How to ensure 3 times deposit penalty?

[Jenny269]

Hi,

Desperate help needed over how to ensure the 3 times penalty.

 

First I shall highlight Some background as to my situation:

 

- Tenancy started July 2008, moved in September 2008. Tenancy expires beginning of July.

- Joint tenancy with 3 other housemates excluding myself.

- When we moved in the house was filthy: rubbish, slugs, mildue, holes in floor! I actually had my first asthma attack in over 5 years sleeping there. It was unfit for human habitation.

- No information about whether our deposit was protected or who with, not after 14 days, not even after 6 months.

- After couple days of moving in and hours cleaning the place we complained to the landlord and demanded him to do a clean of the house but he pretty much refused based on the fact we had cleaned the place 60% already by ourselves, he was very unaccommodating and stingy on anything that would cost money.

- I asked about deposit in May 2009 and agent confirmed it was protected over the phone but refused to give me more details.

- I wrote letter to landlord asking for the deposit details, no reply.

- I wrote to all 3 deposit schemes and they confirmed in writing that they do not have our house/deposit listed under their scheme therefore indicating the deposit is not protected and the landlord/agents lied to me.

 

Given the above information, My questions are:

 

1. My housemates are not so bothered about taking action against the landlord, but given that he has been the worst landlord I have ever had and appears to have broken several laws including house unfit for human habitation, not informing us within 14 days about deposit and (if correct) not protecting our deposit at all, I want to take action against him for 3 times the deposit we paid. So, what is the tenancy deposit situation regarding joint tenancies - Do I take action against the landlord on behalf of all the tenants? Do i file the petition with all 4 names? or just my name?

 

2. As the tenancy is about to end, there is a chance the landlord will repay the deposit to me before any court 'hearing' date. Has a precedent been set (as only one person in this forum seems to say - but I'd like reassurance from others if there is any) that even if the landlord has paid back the deposit before any hearing, if I filed a county court application against him with a date that precedes the date he returned the deposit, that he will still have to pay the 3x penalty?

 

3. If not, what is the best way to achieve the 3x compensation?

 

4. Is there a best time to achieve the above (point 3)? ie making sure I take action before the tenancy runs out in July, taking action the day the tenancy runs out or after? At the moment I am inclined to take action the day I am supposed to moved out, because last time I wrote to the landlord to just ask him to clean the house, he came over 8pm the night he got it unannounced and screamed at me.

 

5. Which form is the best? I found several forms pointing to one option which cost over £100 and another which was cheaper?

 

 

Any help is appreciated!

[wikichris]

Hi, I am right in the middle of this too. I only found out the other day and heading into the last month of my tenancy.

 

Be very careful here. Some people have managed to claim 3 times deposit:), some not:mad:.

 

The best defence a landlord has is to immediately protect the deposit as soon there's a hint of court action. This should NOT protect them but some judges have seen it as sufficient.

 

This basically means if you're a landlord, why would you ever bother protecting the deposit if you can simply protect it only when a court order lands in your letterbox! :?

 

Also, the landlord might turn up at court with the original 2004 Housing Act sections. Sections here Housing Act 2004 (c. 34)

 

The language is slightly ambigous in places.

 

Many people, including barristers and lawyers dispute the meaning of the section and say as long as the deposit is eventually protected then there is no case. I think they are wrong and the Deposit Protection Service agrees with me.

 

If you look carefully it states that as long as the "initial requirement" was not met then you can claim the fine. The initial requirement being to protect your deposit in the first 14 days. If it wasn't for the word "initial" you might not have a leg to stand on.

 

There is a section which contains "The court must, as it thinks fit..." but this is NOT the section which concerns the 3 times deposit. Even though I say that judges have ignored this and ordered smaller sums. They are simply wrong.

 

It may come down to your judge but you are due it logically and legally

 

I don't believe a precedent can be set in a county court, that's the problem.

 

Please update us.

Edited June 29, 2009 by wikichris

[DisgruntledTenant]

Jenny, I'm in the same situation as yourself, just waiting for a court date now. Here is my guess at things, bare in mind I'm not a lawyer, but have looking into this thoroughly. You may want to get some proper legal advice before proceeding.

 

So, what is the tenancy deposit situation regarding joint tenancies - Do I take action against the landlord on behalf of all the tenants? Do i file the petition with all 4 names? or just my name?

 

 

My guess is all 4

 

 

2. Has a precedent been set (as only one person in this forum seems to say - but I'd like reassurance from others if there is any) that even if the landlord has paid back the deposit before any hearing, if I filed a county court application against him with a date that precedes the date he returned the deposit, that he will still have to pay the 3x penalty?

 

 

There has been no precedence set as no cases have gone anywhere further than a county court. However its pretty much assured that if the landlord protects your deposit before the court case, you wont get your 3x fine. This is due to the grounds for applying for the 3x dont allow for the 14 days.

 

4. Is there a best time to achieve the above (point 3)? ie making sure I take action before the tenancy runs out in July, taking action the day the tenancy runs out or after? At the moment I am inclined to take action the day I am supposed to moved out, because last time I wrote to the landlord to just ask him to clean the house, he came over 8pm the night he got it unannounced and screamed at me.

 

If I were you I would lodge the claim while you are still a tenant. There are arguments against an ex-tenant claiming the 3x fine as the law states that a 'tenant' may apply... The tricky situation you have is that your flatmates might now want to upset the LL the week that he's supposed to be returning your deposit.

 

5. Which form is the best? I found several forms pointing to one option which cost over £100 and another which was cheaper?

 

Use the money claim on line and go through the small claims court (if your total claim is less than 5k. Means you dont get exposed to the LL's legal fees. Beware, the process for this can be 9 months... and its not all plain sailing.....

[wikichris]

However its pretty much assured that if the landlord protects your deposit before the court case, you wont get your 3x fine. This is due to the grounds for applying for the 3x dont allow for the 14 days.

 

Assured? Cases have been won by the tenant even when the deposit was protected before the court date. I concede some have also lost.

 

Where's the incentive to protect deposits?

 

The law may as well say "after 14 days you have until issued a court order to protect the tenant's deposit".

 

The intial requirements of the schemes are that they are protected within 14 days.

[DisgruntledTenant]

Wikichris, dont get me wrong, I'm on your side here, but the general consensus is that the landlord can protect the money any time up until the case goes to court, purely due to how badly the law has been written.

 

A lawyer can argue that because its possible to protect the money after the 14 days, this means its not an initial requirement of the scheme that its protected within 14 days.

 

Also, "For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit"

 

Note "imposed by the scheme". If you can show me where the scheme impose that it must be done within 14 days, then you have a case... otherwise, the LL can protect the whole way up to court. As mentioned above, you can protect after the 14 days so.....

[Jenny269]

Thanks for the comments. I have found this exact disagreement concerning what happens if the landlord protects the deposit before the 14 days throughout the forum. It seems that some have won despite the deposit being protected before the hearing and some have lost because of it. What I would be interested in is whether there was any other difference between these cases or whether it was purely up to the judges discretion :-|

 

To give you an update, I filed the court order today via moneyclaim and did it on behalf of all tenants. (They all didn't mind that I did this and I will probably work out something privately with all the tenants because I am the one doing all the work and the one risking £100 on court fees). I applied under TDS non-compliance and also mentioned briefly that the LL was in breach of the housing act 1985 from the start of the tenancy as the house was unfit for human habitation - I felt this would strengthen my case in showing the general inadequacy and incompetence of the LL in general.

 

I figured that as my tenancy runs out in 2 days it was best that I filed the claim whilst I am still a tenant, therefore the court order precedes the end of tenancy date...but as the landlord wont receive the order till later this week by which time the tenancy runs out the landlord cannot protect the deposit because by the time he receives the court order I will no longer be a tenant and you cannot protect the deposit for a tenant who is no longer a tenant! The only question now is whether the LL can get out of the penalty by giving me my entire deposit in full before the hearing date :?

[DisgruntledTenant]

.... the landlord cannot protect the deposit because by the time he receives the court order I will no longer be a tenant and you cannot protect the deposit for a tenant who is no longer a tenant!

 

Are you sure? I was advised by one of the schemes that the LL can protect the money at any stage... even after the tenancy has expired.

 

Also.... FYI...

TDS - interesting development - LandlordZONE Forums

[Planner]

Thanks for the comments. I have found this exact disagreement concerning what happens if the landlord protects the deposit before the 14 days throughout the forum. It seems that some have won despite the deposit being protected before the hearing and some have lost because of it. What I would be interested in is whether there was any other difference between these cases or whether it was purely up to the judges discretion :-|

 

To give you an update, I filed the court order today via moneyclaim and did it on behalf of all tenants. (They all didn't mind that I did this and I will probably work out something privately with all the tenants because I am the one doing all the work and the one risking £100 on court fees). I applied under TDS non-compliance and also mentioned briefly that the LL was in breach of the housing act 1985 from the start of the tenancy as the house was unfit for human habitation - I felt this would strengthen my case in showing the general inadequacy and incompetence of the LL in general.

 

I figured that as my tenancy runs out in 2 days it was best that I filed the claim whilst I am still a tenant, therefore the court order precedes the end of tenancy date...but as the landlord wont receive the order till later this week by which time the tenancy runs out the landlord cannot protect the deposit because by the time he receives the court order I will no longer be a tenant and you cannot protect the deposit for a tenant who is no longer a tenant! The only question now is whether the LL can get out of the penalty by giving me my entire deposit in full before the hearing date :?

 

You should have used a N208 form, not MCOL as per court guidance.

[Jenny269]

Are you sure? I was advised by one of the schemes that the LL can protect the money at any stage... even after the tenancy has expired.

 

I had not heard that but it seems strange that a LL can protect the deposit of an EX-tenant, when the whole point of the scheme is to ensure the LL doesn't make unfair deductions to the deposit or benefits from it during the tenancy. I guess I shall see what happens when the LL gets the order.

 

Also regarding the forms used. I was stuck on this for quite a while: I had a special TDS pack which stated form N1 should be used whilst online forums suggested N208. In the end I rung up two different courts: one said to use the N208 and the other said to use moneyclaim because apparantly even though you cannot specify the type of form on there, it will still go to the right people who will know how to deal with it :? In the end I chose to go via moneyclaim as it was more straightforward and as I couldn't find a way of submitting the N208 online.

[DisgruntledTenant]

the whole point of the scheme is to ensure the LL doesn't make unfair deductions to the deposit or benefits from it during the tenancy.

 

Why would the landlord want to make deductions during the tenancy? The whole point of the scheme is so that the Landlord doesnt make any unfair deductions after the tenancy and when he is returning the deposit.

[Planner]

I had not heard that but it seems strange that a LL can protect the deposit of an EX-tenant, when the whole point of the scheme is to ensure the LL doesn't make unfair deductions to the deposit or benefits from it during the tenancy. I guess I shall see what happens when the LL gets the order.

 

Also regarding the forms used. I was stuck on this for quite a while: I had a special TDS pack which stated form N1 should be used whilst online forums suggested N208. In the end I rung up two different courts: one said to use the N208 and the other said to use moneyclaim because apparantly even though you cannot specify the type of form on there, it will still go to the right people who will know how to deal with it :? In the end I chose to go via moneyclaim as it was more straightforward and as I couldn't find a way of submitting the N208 online.

 

What ever 'special' TDS pack you used its simply wrong. The claim will still be dealt with hopefully.

 

The court guidance on the subject is here;

 

http://www.hmcourts-service.gov.uk/docs/infoabout/housing/section-214-application.doc

 

Ive found theres little point in asking the court staff for advice, they are just receptionists/admin people.

[Kentish Lass]

I found this on another forum and have already posted it elsehwere on here - you may need to be aware of this:

 

"Guidance has been published by HM Courts regarding the issue of claims under s.214 of the Housing Act 2004 for the 3x deposit 'penalty'. Apparently the civil procedure rules are soon to be amended to state that all claims must be started using Part 8 procedure.

 

this blog post explains a bit more.

 

Claims will be automatically allocated to multi track (not small claims) which means that legal costs are recoverable irrespective of the size of the claim. (Obviously, the court might then re-allocate if there were good reasons).

 

This means that tenants will have to be very sure of their case before claiming. This is probably to reduce the number of speculative claims relating to minor technical non-compliance (such as providing details a week late) as well as 'revenge' claims."

 

You could end up paying costs if your case is unsuccessful.

[wikichris]

Apparently the civil procedure rules are soon to be amended to state that all claims must be started using Part 8 procedure.

 

Hi, I'm very confused. Why do you say "soon"? Is the guidance not for now? Thanks.

 

The Court Service has published guidance setting out that the proper route for bringing claims under the Tenancy Deposit Provisions of the Housing Act 2004 is via Part 8 of the Civil Procedure Rules.

Key points to note are:

 

• these claims are automatically allocated to the multi-track which means that legal costs are recoverable irrespective of the size of the claim;
  
• the claim must be commenced on a form N208 and not the standard N1 claim form;
  

 

I just got my girlfriend to go to the court to submit an N208 to which the staff refused to accept saying the judge would throw it out. She went back to show them the guidance and still refused. Is it N208 or not right now? THANKS

[natalie]

I took my previous landlord to court and got the 3x the deposit as compensation even though he had given me back the deposit.

 

Got to go and get my kids from school now, but when I get back I will look up the case law that I used to demonstrate that the return of the deposit is infact irrelevant.

[DisgruntledTenant]

Natalie... looking forward to this... had you applied as a tenant or ex-tenant?

[Planner]

Once again s.214 TDS non-compliance claims should be dealt with via N208 Part 8 as per court guidance. You can obviously continue to submit a N1 claim, but at some point (according to the Painsmith article above), the courts are going to start rejecting them and the jusge could tell you to resubmit.

 

The CPR rules where updated in October 2008 to take account of the Housing Act 2004. The painsmith article is obviously suggesting that further ammendements are necessary as court staff and court users 'dont get it'.

[natalie]

I was an ex-tenant. I found out he hadnt protected my deposit when I moved out. I initially got a judgement by default through moneyclaim online, but he appealed it because I had "deliberately" filed papers over Christmas when his office was closed. (Doesnt your heart bleed).

 

Okay, I found these in the Legal Action magazine, May 2009 issue, law and practice/housing

 

I found an online copy of the cases, but I'm guessing they are written more for the benefit of the landlord in this article.

 

Return of Deposits

Seghier v Rollings, Bow County Court, 6 March 2009. An assured shorthold beginning in May 2007. A deposit was paid by Mr Seghier to the letting agent before the start of the tenancy. It was not protected, nor the required information given. Ms Rollings was apparently unaware of the existence of the deposit scheme. The deposit remained unprotected until shortly before the initial hearing of Mr Seghier’s claim in June 2008. At the hearing Ms Rollings gave a copy of the certificate of deposit to Mr Seghier, but the prescribed information was not provided then or subsequently. At trial, Mr Seghier sought an order that the deposit either be repaid or paid into a designated scheme account and the 3 x deposit be paid to him. HHJ Redgrave distinguished Harvey v Bamforth on the basis that Ms Rollings had still not complied with s213(6)(a). The phrase ‘as it thinks fit’ in s.214(3) meant the court must order either return of deposit (s.214(3)(a)) or deposit to be put in a scheme (s.214(3)(b)). Plus Payment of 3 x deposit within 14 days.

 

Beal v McCartney, Plymouth County Court, 12 March 2009. Ms McCartney granted Mr Beale a 6 month AST in March 2008. The tenancy agreement said that the deposit would be protected. It wasn’t. In September 2008, Mr Beal received a letter from the landlord’s mortgage lender informing him that a warrant of eviction was being applied for. The eviction took place on 22 October. Mr Beal made a claim for the deposit, 3 x deposit award and breach of quiet enjoyment. The Court awarded all this, with £500 for breach of quiet enjoyment. The Court observed that it was ‘quite clear’ that s.214(3) meant it must award the 3 x deposit and that ‘it is very silly of landlords’ if they don’t take notice. Interesting in that this appears to be a retrospective claim, rather than made during the course of the tenancy.

 

Universal Estates v Tiensia, Croydon County Court, 23 February 2009. Ms Tiensia was granted an AST on 19 May 2008 by UE. The rent was £2400 per month. A deposit of £2400 was paid in installments, with the last on 4 June. Ms Teinsia was in rent arrears from the start due to HB problems and the landlord served notice relying on grounds 8, 10 and 11 immediately after the second month’s rent was due. Ms Tiensia defended the possession claim and counterclaimed for the deposit and 3 x payment. The landlord registered the deposit with Tenancy Deposit Solutions Limited and faxed the certificate to Ms Tiensia.

The terms of the TDS Ltd scheme stated that the deposit must be protected within 14 days of being received from the tenant and details provided. On application for summary judgment, the DDJ held that the ‘initial requirements’ of the scheme itself (as well as s.213) required the deposit to be protected within 14 days. This requirement could not be satisfied once the 14 days had passed. 3 x deposit ordered.

Depending on the wording of the terms of the particular tenancy deposit scheme (and I believe that they are broadly similar on this point), this is a good counter argument on the late compliance point. If the landlord has not protected the deposit within 14 days of receipt and the terms of the scheme are that they must, then they quite simply cannot comply with the ‘initial requirements of an authorised scheme’ as per s.214(1)(a) and (2)(a). The details of the scheme itself are therefore important to check.

 

The law states

(2) Subsections (3) and (4) apply if on such an application the court—

(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b) is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(3) The court must, as it thinks fit, either—

(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(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.

 

So as well as returning the deposit (or protecting it) the court MUST ALSO reward compensation.

 

Which if you think about it, the landlord has broken the law so therefore just putting it right wont necessarily be good enough, you have to pay the consequences for breaking the law.

Edited July 1, 2009 by natalie

[natalie]

Oh and my landlord tried to claim his failure was down to an administration error.. and so I countered this by the fact that he charged me administration fees.

[natalie]

Forgot to say, those cases arent actually case law, the judgements arent binding on other judges, but they do illustrate how judges are thinking and interpreting the Act.

[DisgruntledTenant]

Natalie, thats for this, its all very helpful,

 

I was an ex-tenant.

 

Did the LA/LL try and argue that because you werent a tenant, you couldnt apply at all?

 

IE where it says "Where a tenancy deposit has been paid ... the tenant ...may make an application to a county court on the grounds"

implies tenant only... not ex tenant....

 

(3) The court must, as it thinks fit, either—

(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,within the period of 14 days beginning with the date of the making of the order.

(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.

 

Here, did the LL/LA try and argue that because the judge couldnt order (3)(a) or (b) he therefore couldnt order (4) due to the "must also" part? If so, how did you counter this?

 

Thanks!

 

Thanks again....

[natalie]

No, neither of those 2 examples were even brought up, and considering my landlord hired a barrister from Arden Chambers, I think if she thought it would have washed she would have used it.

 

My judge thought the law was very clear, that if landlords failed to adhere to the law, by protecting the deposit on time and in the correct manner, then as well as being made to put it right (by either protecting the deposit or by repaying it) then must pay a penalty of 3 times the value of the deposit.

 

The guy I sued was actually the letting agent, rather than the owner of the house, too.. so they had plenty of issue they could take up.. but none of them stood up to the fact that the deposit hadnt been protected, and as he was acting as and on behalf of the house owner, then he was liable.

[Kentish Lass]

I am surprised you were able to sue the Agent as I understood that the legislation specifically applied to the Landlord.

 

A very interesting posting. Thanks Natalie.

[DisgruntledTenant]

I am surprised you were able to sue the Agent as I understood that the legislation specifically applied to the Landlord.

 

A very interesting posting. Thanks Natalie.

 

According to the Act....

 

(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies,

Natalie... thanks again, all very very helpful. And congrats on your win!

[Kentish Lass]

Thanks - I thought the Landlord was left holding this particular baby!

[DisgruntledTenant]

Thanks - I thought the Landlord was left holding this particular baby!

 

Here's a question.

 

Say you pay the deposit to the LA who then gives it to the LL who then doesnt protect the deposit.

 

Can the tenant sue both the LA for the 3x and also the LL for the 3x??

As both fall under the definition of "Landlord" and both have received the deposit and both have not dealt with the money as they should have....

 

Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.