I'm claiming 3x my deposit back through small claims court

[stackedactor]

Ok, so to make a long story short:

 

- Tenancy ran for 12 months from 19 Oct 07 to 18 Oct 08.

 

- My contract made reference to the TDS and claimed that the deposit would be protected by them.

 

- On "check-out" of the property, ( Fri 17th Oct 08 ) they nit-picked at things to take out of the deposit. The following day I decided to use the Protection Scheme to dispute this.

 

- I did some research and found out for the first time that the LA should have provided me with a Certificate of Protection within 14 days of taking my deposit. I had not recieved anything from them.

 

- I repeately requested this certificate so I could pursue my right to dispute. After a month still nothing. My suspisions where aroused.

 

- I contacted all the schemes and none had any record of my tenancy deposit by my name, the landlords name, the LA name, or the property address.

 

- On 1st Nov 08 I placed a Small Claims Court order against the LA for the deposit plus 3 times the amount as per the Housing Act 2004.

 

- They did not respond and a judement was passed by default soon after.

 

- I requested the money from the LA. They gave no response.

 

- I issued a Warrant of Execution on 17th Dec 08. It eventually returned unfulfilled as they had applied for a Stay of Execution on the 16th Dec 2008 giving the reason "They never recieved the original claim papers".

 

- On the 19th January 2009 the LA sent me a copy of a protection certificate from myDeposits (aka TDS) with the following information on it:

 

Tenancy Start Date : 19 Oct 07

Deposit collected from tenant: 19 Oct 07

Period of Protection: 28 Oct 08 until the deposit is unprotected plus 90 days

 

Notice anything interesting? My tenancy expired on the 18th Oct 08. Their protection started 28th Oct 08.

 

- I have a hearing on the 17th April 09 to find out if the LA will be allowed an opportunity to defend their case.

 

The running total to be claimed is currently £2335.

 

Has anyone else had an experience similar to this? I'd be interested to hear from anyone, but particulary those who used the small claims court.

 

Any other thoughts or input would be great. I will keep this updated if anyone is interested in the outcome.

 

TIA!

 

 

P.S. Please excuse any gramatical / spelling errors - it's late! I need to go to bed!

 

[Steve__M]

I don't recall any similar cases here!

 

Sounds like you're in a strong position at the moment, but some cases have not gone the tenants way because the deposit was protected late (even if the prescribed information wasn't given to you) and because the claim was started after the tenancy ended (bizarrely).

 

Have you considered seeing if they will settle the case before the hearing, just to avoid uncertainty and things dragging out - maybe ask for 2 grand in cleared funds?

 

Let us know how you get on.

[CarrieYuan]

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/176307-penalty-claim-do-i.html

[CarrieYuan]

Try to settle first. I thought I had a very strong position (probably stronger than your situation) Even the judge said LL was completely failing of Housing Act 2004, the nature of my case was completely different from Harvey v Bamforth case.

Your situation can be argued with Harvey v Bamforth case or the Bedford County Court struck-out case.

If you determine to go ahead, do prepare with the uncertainty. Prepare the worst case scenario.

Edited April 10, 2009 by CarrieYuan

[stackedactor]

Thanks for the support Steve, and thanks for that reference Carrie.

 

In relation to your case, I am working with the fact that they have not repaid me any money, therefore 214 section 3 is still relavent - so even if it is a precursor to 214 (4), they should still be applied together in my case.

 

I was slightly concerned about the N208 form stuff. MCOL is just an online version of the same form. Northampton County Court should support this in a clearer mannor to stop people "jumping" the law on a technicallity of a specific document! I think it's stupid... I will proceed non-the less!

 

The Harvy vs Bamforth case is interesting. The judge decided that because the prescribed information was presented (all be it late) then the tenant did not suffer.

 

In my case, I was provided with the infomation after the end of the tenancy. Further to this, the information shows that the protection was not in place for any time during the actual tenancy period.

 

I would argue:

1) The information provided is not the "prescribed" information as it does not relate to my tenancy agreement (by date of coverage)

2) The information provided is proof of an obvious attempt at decipt. My original claim was issued on the 24th October 2008. They took out the deposit protection on the 28th October 2008.

3) The timing of this deciptful protection application would suggest that they did indeed recieve the original claim papers and acted to avoid them.

 

 

Many thanks again guys. I've sent them an offer to settle out of court for the full amount. Otherwise on Friday we'll be attending a hearing to see if they have the right to defend themselves.

 

I'll update when I can....

[Planner]

I was slightly concerned about the N208 form stuff. MCOL is just an online version of the same form. Northampton County Court should support this in a clearer mannor to stop people "jumping" the law on a technicallity of a specific document! I think it's stupid... I will proceed non-the less!

 

 

Actually, I believe that MCOL is the online version of the N1 County Court Claim form rather than the N208 form. There is to my knowledge, no way to submit a N208 claim online. That aside, it should stop you continuing with the hearing.

 

Good luck.

[stackedactor]

Thanks for clearing that up Planner! Fingers crossed.

[CarrieYuan]

Actor, your landlord would have "sufficed" section 214 (3)b if you met my DJ. Precursor still applies.

 

The Bedford County Court case is where a landlord protected deposit after 13mth and still managed to get the tenant's case struck out. I don't know whether the tenant left the residence or not. Very similar to yours?

 

Not a discouragement, but just try to point out where the potential risk is. I personally think that you should win.

Good luck! Keep us posted.

Edited April 15, 2009 by CarrieYuan

[stackedactor]

I see your point Carrie but I'm not detered. Later today (I can't sleep right now!!) I have the hearing of their appeal to ask if they are allowed to defend. I am being hopful that it won't get to the point of arguing the details of when and how they protected it.

 

The default judgment was passed against them, and their reason for appeal is that "they never recieved the claim papers".

 

Well, my task tomorrow is to prove attempts at decipt and foil their right to defend the default judment.

 

On the time line of events.... the tenancy ended 18th Oct 08, my claim was "issued" (not just applied for) on the 24th Oct 08 (a Friday). They then protected my deposit on the 29th Oct 08 (following Tuesday) with TDS (myDesposits.co.uk).

 

My main question is this.....

 

"What prompted them to protect my deposit 10 days after the end of my tenancy, and conviniently 2 working days after the claim was issued?" - given that they protest they never recieved the documents.

 

Further to this.....

 

They protected the deposit with TDS despite the fact that the original tenancy agreement details the DPS as the protection service. The latter being the scheme that holds the deposit rather than insuring it.

 

And finally....

 

They listed my ex-partner as the lead tenant on the protection certificate, with my name under "Other Tenants". Yet section 6.13 of my agreement (titled Tenancy Deposit Prescibed Information) clearly states that I am the lead tenant for this tenancy.

 

 

So all in all I will suggest that either this was a conveniently timed combination of calamities... or they did recieve the papers and have been trying to decieve me, and now the court.

 

Am I right in thinking that as it is their appeal hearing, I will be putting the pressure on them to fully explain these issues to the judges satisfaction?

 

Quesiton is, where will his level of satisfaction be at??

 

The hope is, they are denied. I win my money. Sadly that eventuality wouldn't offer anything to those fighting their case further. I would have won on the fact they defaulted on a claim, and little to do with the deposit protection.

 

However, I may also be back here figuring out my case should they be granted their defence. Ho-hum :(

[stackedactor]

Interesting link... all be it against the grain.

Birmingham is obviously the place to claim!

[Josie8]

Good luck today

[Planner]

Good luck and let us know the outcome in as much detail as possibe!

[CarrieYuan]

Interesting link... all be it against the grain.

Birmingham is obviously the place to claim!

 

I've been doing my bit of reading recently. According to the paper I got (Estates Gazette 22 Nov 08 page 120), in the Harvey v Bamford case, the landlord actually put the money into the scheme within 14 days of the beginning of the tenancy (section 213 (5)a satisfied). She only didn't give the notice within 14 days (section 213 (5)b not satisfied), but subsequently gave it before the tenant applied to the court. The appeal was based on whether 214 (2) depends on 213 (5)b.

 

Looks like it's a slip of the landlord. The appeal judgement made sense in a way. Not contradicting with Brirmingham case. Should give tenants more backing.

 

Sorry being late. But anyway looking forward to hear your good news.

[CarrieYuan]

Planner, you are almost the de facto BM of the board. You know most the cases. Would you mind compiling the case library?

[stackedactor]

Todays Hearing Result

 

It was a half hearted result.

 

The judge informed the LA that "not recieveing the papers" is a reason to seek a set aside judgment but not a defence for it.

 

My attempt to ponit out questions I had about potential decption / fraud of the protection could not be heard as it invloved looking at the certificate, which would require further interrogation - that kind of stuff is for a counter-defence in the future!!

 

The judge instructed the LA to pay me the £550 deposit back and submit a legitimate defence by the 2nd May. I raised concern that other cases i'd seen failed to suceed in light of the LA paying the deposit back. The judge told me that would not be applicable as it will be judged on the state of affairs at the start of the claim and not affected by payments made during the process of the claim.

 

I will then have 14 days from the recipt of the £550 payment and their defence to decide if I accept it or wish to pursue the rest of the amount.

 

I can say with some certainty I will be pursuing it. I spent near £200 just in application fees aside from the deposit.

 

Does anyone know if I'm likely to inccur any further fees by continuing? I'm still not sure if I will opt to find professional legal help (other than the £35/hr phone calls to an over-the-phone legal aid firm). I will wait to see what their defence is. I hope it's really lame!

 

 

In addition to this today, I've lodged a complaint with TDS (mydeposits) for allowing a LA to take out protection on a deposit while listing the "deposit paid on" date as over a year before the "protection date" despite their application form saying that it should be within the past 30 days of the application.

 

They actually state it "can" be in the last 30 days which is quite frustrating when you try to hold them accountable for an invalid certificate. Either way, I've suggested the failing in there system allows for fraudulent certificates to be produced and even the "30 days" is a generous allowance given their business is a key part of adhearing to the Housing Act 2004.

 

I'd like to see them have a system with a seperate apllication form for "late protection" when the application and the date of deposit recieved are more than 14 days apart. Late protected deposits seem to escape the full letter of the law anyway, so marking them as late won't make much difference.

 

Suppose it'll be a cold day in hell before I see that though!

Edited April 17, 2009 by stackedactor

[Josie8]

The Judge clearly didn't think their defence would have a good prospect of suceess just a possibility of. If he had thought their defence had significant merit he wouldn't have ordered them to repay the £550

[stackedactor]

That's a hopeful outlook on the situation. Thanks Josie

[CarrieYuan]

Anyway, the judge said "it will be judged on the state of affairs....."

 

My understanding is that if it is small claim, you cannot claim legal costs. If you employ a lawyer, you will have to pay yourself.

 

I did it myself in the first round and lost but allowed to appeal. My solicitor told me since now we are arguing a point of law. It can no longer be a small claim. So both of us put the stake high. If one lost, need to pay the other's legal cost. -- the "merit" of English legal system

 

I would still suggest to settle out of court before the hearing (mentioning what the judge said). Obviously, your judge can be much easier to deal with than mine. You might not even go near what I am currently being through.

[stackedactor]

Can I just clarify that with you Carrie? I understand that right now I cannot claim legal fees. But if I loose and then choose to appeal, I can?

 

I will ask them again for an out of court settlement. However, I am loathed to ask for much less that I've left to claim! Mostly it's on the principle. The firm appears as a major professional LA for the Merseyside region - yet the reality is they are a bunch of cowboys.

[CarrieYuan]

I think if you are in Small Claim you cannot. You have to change track to get the legal fee awarded.

 

The lawyer didn't confirm whether in the appeal stage we could claim it back or not if it's in the Small Claim track, as we would have to go on fast or multi track to get a legal point cleared.

 

I don't think you should ask for less. But just simply point out you have a strong case, even the judge agreed. If they pursue, they would turn out worse as they might end up a legal bill in additionl to what you claim now.

 

Tell me fighting on principle. If I assign 50-50 on the expected win and loss, I probably should have stopped now.

 

Just give you an idea, most of lawyers quoted me 160-360 +VAT per hour.

Edited April 17, 2009 by CarrieYuan

[stackedactor]

I got a response to my complaint to mydeposits:

Dear Sir,

Thank you for your recent email regarding our insurance based deposit protection scheme.

Although under the current legislation the tenants deposit should be registered with a scheme within 14 days, our system will allow this to be protected anytime during the fixed term period of the AST agreement. As our scheme is in place to ensure the protection of the tenant, the fact that the landlord registered the deposit outside the 14 days does not affect their individual protection and rights to use the free impartial dispute resolution service offered by our scheme at the end of the agreement. However, if the tenant disputes the fact the landlord did not comply with the 14 day deadline in the legislation they are still able to seek legal action against the landlord.

Unfortunately in your situation it appears that your landlord has wrongfully protected your deposit as the fixed term period of your AST agreement had passed, and in fact your tenancy agreement had ended. When making a deposit protection with our scheme via the landlords online account, we ask for the earliest contractual end date of the tenancy agreement in question, if this date has passed our system will not accept it and the landlord is unable to protect the deposit with our scheme. It appears that your landlord has entered online 29/10/2008 as this date to bypass the system and therefore this made the protection invalid with our scheme.

We apologise for the inconvenience this situation has caused you and I have forwarded these details onto my management to investigate further.

 

I will send this on to my LA highlighting the key bits and request they settle the rest of the money out of court. Although i'm still awaiting the initial £550. Think I'll send it signed delivery too. They aren't exactly responsive to me!

[Planner]

I got a response to my complaint to mydeposits:

 

 

I will send this on to my LA highlighting the key bits and request they settle the rest of the money out of court. Although i'm still awaiting the initial £550. Think I'll send it signed delivery too. They aren't exactly responsive to me!

 

Nice work. So the deposit isnt actually protected is it? Make this abundantley clear to the LA/LL.

[stackedactor]

I received their defense today. Time to give up? I got my deposit back which I am pleased about. But weasel words / phrases are there... is my accusation of their ill intentions with my deposit along with my obvious 'opportunistic' approach redundant to their "administrative error"?

 

If this is likely to mean they win, why the hell do we have legislation that awards 3 times the amount? surely given it's triple any deposit paid, it will always seem opportunistic??

 

[Planner]

I received their defense today. Time to give up? I got my deposit back which I am pleased about. But weasel words / phrases are there... is my accusation of their ill intentions with my deposit along with my obvious 'opportunistic' approach redundant to their "administrative error"?

 

If this is likely to mean they win, why the hell do we have legislation that awards 3 times the amount? surely given it's triple any deposit paid, it will always seem opportunistic??

 

 

Whats listed in this letter is quite different (in my mind at least) to the situation you outline in your first post. Are the issues and claims they have listed here true?

[Steve__M]

I can't see the letter at the moment because of the internet filter on my machine not liking file sharers, so I'm basing this on what you've said.

 

If they protected the deposit after the claim was issued, then really they are in the wrong, but you might have to sell your case to the judge. The judges seem to be using the ambiguity in the law to give them latitude in its application.

 

On the other hand, your original post says your tenancy ended on 17th October and you issued your claim on 1st November. But you also said you pursued them for a month and repeatedly asked them for a certificate. So the story here doesn't scan.