Help with TDS Claim

[Gaskie]

Hi all,

 

This is a bit long winded, so please bear with me. I shall try to give you all the information I can so that you can offer me the best advice.

 

I moved to a new area for a new job on the 16th of August with my family. We rented a lovely apartment in Newcastle for £850. On the day of moving in we paid £850 for rent in advance, £850 deposit, and £499.38 agency fees. This property was taken on a 6 month contract.

 

Within a few weeks problems had already begun with one of our neighbours being a complete busybody and interfering constantly in our business to the point where we felt uncomfortable living in the property and decided we had to move. I informed the landlord that we would be moving out and asked if he would consider relieving us of the rent payments, but he refused (quite rightly, I would have done the same). I agreed to continue paying rent on this property and continued with our plans to move out.

 

We found a great new house a few miles away and proceeded to rent that on top of the flat we are still paying for (I have no real issues with affording both, although I don't really want to, obviously).

 

My girlfriend has recently found out that the landlord has neither put our money in a scheme, or had any plans to, and so we have decided to make him an offer. I have already paid rent on the property up until the 16th of November, and he has our months deposit. This means that 4 of the 6 months are covered so we offered not to pursue him through the courts for 3 x the deposit, if he agreed to write us a letter absolving us of responsibility for the rent.

 

He has now turned around and tried to say that the £850 given to him (the deposit) was in fact a months rent in advance despite the fact we paid £1700 in rent and deposit the day we moved in, and he will not be accepting our offer.

 

As of now, I have cancelled my standing order for payment of rent, and will attempt to pursue the landlord through the courts to try and recover the deposit + 3x the amount.

 

Can anyone give me some advice on exactly what I do from here, or if I even have a chance of this working out?

 

Thank you all in advance,

 

James.

 

 

Edited to add - When I spoke to the landlord to inform him we were moving out, he agreed to put the property up for let and sale again, and once someone was ready to take over the property, we would be clear of our tenancy agreement. The condition of this, was that I would pay the £500 "finders fee" to the Estate Agent, which at the time I agreed to as it was obviously cheaper than continuing to pay rent on a property we no longer lived in. The property has been on the market for 8 weeks now and has not had a single viewing. The two property descriptions on right move are vastly different, the sale side has a wealth of information, and the rental side only provides very basic information, which if I were looking to let the flat, I would not find sufficient and would immediately move on to the next property.

Edited October 31, 2008 by Gaskie
Minor addition.

[Planner]

I would imagine that the landlord will now sue you for the outstanding rent (now that the standing order has been cancelled). If you still have access to the flat (not sure if you do - you should if your still paying rent), he will also likley bring eviciton proceedings against you when you are two months in arrears. He is likley to add the cost of evicting you to rent arrears claim. You will of course have an opotunity to counter claim at this point, but I dont think any jusge is going to look favourably upon you.

 

If you have a read of the cases discussed on here, yo will see that the common theme seems to be that if the landlord protectes the deposit before the TDS claim comes to court, then the x3 compensation wont be awarded.

 

You have tried to link the issue with the depsoit as a reason for not paying the rent, this wont wash with the court imho.

[Gaskie]

I would imagine that the landlord will now sue you for the outstanding rent (now that the standing order has been cancelled). If you still have access to the flat (not sure if you do - you should if your still paying rent), he will also likley bring eviciton proceedings against you when you are two months in arrears. He is likley to add the cost of evicting you to rent arrears claim. You will of course have an opotunity to counter claim at this point, but I dont think any jusge is going to look favourably upon you.

 

If you have a read of the cases discussed on here, yo will see that the common theme seems to be that if the landlord protectes the deposit before the TDS claim comes to court, then the x3 compensation wont be awarded.

 

You have tried to link the issue with the depsoit as a reason for not paying the rent, this wont wash with the court imho.

 

 

 

I am more than happy to continue paying rent if I need to, as I said I've already paid up until the 16th of November so the fact that I have cancelled the SO is largely irrelevant until the 16th of Nov when the next payment is due. I am happy to restart it if needed. I read somewhere that the landlord is unable to counter sue us for rent owed, and is also not allowed to evict us or re-let the property while court proceedings are ongoing, is this incorrect?

 

Regardless of the fact I don't want to continue paying rent, the fact remains that he does not have our deposit in a scheme and even though we told him this 3 days ago he has made no moves towards putting it in one.

 

 

Edited to say - I actually haven't done a thing wrong yet. I have paid all my rent, my deposits, my fees, my bills, everything is in order and I am fully compliant. In order for me to get 2 months in arrears, it would take over 3 months.

Edited October 31, 2008 by Gaskie

[Steve__M]

Proceed with the court claim for deposit protection while continuing to pay the rent would seem to be the solution.

[Planner]

I am more than happy to continue paying rent if I need to, as I said I've already paid up until the 16th of November so the fact that I have cancelled the SO is largely irrelevant until the 16th of Nov when the next payment is due. I am happy to restart it if needed. I read somewhere that the landlord is unable to counter sue us for rent owed, and is also not allowed to evict us or re-let the property while court proceedings are ongoing, is this incorrect? No. The landlord will have the right to evict you for none payment of rent. I would reinstate the S/O to avoid this.

 

Regardless of the fact I don't want to continue paying rent, the fact remains that he does not have our deposit in a scheme and even though we told him this 3 days ago he has made no moves towards putting it in one. Then you must sue for none compliance. As previously stated, if he then subsequently protects it before the case comes to court, you are likley to loose.

 

 

Edited to say - I actually haven't done a thing wrong yet. I have paid all my rent, my deposits, my fees, my bills, everything is in order and I am fully compliant. In order for me to get 2 months in arrears, it would take over 3 months. For you to be 2 months in arears would actually only take 1 missed rent payment + 1 day.

 

Good luck. There are plenty of good threads and suggested wording for TDS claims on here.

[Gaskie]

Thank you, Planner.

 

I have read differing opinions on whether the claim for 3x deposit will be successful if the landlord puts the money in a scheme before it gets to court. Mr Pipps made some extremely good points in the TDS sticky, but do we have evidence that tennants are losing cases like this?

 

Yet another edit - Can anyone advise exactly how I start proceedings against the landlord? I have no idea how to start at all. Do I need to send him a letter before starting legal proceedings? Should I seek legal advice before doing anything else?

[Planner]

A good start is;

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/126261-tds-court-claims-wording.html?highlight=possible+tds+sticky%3F

 

Which will help you fill in the N208 claim form.

[Steve__M]

To correct a misunderstanding, the landlord may not issue a valid Section 21 notice to end a tenancy while the deposit is protected, but can use Section 8 to evict for non-payment/contract breach etc.

[Gaskie]

To correct a misunderstanding, the landlord may not issue a valid Section 21 notice to end a tenancy while the deposit is protected, but can use Section 8 to evict for non-payment/contract breach etc.

 

 

That's fine, he can evict me all he likes since we aren't living in the property anymore and it is lying empty.

[Just4Let]

To correct a misunderstanding, the landlord may not issue a valid Section 21 notice to end a tenancy while the deposit is protected, but can use Section 8 to evict for non-payment/contract breach etc.

 

I have to ask Steve M for clarification of his point above that I have highlighted.

 

I have the feeling Steve actually means quite the opposite of this.

[Gaskie]

Hi all,

 

I have been thinking about this situation all day today, and I have come up with something that I believe is a win win situation for me.

 

The problem I have is that as soon as the landlord seeks legal advice, most likely on Monday, they will tell him to immediately put the deposit in to a scheme. If this happens, there is a high chance I won't get anything from my claim.

 

My idea, is to speak to the landlord this weekend and offer to pay him the remaining 2 months rent owed (I've already paid 3, and he has one months deposit which he can obviously keep, the flat is in better condition than I took it, something he would agree with) on the condition that if the flat is let before my tenancy would be over, he will repay me the balance owed. This would then effectively end my tenancy agreement. Once the tenancy is over, he can no longer put the deposit in to a scheme and I will be free to start legal proceedings without the fear that the deposit will get put in to a scheme, therefore almost guaranteeing that I will be able to recover the deposit x 3.

 

I do think the landlord would agree to my request, after all it's essentially what we have already agreed just that this way he gets his rent in full, guaranteed.

 

Please let me know what you think of this, and whether you think this would work.

 

Thanks

 

James.

[Just4Let]

"he will repay me the balance owed"

I haven't laughed so much in ages.

 

I like your style James, but I'm unsure.

 

You go for it though and let us know how you get on.

[Gaskie]

"he will repay me the balance owed"

 

I haven't laughed so much in ages.

 

I like your style James, but I'm unsure.

 

You go for it though and let us know how you get on.

 

 

It may sound cheeky, but that is exactly the agreement we (verbally) already have in place, but it involves me still making monthly rent payments which I'm assuming he is not confident of receiving. This way, he gets all his money up front and only has to repay me IF (and it's a big if with Christmas so close, and the flat not getting a single viewing in 8 weeks) it gets re-let.

 

Let's assume for one minute that he does accept, does the rest of my idea make sense, and would it have a good chance of working?

[Just4Let]

Firstly I doubt he'll EVER repay anything even if he lets it tomorrow, and that's just my opinion.

 

I'd give it a whirl, what have you got to lose?

[Gaskie]

Firstly I doubt he'll EVER repay anything even if he lets it tomorrow, and that's just my opinion.

 

I'd give it a whirl, what have you got to lose?

 

 

Ok then, let's assume he won't repay anything, and has no intention to. If I settle the balance of the tenancy, and get a signed letter saying as much, will I then be able to make a claim safe in the assumption that he can no longer put a deposit in to a scheme?

[Just4Let]

You should be able to but there was a story of a judge striking a claim because a Tenancy had ended. Can't for the life of me understand why this happened but it did so you have to be careful.

[Steve__M]

I have to ask Steve M for clarification of his point above that I have highlighted.

 

I have the feeling Steve actually means quite the opposite of this.

 

Yes I meant the opposite

[Esio Trot]

Once the tenancy is over, he can no longer put the deposit in to a scheme and I will be free to start legal proceedings without the fear that the deposit will get put in to a scheme, therefore almost guaranteeing that I will be able to recover the deposit x 3.

You should be able to but there was a story of a judge striking a claim because a Tenancy had ended. Can't for the life of me understand why this happened but it did so you have to be careful.

It happened because the legislation refers to a "tenant" being entitled to start an action for non-protection of deposits. Once a tenancy is ended, then a tenant is de-facto no longer a tenant, therefore loses the entitlement to start an action.

Edited November 2, 2008 by Esio Trot

[help me kick his butt]

Hi, I am no longer a tenant and I am in the process of suing my ex landlord for 3x deposit.

If I left the property in a real mess, I bet I would still be the tenant then ay? The Landlord would sue me as the tenant wouldnt he? I'm not sure this argument will stand up in court, but I'm going to have a bloody good try!!

[Esio Trot]

Hi, I am no longer a tenant and I am in the process of suing my ex landlord for 3x deposit.

If I left the property in a real mess, I bet I would still be the tenant then ay? The Landlord would sue me as the tenant wouldn't he? I'm not sure this argument will stand up in court, but I'm going to have a bloody good try!!

And you may well be successful.

 

It matters not a jot what you or I think, or how fair the law is. It rests with whatever the judge thinks on the day.

 

Sadly, to my knowledge, no DPS case has yet been appealed to a higher court. Thus there is no precedent for this aspect or others where the legislation appears to be poorly drafted.

[help me kick his butt]

Yes, I agree with everything you say Esio. Seems to me that HA2004 s213 needs rewriting so there is no such ambiguity. Would save us all aload of greif then:)

[Gaskie]

Morning all,

 

My situation has changed somewhat now. I have decided to keep myself squeaky clean as a tenant, and reinstate my rent payments immediately. None have been missed, my next payment isn't due until the 16th.

 

I received a letter from my landlords solicitor on Saturday morning, stating quite clearly that in fact the extra £850 that the landlord holds is actually payment of rent in advance, and will be used to pay any shortcoming in rent. Apparently it's not a deposit at all! I have a signed contract, and a signed letter stating that my landlord holds my £850 deposit, so quite clearly, it IS a deposit. I pay my rent a month in advance every month, and on the first day of tenancy I paid £1700, for rent and deposit.

 

The other thing which I guess doesn't look great for the landlord is that he did not perform an inventory of the property when we moved in. Despite this I went to great lengths to ensure the carpets were spotless, the place was cleaned professionally etc. I'm hoping this should make me look good if it were to come to court. He also has another tennant directly above my old apartment, whose deposit will not be in a scheme either.

 

So, what do I do now? He's meeting his solicitor on Wednesday, and I think I'd like to start court proceedings against him. I understand I need to write him a letter before I can do this, but can anyone tell me exactly what I should be writing to him? What do I say to him apart from "I'm going to sue you for not having my deposit in a scheme within 14 days".

 

Do I need to seek legal advice as soon as possible? Anyone know a good place in Newcastle?

 

Damn, I'm so confused, this could be extremely expensive if it all goes wrong. :-?

[Planner]

Morning all,

 

My situation has changed somewhat now. I have decided to keep myself squeaky clean as a tenant, and reinstate my rent payments immediately. None have been missed, my next payment isn't due until the 16th.

 

I received a letter from my landlords solicitor on Saturday morning, stating quite clearly that in fact the extra £850 that the landlord holds is actually payment of rent in advance, and will be used to pay any shortcoming in rent. Apparently it's not a deposit at all! I have a signed contract, and a signed letter stating that my landlord holds my £850 deposit, so quite clearly, it IS a deposit. I pay my rent a month in advance every month, and on the first day of tenancy I paid £1700, for rent and deposit.

 

The other thing which I guess doesn't look great for the landlord is that he did not perform an inventory of the property when we moved in. Despite this I went to great lengths to ensure the carpets were spotless, the place was cleaned professionally etc. I'm hoping this should make me look good if it were to come to court. He also has another tennant directly above my old apartment, whose deposit will not be in a scheme either.

 

So, what do I do now? He's meeting his solicitor on Wednesday, and I think I'd like to start court proceedings against him. I understand I need to write him a letter before I can do this, but can anyone tell me exactly what I should be writing to him? What do I say to him apart from "I'm going to sue you for not having my deposit in a scheme within 14 days".

 

Do I need to seek legal advice as soon as possible? Anyone know a good place in Newcastle?

 

Damn, I'm so confused, this could be extremely expensive if it all goes wrong. :-?

 

What rubbish!!!. Is obviously a deposit rather than rent in advance, otherwise you wouldnt have paid any rent until the 3rd month of the tenancy (as you would have paid the 1st and 2nd months in advance).

 

The legislation is quite clear on what a deposit is;

 

“tenancy deposit”, in relation to a shorthold tenancy, means any money intended to be held (by the landlord or otherwise) as security for—

(a)

the performance of any obligations of the tenant, or

 

(b)

the discharge of any liability of his, arising under or in connection with the tenancy.

 

Therefore an amount held to make up a possible 'shortfall' in rent is actually classed as a deposit under the act.

 

If you are going to proceed with the claim then, a LBA (letter before action) stating that if the deposit isnt protected within 14 days or returned to you in full, then you will submit a claim to the county court for the deposits return + x3 "compensation" without further communication. Fill out the N208 form and send it to him so he can see you mean business.

[Gaskie]

Thanks Planner.

 

I don't think I can really demand the deposit back (can I?) since the tenancy is still ongoing. Actually I don't really expect it back until the tenancy is over, or at least until I've paid my last months rent in January.

 

I've seen a post somewhere which has suggested wording for the LBA, can anyone point me in the right direction? I can't seem to find it at all! There is also a thread on filling out the N208 form I believe. Do I send the N208 alongside my LBA?

 

Of course, the problem is that upon receiving the letter and speaking to his solicitor, if he has any sense he'll immediately put the money in to a scheme which kind of negates my claim. I wonder if I can use the letter from his solicitor stating that the money is not a deposit as some sort of leverage in court?

[Planner]

Thanks Planner.

 

I don't think I can really demand the deposit back (can I?) since the tenancy is still ongoing. Actually I don't really expect it back until the tenancy is over, or at least until I've paid my last months rent in January. I dont see why not. If its not held in accordance with the law. Alternativley, if you have it in writing that it is rent in advance, then miss a months rent payment.

 

I've seen a post somewhere which has suggested wording for the LBA, can anyone point me in the right direction? I can't seem to find it at all! There is also a thread on filling out the N208 form I believe. Do I send the N208 alongside my LBA? It needs to say nothing more than suggested above. Send the completed N208 with it.

 

Of course, the problem is that upon receiving the letter and speaking to his solicitor, if he has any sense he'll immediately put the money in to a scheme which kind of negates my claim. I wonder if I can use the letter from his solicitor stating that the money is not a deposit as some sort of leverage in court? As previously stated, he can put the deposit into a scheme all the way up to the court hearing.

Once again, good luck.