HELP!! Tenancy Deposit UNPROTECTED after 14 days *NEW*

[swisspie89]

This is our situation:

 

My partner and I moved into a room in a shared house on 24th August.

 

After finding out a few inconsistencies with regard to our landlord, alarm bells began to ring and I sought confirmation that my deposit was safe and nicely protected.

 

On 18th of September I asked my landlady if I could have the details of where my deposit was being held. I was met with; “its in THE scheme, I’ll get the accountant to forward the details”.

 

Since there are three different schemes, not just THE one, I emailed them all to enquire if my deposit was being held with any of them. All replied: No records exist with us.

 

Having informed her of my findings, I received a voicemail from her two weeks ago stating that the deposit was now in a scheme (so it wasn’t before as she had said) and that the details will be given to me by the DPS, not her.

 

To date, I have still received nothing detailing where my deposit is being held and I'm not about to go chasing her up to do something that she is obliged to do by law.

 

Where can I go with this? I understand that she had 14 days from my agreement to put it into a scheme or she could be ordered to repay 3x the amount etc.

 

It’s now 6 weeks since we moved in and I have had no details about it (I do believe it is in a scheme now - some 6 weeks later).

 

My concluding questions for the board would be this:

 

1) On the basis of my situation would my landlady be liable to paying me back three times the amount of my deposit?

 

2) If her voicemail is true and she did in fact protect my deposit two weeks ago when I questioned it: Can I still pursue this since she failed to do it within the initial 14 days?

 

3) How?

 

It may seem a little harsh, but consider this: We are now being harassed by her as a result. We now receive unannounced late night visits from random 6ft people claiming to be family members/ partners/ husbands, when confronted with this she just started shouting at my partner, she offered us our deposit back and the option to leave, we are visited every weekend by her and her 6ft brick house partner, I was told not to argue with her about things so petty!

 

Oh, and now we have learned that she is using two different names.

 

Needless to say, we are looking for alternative places to live...

 

Any help massively appreciated!!

[MrShed]

- Have you checked with DPS to see if the deposit is now protected?

- I assume that the landlord does not live in the same shared house?

[DisgruntledTenant]

If your deposit is now protected, you can try and sue your LL for the 3x penalty, but you have to bear in mind that if you lose, you pay her costs, which could be significant.

 

And given that the grounds for the penalty dont include the 14 days, it would be a pretty risky course of action.

 

The general consensus (I believe) is that if the deposit is protected before trial, then you lose.

 

Why are you worried anyways? Its protected.

 

I'd just make sure you have all the relevant gas saftey certificates etc.

[Steve__M]

If you do decide to leave, get a written agreement to terminate the contract.

[swisspie89]

Hi,

 

Wow - thanks for the responses!!

 

Mr Shed:

I am still waiting for a response from DPS. The reason I beleive it is now protected is that about a week ago a letter in a DPS envolope arrived at this property addressed to one of my landladies alias'.

 

No she does not live in the property. I also have my doubts about her address (outlined on the TA).

 

SteveM:

Will most definitely be following your advice!!

 

(fellow) DisgruntledTennant:

 

Kind of what I thought on my research. There are so many different opinions though. Some say she can protect it pre-court and avoid penalty. Others say, doesn't matter - the law was broken. The fact that she protected it pre-court only serves as evidence that she protected it too late.

 

If the deposit is now protected as a result of my pestering - I am not worried.

Its the principle. Its the harassment I've received as a result of asking for something that she told me she was going to do when I moved in.

 

I was under the impression that it was irrelevant if she put it in a scheme after 14 days. The law had already been broken so she must liable to prosecution (I got a speeding ticket the other day - I can't appeal that and say "oops, you caught me - i'll drive slower from now on if you don't give me a fine").

 

If this is the way the legal system works I might go and help my self to a new TV from Currys - I'll put it back if I get caught stealing it though... no one will do anything right?! After all I will have returned it before I get taken to court.

 

We are moving out at a major inconvenience and its because of the harassment received as a result of me asking for proof of protection. I don't see how she can be allowed to act like this.

 

Is the law not there to come down hard on dodgy landlords and sting them when they break it?

[MrShed]

I was under the impression that it was irrelevant if she put it in a scheme after 14 days. The law had already been broken so she must liable to prosecution (I got a speeding ticket the other day - I can't appeal that and say "oops, you caught me - i'll drive slower from now on if you don't give me a fine").

 

Not a good analogy.

 

It is in breach of the law, but there is no provision for the three times fine if the deposit is, in fact, protected - even if this is out of timescale.

 

If there are differeing opinions, there are differing opinions - but I cant see how, as this is a fact writting in statute (Housing Act 2004).

[DisgruntledTenant]

Hi,

 

(fellow) DisgruntledTennant:

 

I was under the impression that it was irrelevant if she put it in a scheme after 14 days. The law had already been broken so she must liable to prosecution (I got a speeding ticket the other day - I can't appeal that and say "oops, you caught me - i'll drive slower from now on if you don't give me a fine").

 

Dont worry mate, I'm in a very similar position to yourself. My landlord never protected the deposit, and only returned it after we lodged the claim.

 

You're right about the law being broken re the 14 days, but the problem is that there is no punishment listed in the act for a landlord that fails to protect the deposit within 14 days. (This is my interpretation only).

 

The law states clearly that the 3x penalty applies (only) on the following grounds:

 

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.

 

Clearly (b) doesnt apply as the deposit is now protected.

 

As for (a), its clear that 213(6)(a) has been complied with if you have received the releveant information. And the initial requirements of a scheme have also been complied with. If a landlord can protect a deposit after 14 days, then clearly these arent part of the initial requirements of the scheme.

 

So there are no grounds for the penalty if the deposit is protected. Again this is my interpretation, but given you are likely to have to pay costs if you lose, is it worth the risk, and 6 months of hassles?

 

I know it sucks, and landlords can be pricks, but it is how it is I'm afraid.

 

Did you get the appropriate gas safety certificates?

[stoneman]

Not a good analogy.

 

It is in breach of the law, but there is no provision for the three times fine if the deposit is, in fact, protected - even if this is out of timescale.

 

If there are differeing opinions, there are differing opinions - but I cant see how, as this is a fact writting in statute (Housing Act 2004).

 

So are you saying that it doesn't matter if it was finally protected, it was out of timescale (ie, tenant having to have notification of which deposit scheme it is in within 14 days of occupancy) and therefore is a straightforward offence?

SP, have you yet received the notification of which scheme it is in? You say it is now covered, but you haven't received anything yourself.

And I think you have to have the energy efficiency certificate as well.

Edited October 8, 2009 by stoneman

[DisgruntledTenant]

DT, have you yet received the notification of which scheme it is in? You say it is now covered, but you haven't received anything yourself.

 

Nah mate, as I said, it was never protected for the duration of the tenancy, so I lodged a claim, and the LL then returned the deposit in full.

[MrShed]

So are you saying that it doesn't matter if it was finally protected, it was out of timescale (ie, tenant having to have notification of which deposit scheme it is in within 14 days of occupancy) and therefore is a straightforward offence?

SP, have you yet received the notification of which scheme it is in? You say it is now covered, but you haven't received anything yourself.

And I think you have to have the energy efficiency certificate as well.

 

I;m not saying that at all.

 

I'm saying that the fact it was protected prevents any fine being issued, under HA 2004. Fact.

[swisspie89]

DT: No such certification has been provided. We found the property in loot and have signed an Assured Shorthold Tenancy. It's totally private so I'm not sure if that puts us in a bit of a grey area.

 

MS: Calm down!! I cam here for friendly advice and to challenge peoples perceptions of what I can do if anything. Not for argument.

 

Interestingly - I was in company accommodation with my previous employer where by I was required to pay a security bond of £1000. This was definitely unprotected from beginning to end. Maybe I'll have more joy pursuing this one. I'll make a seperate thread.

[MrShed]

where was the argument? I just clarified what I was saying!

[MrShed]

Company accomodation is a very very different kettle of fish by the way - I doubt you will have any joy pursuing it, as it was probably a licence as opposed to a tenancy, which has no tenancy protection requirement.

[DisgruntledTenant]

If you dont have Gas Saftey certificates, and want to get back at your landlord they can get in alot more trouble for not having provided these. Even prosecuted for it. HSE warns landlords about gas safety following prosecution

[swisspie89]

hmm. Interesting. Cheers guys.

 

Why is there a 14 day period stipulated in the Act?

 

If the time it takes for the LL to protect a tenants deposit is irrelevant, why is it necessary to state "must be within 14 days".

 

Essentially this suggests that a LL can hang onto a deposit in an interest bearing account for as long as he/she chooses, before putting it in a scheme at the last minute then paying it back or attempting to withhold. All boxes ticked. Big loop hole it seems - so long as it was protected at some point

 

Bit of snooping around and I found a BG safety certificate. TBH i'm not in the habit of getting back at anyone unless I will benefit, hence my interest in the TDS.

Edited October 8, 2009 by swisspie89
.

[DisgruntledTenant]

Essentially this suggests that a LL can hang onto a deposit in an interest bearing account for as long as he/she chooses, before putting it in a scheme at the last minute then paying it back or attempting to withhold. All boxes ticked. Big loop hole it seems - so long as it was protected at some point

 

Thats correct. Unfortunately this is how the act is worded.

[MrShed]

hmm. Interesting. Cheers guys.

 

Why is there a 14 day period stipulated in the Act?

 

If the time it takes for the LL to protect a tenants deposit is irrelevant, why is it necessary to state "must be within 14 days".

 

Essentially this suggests that a LL can hang onto a deposit in an interest bearing account for as long as he/she chooses, before putting it in a scheme at the last minute then paying it back or attempting to withhold. All boxes ticked. Big loop hole it seems - so long as it was protected at some point

 

Bit of snooping around and I found a BG safety certificate. TBH i'm not in the habit of getting back at anyone unless I will benefit, hence my interest in the TDS.

 

A 14 day period is stipulated "coz it is".

 

Many of us have issues with the wording of the HA2004, it wasnt truely thought through.

 

However, it is what we have.

[stoneman]

I remember when this scheme first came out there seemed to be wins coming in at a good rate, even when the LL had protected the deposit after finding that they were being prosecuted for not doing so. Judges were saying that protecting after the fact was no defence. Seems some LL have now taken on legals to help and they have found the wording of the act actually helps them out. No point in this act at all then, as soon as you pay £150 to start procedings, LL knows he/she is being procecuted, protects your deposit, you lose £150.

MrShed, I am sorry I did not understand your previous answer. The wording confused me. I understand now

[bedlington83]

I'm saying that the fact it was protected prevents any fine being issued, under HA 2004. Fact.

I'm not sure that's fact at all. Let's say the deposit is protected after (say) 28 days. No offence has been committed. But what if either the initial requirements of the scheme are not complied with or the prescribed terms are not given to the tenant within 14 days of receiving the deposit? Is this not an offence under 213(3) or 213(6)b that gives rise to the 3X penalty?

[MrShed]

Correct.

 

I am commenting on the 14 day breach, not the prescribed terms breach.

[DisgruntledTenant]

in other words, protecting the deposit includes providing the prescribed info to the tenant.

 

you need to do both before court to avoid penalty

[swisspie89]

I cannot believe how vague this law is!! Some cases show a clear cut "you failed to comply within the 14 days - law - broken - cough up". Others show that so long as the LL protects before court, they will avoid penalty.

 

My LL has now informed me that she has protected my deposit and given me a Deposit Protection Certificate from mydeposits: Tenancy Deposit Protection for Landlords & Agents

 

My enquires into the other custodial scheme brought a response saying;

 

"I can confirm a deposit has been registered with The DPS in your name for the above address. However, the funds have not yet been received, therefore the deposit is not yet secure.".

 

Now I'm confused.

 

Furthermore, her reluctance to give me a correct address continues. On the DPC she has registered her home address as the one we are renting.

 

The harassment continues - another 6ft+ man visited with her over the weekend (unannounced again "to do the cleaning") More scare tactics?

[MrShed]

Just to clarify.

 

You are still renting the property, and have not been given a proper cotnact address in England and Wales for the landlady?

[swisspie89]

There is an address on the TA but we have our doubts, especially when we have learned that she is using multiple names.

 

She comes to the property to collect her mail and has a lot of her personal things such as credit cards, bank acounts etc registered here.

 

Then on the DPCertifiace she has sited her adress as being the one we are renting.