TDS - at my wrists ends, can somebody help please?

[Alice lost in TDS]

Hello,

 

First post here so I hope I have posted it at the right place.

I have been reading the forum extensively lately and have been quite enlightened by what I found here but I was wondering if anybody could have a quick look at my situation and give me some advice? I'll keep it as brief as possible, promised!

 

My partner and I moved into our current accomodation on August, the 1st 2000 (!) and paid our (private) LL a £1,000.00 deposit corresponding to a month's rent on the basis of an AST for a year with a two months get out clause either sides.

The AST then moved to a periodic tenancy for the subsequent years up until he decided to bring the rent up on 1st of July 2008, made us sign a new contract, therefore new AST, kept our previous deposit and asked us to top it up so that he would still hold the equivalent of a month's rent at the new rate.

 

I have to point out that our LL has been very unhelpful throughout the years (left us to deal with a broken boiler and fridge over Xmas and New Year one year, saying that it wasn't his responsability to get the repairs done etc - which we had to do and paid for of our own pocket and he subsequently paid back - two months later) but for various personal reasons, it was just easier to stay put.

 

Which brings us to now.

 

We've had repeated flooding since last year and nor the LL or the Freeholder have done anything about it. To speed the repairs up, we have asked Environemental Health to come and have a look which they are still to do but after multiple phone calls and a disastreous meeting with the LL still saying that nothing is his responsability, it's become very clear that the best thing for us to do would be to leave at the end of our current tenancy term.

 

The LL being extremely unreasonable, we are very scared he might try to hold our deposit back and have found out by ourselves that it hadn't been protected.

 

We are in a very fragile situation financially at the moment as I have had to give up my job to look after a relative and the repeated floodings and problem with the LL are a huge strain mentally.

 

We nevertheless think, maybe wrongly, that the best way of protecting ourselves is to go down the TDS way.

 

So a few questions for you:

 

1) given the circumstances, should we go ahead and start the ball rolling on the TDS front right away, maybe giving him time to protect the deposit before it gets to court? Or should we wait till we are nearer to our term? (2 months from now)

 

2) do we have to ask the LL whether he has protected the deposit BEFORE sending the LBA?

 

3) the LL lives abroad, can we claim at the Small Court relevant to the flat's address (i.e. where WE live)?

 

4) our understanding is that, as the tenancy is finishing, we do not have to actually give a 2 months notice of us leaving but are willing to do so to prevent the LL from counter claiming for loss of rent (although I think that this wouldn't be receivable anyway as the tenancy is coming to an end?). Is that a bad idea? i.e. giving the LL far too much notice. Or would this be seen as favourable by a judge? Or not matter either way?

 

5) since our claim would be for £1,250.00 (deposit + top up) + 3 x £1,250.00 i.e. £5k in total, should we give up on asking for court fees back as well as any interest owed to avoid going over the £5k limit for small court claims?

Can we ask the LL for all this in our initial LBA in view of settling out of court but then give up on these last two bits if we have to lodge the claim? Or should both LBA and claim display the same amounts?

 

Many thanks in advance to anybody who can help,

A

[Planner]

I hope you mean WITS end!

 

1) Might as well do it now. Its is apparent that the landlord can protect your deposit at anytime up to the court hearing.

 

2) Ring/Check on the three TDS websites to see if its protected.

 

3) You should have an address in England/Wales for service of papers. There is then the added difficulty of how to enforce judgement on a foregin landlord.

 

4) It would have no bearing on any TDS claim either way.

 

5) TDS non-complaince claims arent dealt with in Small Claims so the £5,000 limit doesnt apply.

[Alice lost in TDS]

Hello Planner,

 

Errrr, actually definitely at my wrists' ends!

Thanks so much for replying, this is very generous of you.

 

Re 2), I have already rung them all and it isn't protected but I was wondering if a judge would look down on us serving the LL with a LBA without ever asking him informally if the deposit had been protected?

Do we even have to send a LBA?

 

Re 3), I pay rent into his UK bank account, in case of favourable judgement to us, providing there are funds in the account of course,is it something a bailiff can cease on our behalf?

 

Re 5), ok, I am a little confused...I thought I had to claim under form N208 at the Small Court? Does that mean that the costs for filing are going to be above £150.00? Do I have to have a solicitor? Should I pay for my LL's solicitor's fees should I lose?

 

Oh dear, first person in my family to ever have to take somebody to court so all a little scary.

 

Again, very appreciative of any opinion, experience you are willing to share but fear not, I know that ultimately, this is up to me to decide which way to go, just good to have another person's point of view.

A.

Edited April 21, 2009 by Alice lost in TDS

[Planner]

Hello Planner,

 

Errrr, actually definitely at my wrists' ends!

Thanks so much for replying, this is very generous of you.

 

Re 2), I have already rung them all and it isn't protected but I was wondering if a judge would look down on us serving the LL with a LBA without ever asking him informally if the deposit had been protected?

Do we even have to send a LBA?

 

Re 3), I pay rent into her UK bank account, in case of favourable judgement to us, providing there are funds in the account of course,is it something a bailiff can cease on our behalf?

 

Re 5), ok, I am a little confused...I thought I had to claim under form N208 at the Small Court? Does that mean that the costs for filing are going to be above £150.00? Do I have to have a solicitor? Should I pay for my LL's solicitor's fees should I lose?

 

Oh dear, first person in my family to ever have to take somebody to court so all a little scary.

 

Again, very appreciative of any opinion, experience you are willing to share but fear not, I know that ultimately, this is up to me to decide which way to go, just good to have another person's point of view.

A.

 

2) The idea is to get the deposit protected or returned without going to court. Therefore you should send a LBA (along with the filled in N208 form).

 

3) If there are funds in the UK account then I suppose they can be seized. You havent mentioned if you have a England/Wales address for service of notices? - this is very important.

 

5) N208 is dealt with at the County court through the fast track. £150 set fee. No solicitor required. I suppose fees would be awardable should you loose.

[Alice lost in TDS]

Hello again,

 

My spelling is abysmal !!! Sorry about that.

Thanks for your further comments.

 

Re 3), is it a case of getting in touch with the Land Registry?

 

Thanks again,

A.

[Planner]

Hello again,

 

My spelling is abysmal !!! Sorry about that.

Thanks for your further comments.

 

Re 3), is it a case of getting in touch with the Land Registry?

 

Thanks again,

A.

 

No it should be in your contract.

 

If the contract doesnt contain an address for service in England/Wales (including an agents address or a c/o address) then no rent is payable until one is provided (then its due).

[Alice lost in TDS]

Hi Planner,

 

Oh dear.

The plot thickens.

I went and checked the lease I signed and there isn't a UK address on it indeed. I feel really stupid for not having spotted that.

I am wondering what to do now...obvioulsy, I don't really want to get in the holding rent back and would rather pursue the TDS route...

Would it be ok to send the LBA to his abroad address asking him to give me a proper adress for servicing?

And what to do if he doesn't?

There are really so many things we could chase him up on (re him not fulfilling his LL duties and responsabilities) and because of our personal situation, I am trying to find the safest and cheapest way... ***Oh dear, it sounds like I am really out there to get him at all costs, that's not the case really, just want to be fair but don't want to put myself through a lenthly, expensive and uncertain case at this point in my life***

Again, I really appreciate any help but don't feel obliged to, I don't want to take too much of our time.

A.

Edited April 21, 2009 by Alice lost in TDS
Explain intention

[help me kick his butt]

Hi Alice, if there is no address for the LL on your contract you can legally stop paying the rent untill you have this address. Do make sure that you put it into another account and save it as once you have the address you have to then pay the arrears.x

[Alice lost in TDS]

Hello Help Me Kick His Butt and thank you to you too.

Sorry everybody, am there a lot as I am at home looking caring for somebody...hope I am not to greedy.

To resume, I should ask him for a UK address, paying rent in a separate account, pay it back to him once he has provided the address and I can then send my LBA?

I am just a little worried that if I ask him for an address for servicing, he might take the hint and guess why I asked him for it and protect the deposit before I can even send my LBA....

A.

[help me kick his butt]

Well yes, that is a risk you take, but also a way of making sure that your deposit is not retained for unnecessarily as if you have 2 months rent in your account you are almost there.............

You are legally entitled to with hold rent if you have no address. You do need a UK address to serve the papers x

[Alice lost in TDS]

Ok, I know this is turning into something a little more complex than I though initially but what do you think of the following worst case scenarios?

 

A

1. Ask the Landlord for the UK address and withhold the rent, paying it into a separate bank account

2. Landlord gets back right away with full details but protects deposit at the same time

3. Pay the LL the overdue rent and send my LBA

4. LL says that since I have withheld rent at some point, I was considering that the tenancy agreement wasn't legal and terefore have no grounds for claiming on TDS grounds

 

B

1. Ask the Landlord for the UK address and withhold the rent, paying it into a separate bank account

2. LL doesn't get back but takes me to court over unpaid rent

 

Does he need a servicing UK address to be able to take me to court himself?

 

Or am I really losing my marbles here?

I am very weary of my own common sense as I know that common sense doesn't always = law.

 

Environement health just has been, the Lady was appalled and will issue a report to the LL (even mentioned Asbestos!!!); can I use this report as part of my claim N208 to show that he is an irresponsible and negligent LL if we go ahead with TDS (so that the judge wouldn't look favourably at him eventually protecting the deposit before the hearing) or would the judge not even look at it as this is not technically relevant to a TDS claim?

 

A.

[raydetinu]

Withold rent against deposit, move out and let him chase you for the rent if he wants, but he has it anyway ie the deposit, so you both get want you want nobodies lost.

[Alice lost in TDS]

Hi Raydetinu, thanks for giving me advice on this:), I am pretty much sure that the LL would give me his UK details fairly quickly to get his rent payment back in as he tends to think he can do whatever he pleases, never feels he has a duty or responsability as a LL and always says "you cannot withhold rent, this is not legal", although we actually never have threatened to! Seems to be stuck on that one.

 

I suspect he must have some direct debit or such linked to us paying the rent so I genuinely think he would do his utmost to get the situation back on track if he found out we actually had a legal right to withold rent to even if it meant it would then leave himself open to court claims - I suspect he doesn't even think he has ever done anything wrong.

 

I know you're trying to help me find the fairest (and painlessness) way to get out of this and I fully appreciate it.

I really do not want to seem ungrateful to you and the time you took replying to my post but I've always been an extremely helpful and decent tennant, never have been late for rental payment and I would find it difficult to find myself in a position where the LL could actually chase me for monies due.

To the point of the Environment Health officer visiting this morning begging us to stop assisting and helping our LL as "he doesn't deserve you".

And anyway, I am sure the LL would actually make sure he rectifies the point of missing Uk address so hat we carry on paying him rent.

I have strong suspicions he's not intending to pay us the deposit back either.

 

After much consideration, I have actually enough of his patronising ways and would like to show him that I have been honest and fair all along my tenancy with him and I genuinely resent the fact that he hasn't protect my deposit and could decide to dispose of it as he pleases.

 

The whole point of us contacting Environment Health is that we do not want this person to be able to rent this place in the state it is (all documented, none of it our wrong doing) and thus ripping off naive tennants.

 

By the look of things I could sue him on so many points but that's just not me, I'd rather he's forced to put things right and in the same spirit, would like him to be told he should have protected my deposit and be fined for it.

 

Oh dear, I am really getting angry here!:mad:

 

So I guess that still leaves me with the following questions:

 

1) Have I fallen on my head and nobody in his own right mind would agree with me following my TSD claim?

 

2) Since I will have to politely ask for his Uk servicing address explaining that if he doesn't fwd it, I am legally allowed to pay rent on a separate bank account from his for the time being, would I still be able to pursue a TDS claim later on?

Or would a judge brand the AST invalid as this address was missing from the lease at time of signature?

 

3) I am willing to take the chance of him protecting the deposit before the hearing; on gut feeling, what do people think?

Is it better to wait for the end of the tenancy agreement and non/part return of deposit or should I go ahead right away whilst the tenancy is still going?

 

4) If the LL doesn't provide me with a UK servicing address, has anybody ever heard of a tenant serving claim at the property's address by default?

 

5) Would it be wise of me to enclose a copy of the Environement Health's report to my N208 form for the judge to see what kind of person we are dealing with here? Or would the judge see it as irrelevant and not help me in this case?

 

Ooops, sorry, hope I haven't been ranting too much.

Thanks,

A.

Edited April 21, 2009 by Alice lost in TDS

[Alice lost in TDS]

By the way, thanks to everybody, I feel I have learned a lot in 24hrs already, this is brilliant!

[raydetinu]

Just re read the thread; When are thinking of leaving, is it imminent?

I would not bother with the stress of litigation if it just a few months away!

Just do as I said and dont pay last months rent, he keeps deposit in liue.

He would have to chase you then if there any other things he wants to deduct from the deposit.