TDS Non-Compliance Case: Advice Needed Please

[Can_Do_Network]

Here's the situation:

 

Our Landlord has refused to give our deposit back. She has provided a petty list of disputable charges and offered us £400. I refused. Upon researching further, it appears I have a good case for sueing for TDS non-compliance. I am about to send her a Letter Before Action (LBA) requesting the £800 within 14 days or we go to court and I claim that, plus 3x again.

 

Here's the story so far:

 

Our deposit was placed in a personal bank account. She has stated on e-mail that the money is in such an account.

 

We originally signed an Assured Short-hold Tenancy (AST) in December 2006 for 6 months via a lettings agency. We paid 6 months in advance + £800 as deposit when we began the tenancy.

 

We renewed in June 2007 for 1 year, LL photocopied the original agreement and changed the dates for the new tenancy. We were not told that they had stopped using the lettings agent. This was a cost saving excercise.

 

Renewed again July 2008, resigning a new agreement for 1 year. There was a 2 month notice period agreed both ways and this was added to the agreement.

 

In January 2009 we gave 6 weeks notice to leave the property (Feb 20th) and e-mailed the LL to request that this was OK and would bear no financial penalty and the LL agreed by e-mail.

We handed the keys back and she said she would do the inventory the next day. We then got an e-mail detailing her reasons for not returning the deposit and got really petty over wear and tear and sent a list of charges (that I can justify if required) - she attached images from 2004 to show the condition of the house when we moved in - in December 2006! Anyway, that's another case - my claim here is for TDS Non-Compliance, she is welcome to make a separate claim if she wishes.

 

Questions:

 

1. Should I use part 8 of the CPR and submit the N208 form when the LBA deadline date is up? The other method is N1 but all the threads I have read indicate that N208 is the way forward.

 

2. Do I need to produce the e-mails at the point of sending the N208 to the court as evidence with a 'statement of truth'?

 

3. Do I need written confirmation from the 3 TDS schemes that our deposit is not logged with them and does that also go with the N208?

 

4. Can the LL still place the deposit in a TDS (even though our tenancy ended Feb 09) and avoid the 3x penalty?

 

5. Should I send a copy of the completed N208 with the LBA or just advise that I have it completed and that it's ready to send?

 

Thanks in advance for any help or advice offered!!

 

CDN

[help me kick his butt]

1. Should I use part 8 of the CPR and submit the N208 form when the LBA deadline date is up? The other method is N1 but all the threads I have read indicate that N208 is the way forward.

Yes, submit N208, the courts advse you to use this. Its a straight forward case of non compliance, so part 8 is fine.

 

2. Do I need to produce the e-mails at the point of sending the N208 to the court as evidence with a 'statement of truth'? Yes, all your evidence is sent in with the claim form.

3. Do I need written confirmation from the 3 TDS schemes that our deposit is not logged with them and does that also go with the N208?

Not essential, but I would obtain these anyway

 

4. Can the LL still place the deposit in a TDS (even though our tenancy ended Feb 09) and avoid the 3x penalty? No, the schemes wont allow this

5. Should I send a copy of the completed N208 with the LBA or just advise that I have it completed and that it's ready to send? Send it, it shows you mean business

[Can_Do_Network]

Thank you for your advice - that's just what I needed to know

 

I will advise progress in this post...

[help me kick his butt]

Welcome:D. Will be watching with interest.

[Planner]

 

4. Can the LL still place the deposit in a TDS (even though our tenancy ended Feb 09) and avoid the 3x penalty? No, the schemes wont allow this

 

 

 

I would disagree with your advice here. There are various cases out there where th deposit has been subsequently protected prior to the court date. I believe some (if not all) do allow retrospective protection.

[DisgruntledTenant]

I would disagree with your advice here. There are various cases out there where th deposit has been subsequently protected prior to the court date. I believe some (if not all) do allow retrospective protection.

 

I agree with Planner here. Give them a call and ask them and they will tell you that a deposit can still be protected if its in the LL's hand. Whether thats post or during tenancy. Remember the TDS is their to provide recourse to dispute to both sides, so placing it in one of these schemes post tenancy has to be a good thing for both sides right?

 

However if this is say 2 months after the end of the tenancy, I'm not sure how a judge would rule re the 14 days, given that the idea behind the scheme is for the LL to not be able to hold onto a deposit for an undue length of time post tenancy.

[help me kick his butt]

Hi, I just wanted to clear this up, so i have phoned all 3 schemes, all catergorically inform me that if the tenancy has ended, the deposit can not be protected. Not being argumentive though xx:p

[DisgruntledTenant]

Well I stand corrected. Apologies if I mislead you, but 1 did tell me different information than you received. Good to know that they cant protect the money post tenancy though.

 

How are you getting on with your claim?

[help me kick his butt]

Hi DT, LL settled out of court for full amount. In a way, I wish i had gone to court, just to see how the judge would have ruled. However, with my sensible hat on, I would have been silly to persue it through court when i was offered full amount xx

[DisgruntledTenant]

So you got the full amount, included the 3x penalty?

 

If so, great result, if not, why would you stop there?

[help me kick his butt]

yes, i got 3 x deposit plus court costs, had to buy a new handbag to celebrate x;)

[DisgruntledTenant]

Thats awesome! Congratulations! One more for the side of the Tenant.

 

My 7 days for the LBA expires tomorrow, and still havent heard anything.

 

Will be issuing the court proceedings Monday.

 

Wish me luck!

[help me kick his butt]

of course, Crossing everything for you x

[Can_Do_Network]

I have called all 3 services and none have any record. Send an e-mail requesting written confirmation.

 

Should I send the LBA now, informing her that I have confirmation and that the written confirmations will accompany the court claim or wait until I have the confirmations and then send the LBA?

 

Getting excited now!!

 

UPDATE:

 

Wow - Got an instant response from 'My Deposits' by e-mail - Negative of course

 

Letter going to Bristol as they rejected my e-mail for some reason. [email protected] is where I sent it. My e-mail address may be blocked on the system or something.

 

Just waiting on the e-mail from TDS and we're ready to serve.

Edited March 9, 2009 by Can_Do_Network
Updated Info

[Can_Do_Network]

My LBA:

 

My Address

 

 

9th March 2009

Her Address

 

 

LETTER BEFORE ACTION

 

Dear LL,

 

Thank you for the return of the £13.00 overpayment of rent which I have now received in my account.

 

In light of the ongoing issue concerning the return of my £800 deposit for XXXXXX, it has come to my attention that under Chapter 4 of the Housing Act 2004, my deposit should have been placed in one of the government registered Tenancy Deposit Schemes (TDS), with details of the holding scheme forwarded to me within 14 days of you receiving this deposit.

 

I have now had confirmation from the three TDS schemes who have all confirmed that our deposit was not protected. This evidence will be presented to the court to support my claim along with e-mail correspondence relevant to this case.

 

You will be aware that penalties for non-TDS compliance are an absolute offence for which there is no defence. The penalties (detailed under Section 214(4) of the Housing Act 2004) for non-compliance are the full return of the deposit without any deductions and x3 the deposit amount, in this case a total of £3,200.00.

 

I require repayment in full of the money owed. If you do not comply fully within 14 days then I shall begin a claim against you for the full deposit plus three times the deposit and court costs without further notice.

 

Yours Sincerely

 

 

Me

I would appreciate any thoughts on this before I send it to her. I am e-mailing this and sending hard copy along with the completed court papers.

[help me kick his butt]

I think it is important to reiterate the amount that you require the LL to pay. On reading your letter, it is unclear if you are just asking for the return of your deposit, or the return plus x3.

If you want to sue for the deposit plus x 3 it is correct to ask for payment of £3200.00 within 14 days.

It is important to get this letter correct as the judge will want to see that you have made every effort to recover the funds before going to court. x

[Can_Do_Network]

Thanks for your reply - good advice me thinks

 

I have re-worded the LBA as follows:

 

 

Thank you for the return of the £13.00 overpayment of rent which I have now received in to my account.

In light of the ongoing issue concerning the return of my £800 deposit for the tenancy at 31 Greening Street, it has come to my attention that under Chapter 4 of the Housing Act 2004, my deposit should have been placed in one of the government registered Tenancy Deposit Schemes (TDS), with details of the holding scheme forwarded to me within 14 days of you receiving this deposit. This became law in April 2007.

 

I have now had confirmation from the three authorised TDS schemes who have all confirmed that our deposit was not protected. This written evidence will be presented to the court along with recent e-mail correspondence that also supports the case.

 

I now require repayment of the £800 deposit in full within 14 days. If you do not comply then I shall begin a court claim against you for the full deposit plus three times the deposit amount and court costs without further notice, as detailed below.

 

The penalties (detailed under Section 214(4) of the Housing Act 2004) for non-compliance are the full return of the deposit without any deductions and three times the deposit amount, in this case a total of £3,200.00. You will be aware that penalties for non-TDS compliance are an absolute offence for which there is no defence.

I look forward to your prompt reply.

 

How does that one sound?

[help me kick his butt]

Sounds ok to me. Do you only want your deposit back then, I thought you were going for the x 3 penalty, if thats the case you LBA should ask her for £3200. or maybe you just want your deposit back and are using the threat of suing as leverage?

[Can_Do_Network]

The latter is correct. If she gives us the £800 - we are happy. If not, we go to court. I think that the judge will see that we have tried to be fair that way.

 

I have made a few more refinements to the LBA and am just about to send!!

 

Will post any responses here...

[Can_Do_Network]

The day before the LBA deadline expires, the LL sends this in an e-mail:

 

WITHOUT PREJUDICE

Dear ….

Thank you for your latest email dated 10 March 2009.

I still stand by my claim for financial compensation from you I'm afraid given the condition I found **the property** in when you vacated. It has been obvious from your behaviour and communications even before you left the property that you knew it was nowhere near the pristine condition that you took it on in December 2006. You even accept in writing that there was a cleaning bill to be footed. I, in turn, have a copy of the inventory you signed that December stating that all furniture and fittings were in 'as new condition' when you took the property on.

Re whether your deposit was protected or not, you have had every opportunity since April 2007 to query it with me given our frequent communications, in spite of the fact that I was based abroad. As I have always done my utmost to be a conscientious landlord to you and your family, and at all times acted in good faith, you know full well the outcome if you had queried the deposit with me. Instead you left it until the end of your tenancy in order to use it as a bargaining tool for blackmail. How astonishing after I had agreed, just the previous month, to give you a reference for your new landlord despite the fact you were still in rental arrears and also made no issue of your leaving with less notice than we had agreed on contractually.

Should you wish to pursue this matter to court of course you are at liberty to do so. I should warn you that it will be a lengthy and expensive, not to mention stressful, process for you and your family with no guarantee of the ultimate goal that you are after. In response I will be making a counter claim for compensation from you given the many clauses of the contract that you breached. I have already secured signed witness statements in support of my claim. You should also take note that the courts will take a dim view of your aggressive, threatening and patronising communications; they will want to see proof that you have acted constructively and taken all possible steps to avoid the legal process, not behaved belligerently from the start. Your first highly-charged email dated 23 February 2009 can be in no way interpreted as looking for a reasonable solution, it is quite simply childish and vengeful. Also, you would be wise to consider carefully the can of worms a court case will open regarding your tenancy at the house, including details such as the non-payment of utility bills, and the very real possibility that your new landlords will get to hear of it.

I have spoken to the Deposit Protection Service and they tell me that an independent adjudicator could not have assisted in this dispute as you threatened court action from the very beginning. It will look very much to the courts as though you have engineered this standoff as a means of personal financial gain.

In the unlikely event that you decide to accept my previous offer of returning half, i.e. £400, of your deposit please let me know in writing by signed letter stating that you accept it as full and final settlement.

Regards

LL

 

For the record, the utility bill she refers to is in dispute as British Gas screwed the bills up. We have informed all companies of our new address. I love the way she threatens us with the new LL finding out how terrible we are - they advised us to sue!!! I also like the guilt trip about giving us a reference and allowing us to leave two weeks before the 8 week notice period - she hadn't withheld the deposit at that time! I'm astonished at the passion in her e-mail - especially the accusation of blackmail!

 

Anyway, I have only received two written confirmations that our deposit wasn't protected (3 verbal) - should I wait for the third to arrive before preparing the court documents or continue regardless?

[Coastfodder]

as far as I could see your ex ll has not at any time stated she has now placed it in a scheme..

 

also from my own experience the ADR will not get involved if the case IS part of a court action.. There is nothing that suggest they wouldnt get involved if you had threatened it..

 

In fact in my case I had threatened action through the Courts but the ADR still took the case on with both Mine and my Ex LL agreement. We pulled out in the final stages as EX LL had submitted a load of tosh..Our case is Friday

 

You Ex LL is worried..that is obvious..

[slc79]

Hi, Good luck on your case.

 

I'm also wondering whether I should do something about my non-protection of deposit. Would you recommend going through a solicitor or can it be done by a layperson?

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/189495-tenancy-deposit-not-protected.html#post2059907

[Can_Do_Network]

That is exactly what we are doing, so yes, if the facts are clear and you are confident enough to have a go.

 

Having a brief look at your case, it appears that you do have a case to go for non-compliance but if the LL has since placed your deposit in a scheme, you will find it hard to get a result.

 

I would not have even thought about going to court without the support of the people here.

 

Good luck!

Edited March 23, 2009 by Can_Do_Network

[Davina D.]

Hi,

We are having similar difficulties with our ex LL and are going to court soon.

Was just wondering how your case went?