Legal Basis for TDS 'Absolute' Claim

[DisgruntledTenant]

Hi there, its been mentioned on here a few times that any claim for non-compliance of the TDS is an absolute claim and any deposit received back is irrelevant.

 

Is there a legal basis for this that I can refer to in a court of law?

 

Thanks!

[raydetinu]

No it is discretionary, up to the judge, the maximum fine being up to 3x the deposit. current cases seem to indicate that it can be protected any time during the rental period. The problems occur when you leave or give notice then find it has not been protected, or the lanlord gives notice to repossess, he cant issue a notice without it having been protected first. hence whence if and when it comes to court he can be fined for non-compliance and give deposit back etc. At least thats how I read it.

[DisgruntledTenant]

Thanks.... the question is more around post tenancy, if the LL returns the part or all of the deposit, after not protecting it.

 

Is the claim against the LL under this circumstance and absolute claim, ie the return of the deposit hasnt removed the liability of the LL. This is been mentioned a few times around here.

 

What is the legal basis behind this?

[raydetinu]

If tenancy finished and have agreed deposit return, then there can be no further claim. The TDS scheme was started to smooth out disputes on the return of deposits; so is only relevant while you are a tenant or just left and cannot agree deposit return or being given notice by a landlord; then the fact that it is not protected becmes relevant and can used at court in sorting the dispute. It will be up to the judge what he awards in the way of recompence or fine.

[DisgruntledTenant]

What if the landlord holds onto the deposit for 4 months before returing it. Are you saying this is ok?

 

Are you also saying that a landlord doenst actually have to meet his statutory obilgations and can simply not put the deposit into a scheme until the tenant takes him to court? Are you saying the TDS is simply a recommendation for LL's?

[raydetinu]

No! it is a legal requirement that he does put in a sheme; the resolution of which, if has not or will not, is to take him to court; if he wont return it and the fact that it was not protected will count against him and the judge will have the discretion to award the return up to 3x times the deposit. It will be up to judge to decide.

take him to small claims court.

[DisgruntledTenant]

Thanks Ray.

[DevilWearsPrimark]

I have had a directions hearing in my case, at which the LA returned full deposit to me (without being asked to by judge). But judge still has scheduled full hearing for compensation, so clearly thinks there is a case for the 3x fine despite return of deposit.

Don't know if that helps?

[Steve__M]

According to the law, if there is a case to be answered by the landlord, then the 3x "fine" is mandatory:

 

Housing Act 2004 214(4):

 

"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order."

 

Where judges have the discretion appears to be when deciding whether there is a case to be answered. It seems (anecdotal evidence) at least some judges are willing to consider enforcing the "fine" if a claim has been issued following landlord's refusal/intransigence, even if the landlord coughs up the deposit before the hearing.