigation lawyer that is very knowledgable on this, and if they dont know straight away, they sure find out by the time you have the appointment.

I think you will find none of the 3 deposit schems will protect a deposit once the tenancy has ended. Sounds to me like you have a good case. £150 is not too much to lose if you have the chance to triple your deposit x

Best of luck, keep us posted

[help me kick his butt]

Hi Neo, think its a good idea if you start a thread, then we can all keep up to date on it x

[lefont]

To give an update...

 

The landlord admitted in writing to me they did not protect the deposit as there was a verbal agreement in place between them and I at the stat apparently (it was never mentioned). The LL has counter claimed more than the original deposit for damage and I am getting legal advise on my response.

 

A 20 minute hearing is planned for late January with a Judge. In the end I had to fill in an allocation questionnaire for £150 which was a rip off but allowed the case to continue.

[help me kick his butt]

Hi Lefont, If you claim is under £5000 you should have had to fill out the allocation questionaire( cant remember the form code) but it should have only cost £35.

Every court seems to send out the form that is the most expensive, until you question it, then they send the correct one out.

 

Verbal agreement, my a**e, the judge will see straight through that. Your LL was obliged by laaw to protect your deposit, I would sit tight and look forward to a very fruitful January x

[anyIdea]

I wouldn't be so optimistic. If you had to pay the unnecessary allocation questionnaire, what else cannot happen? Think about the cases lost. Don't assume the judge is wise and knowledgeable, prepare your hearing as if the judge is on your LL's side and totally ignorant. You must show to the judge that you must be right and if he lets the LL win, he is against the law himself. Don't take anything for granted until you get the money.

[help me kick his butt]

Fair comment, anyIdea, lets all cross our fingers and hope the judge does the right thingand fines the LL like the legislation states that he should.

Sometimes a little optimism peps you up a bit and helps you to see a light at the end of the tunnel x

[lefont]

My hearing is a 20 minute "directions hearing" if that changes anything. Having dealt with court admin, you get told a totally different story/policy every time I called or visited in person. It was apparent in almost all circumstances the admin was totally incompetent, let's hope the judge does not fall into the same category.

 

I am going to present my case pretty much as per the Housing Act section 214 below:

 

Housing Act 2004 – Section 214

 

Proceedings relating to tenancy deposits

(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.

(2)

Subsections (3) and (4) apply if on such an application the court—

(a)

is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b)

is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(3)

The court must, as it thinks fit, either—

(a)

order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b)

order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4)

The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

(5)

Where any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), the property in question is recoverable from the person holding it by the person by whom it was given as a deposit.

(6)

In subsection (5) “deposit” has the meaning given by section 213(8).

[pursueingjustice]

My hearing is a 20 minute "directions hearing" if that changes anything. Having dealt with court admin, you get told a totally different story/policy every time I called or visited in person. It was apparent in almost all circumstances the admin was totally incompetent, let's hope the judge does not fall into the same category.

 

I am going to present my case pretty much as per the Housing Act section 214 below:

 

Housing Act 2004 – Section 214

 

Proceedings relating to tenancy deposits

(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.

(2)

Subsections (3) and (4) apply if on such an application the court—

(a)

is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b)

is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(3)

The court must, as it thinks fit, either—

(a)

order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b)

order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4)

The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

(5)

Where any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), the property in question is recoverable from the person holding it by the person by whom it was given as a deposit.

(6)

In subsection (5) “deposit” has the meaning given by section 213(8).

 

I know this is 3 years ago now but what was the outcome of your case? Same thing is happeing to me and I'm debating whether or not to attempt a court scenario.

[mariner51]

Start your own thread PJ with details. A lot of T law has changed in last 3 years and will change again as the Localism Act takes effect next yeaR.

[pursueingjustice]

Hi all! Just to keep you all informed, although it's been a long time coming, I am going to issue my claim agains the landlord with the papers this month sometime! I'll let u all know if your help has aided the claim!