Getting around s.214 HA 2004

[Resoli]

A few threads have commented that if the landlord protects your deposit outside 14 days but prior to court proceedings, and giving you the certificate of protection, there is no penalty available.

 

What about trying this:

 

Argue to the Court that s.213(6)(a) incorporates (b) because it says "and".

 

Therefore, allowing you to argue that the penalty for non-compliance with s.213(6)(a) includes failure to comply with s.213(6)(b) and so penalties are available from invoking s.214(1)(a), s.214(2)(a) and then getting to the all important s.214(4).

 

Anyone tried this already? Let me know your thoughts.

[qbal]

S.213(6)(a) can't incorporate (b) just because it says "and" at the end. That's why the time limit is in a separate subsection. strictly because that subsection is not included anywhere in section 214.

 

The LL has to give the information, AND has to do it within 14 days. But if he doesnt do that within the time given, and the tenant gets it on day 19 then by your logic they would be able to take the LL to court and get 3 times their deposit back even though their deposit had been protected, albeit the info received a few days late.

 

I think you may find that this is the reason that S. 214 doesn't state "&(b)" in it.

 

But feel free to try it in court if you think it would work. Personally, I wouldn't waste time with it.

[Resoli]

Doesn't that frustrate the purpose of the penalty? If the landlord can protect the deposit late and get away without the penalty what's the point of the penalty? Surely then every landlord might as well not protect a deposit on the off chance that the tenant doesn't take action, and when / if they took action protect it only when proceedings were threatened, they'd escape the penalty? That can't be right....

 

What is the penalty there for? Is it for failure to protect, or failure to provide information that the tenancy deposit is protected? Please clarify by quoting the relevant section.

 

Take my deposit as an example. Given 4th July 2008, certificate of protection provided 14th August 2008, deposit protected 12th August 2008. What section has actually been broken? Because on your logic the deposit is protected and I have a certificate so no relief is available under s.214.

[Planner]

I think the point is being missed that the penalties for non-compliance are not just financial. The second penalty is the removal of the landlords right to use a section 21 notice. So while the penalty for missing the 14 day rule may not be x3 "compensation", it will mean that the landlord has lost the right to use a section 21.

[Resoli]

Yes, that is a penalty agreed, but becomes available once again once the deposit is protected, so I go back to my original point:

 

What true penalty is there if the landlord protects the deposit outside the 14 day period, upon notification of intent to begin legal proceedings, and provides the certificate?

 

Is there one? Again, taking my circumstance, what rights and remedies are available to me?

[Planner]

Yes, that is a penalty agreed, but becomes available once again once the deposit is protected, so I go back to my original point:

 

What true penalty is there if the landlord protects the deposit outside the 14 day period, upon notification of intent to begin legal proceedings, and provides the certificate?

 

Is there one? Again, taking my circumstance, what rights and remedies are available to me?

 

Nope it doesnt. Once the 14 days is missed then a section 21` cannot be served, otherwise what would be the point of the 14 day rule at all.

 

Have a re-read of section 215.

[Resoli]

Planner, that is precisely my point.

 

See s.215(2):

 

" If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with."

 

Once s.213 has been complied with a s.21 notice can be given - i.e. when a certificate is provided you can be served.

 

A different angle perhaps - many of the sections refer to the "initial requirements" but I haven't found a definition of them anywhere.

[Planner]

Yes it is the initial requirements part of it. This must be complied with within 14 days. Again what would be the point of having the 14 day rule and a (b) to 215 unless it was meant for something.

 

The initial requirements are set out in 213 (5) & (6).

[Resoli]

Hi Planner, I absolutely agree that there must be a reason for the 14 day rule and s.215, but problem being there doesn't seem to be a rule that says these papers must be provided within the first 14 days under s.214(2).

 

It really should read:

 

(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,

© is satisfied the deposit is being held in accordance with an authorised scheme at the time of the application, but not within 14 days of recieving the deposit.

 

 

as the case may be.

 

But as it doesn't have a subsection ©, I don't see a penalty for late security of a depsosit prior to the making of an order. I'm struggling to see it.

 

Maybe if people cite the cases that have been won? Court, parties, case number and date. Although there are no precedents at this level, it is a persuasive argument to make.

 

As for intial requirements, s.213(5) and (6) make reference to the intial requirements and the definition of initial requirements in the Act seem to point to the scheme's own requirements but I can't find a definition online. Help appreciated!

[Planner]

Hi hope you find the answer you are looking for.

 

Good luck.

[Steve__M]

Resoli, firstly, the law is badly drawn. It is clear that the law-makers failed to understand it when they described it in Parliament, and it seems apparent that judges hate applying the 3x rule.

 

Whether a landlord is safe or not could depend on which scheme was used:

 

214(2)a states that the 3x fine applies if the "initial requirements" of the scheme have not been complied with.

 

The DPS doesn't appear to have formal "initial requirements", so there is an argument that the landlord is safe if he protects, but protects late.

 

But the TDS has quite strict formal "initial requirements". In the TDS, it is impossible to comply with the scheme's initial requirements after the 14 days because the 14-day rule is part of the scheme's initial requirements, and the contract also has to contain certain clauses.

[Resoli]

Steve, cheers for this. Can you quote the TDS rules? Are they online? I've looked on mydeposits.co.uk and can't find them.

 

That'll be the killer for any landlord using TDS after the 14 day period- if their rules are that tightly drawn.

 

We can help a lot of claimants hopefully!

[Planner]

Steve, cheers for this. Can you quote the TDS rules? Are they online? I've looked on mydeposits.co.uk and can't find them.

 

That'll be the killer for any landlord using TDS after the 14 day period- if their rules are that tightly drawn.

 

We can help a lot of claimants hopefully!

 

And surley that brings you back to your original post? missing the 14 day rule is not one of the reasons a court will award x3 deposit.

[Resoli]

It does bring us back to the original point, because if the initial requirements have not been met then the LA is in breach of s.214(2) and so the penalty becomes available once again - which was my point of opening this thread, to try and find a hole in s.214 and this might be it!

 

So, people might be able to claim the 3x penalty, not for the failure to protect within 14 days but for the failure to comply with the initial requirements.

 

It feels somewhat ironic, doesn't it? Dunno why....

[Resoli]

Found the scheme rules:

 

Section B: Deposit Protection

B1 Deposit Protection Criteria

B1.1 Subject to observance of the Scheme Rules you may protect any Deposits collected from a Tenant/Relevant Party, with Us.

You undertake to obtain protection from Us within 14 days of receiving the Deposit from the Tenant/Relevant Party.

 

Taken from: http://www.mydeposits.co.uk/pdf/mydeposits_Scheme_Rules_for_Landlords_v2.pdf

[Steve__M]

I was actually talking about Tenancy Deposit Scheme which runs under "The Dispute Service" banner as opposed to Tenancy Deposit Solutions Ltd (TDSL). Confusing isn't it.

 

TDS have the 14 day rule in their "initial conditions" and also require certain "Clause G" clauses to be part of the contract. StuzaTheGreat has a thread or two on this because TDS would not arbitrate in his claim because of lack of the relevant clauses.

 

If I realised I'd missed the 14 day deadline I'd go to DPS on the grounds that they don't seem to have any rules.

[MrShed]

Just to add - my reading of HA 2004 would indicate that although the 14 day rule is written in there as a "requirement" to abide by, in reality it is in fact a timescale that the tenant must wait before pursuing breaches in the OTHER requirements, and is IN EFFECT(due to HA 2004 wording) not an enforceable breach on its on merit.

[Planner]

Quite agree Mr. Shed.

 

Heres a recent court ruling on the 14 day issue;

 

http://www.solicitorsjournal.com/story.asp?sectioncode=2&storycode=12900&c=1&eclipse_action=getsession&eclipse_action=getsession