TDS claim counteracted with HUGE counterclaim

[unhappy ex tennant]

Sorry, deposit was indeed £370. So £370 + 3 x £370.

[unhappy ex tennant]

Just checked with court and they still haven't filed any papers!

What are they playing at!?

[Guest Alison82]

My case was like this and we still won, all we had to pay for was a replacement bin and some holes in one wass from some screws (becasue we acknowlaged this)

 

You should be ok, they still didn't protect your deposit, my judge laughed at their counterclaim, as yours probably will

 

Good luck

[lawdoctor]

Hi unhappy ex tenant

 

Firstly, from the information provided I am of the view that your case is sound in law and your prospects of success are strong. I do believe that your case can be distinguished from the recent High Court decision and as such should not be burdened or favoured one way or the other by the decision in that case.

 

Moving on to your concern i.e. what would be the position if your ex-landlord protected the deposit before the hearing on the 26th feb 2010 (Friday)? I am of the firm view that any such alleged registration of the deposit after the tenancy has ended would not be in accordance with the schemes rules or indeed with the provisions of the statute. I am well documented with my views in this regard already posted on this thread and these views are supported by other contributors.

 

I would, as a matter of urgency if I were you, contact via email the three schemes and make a statutory request for information reaffirming that your deposit relevant to the tenancy is not protected at the time that you make this request and further seek urgent clarification that were the deposit to be protected after the tenancy ended that this would or would not be in accordance with the schemes rules as provided for in statute.

 

The prescribed information that is required to be provided to you under the legislation and the schemes rules provides certain information to be given to you in the prescribed form or a form substantialy to the same effect i.e. information pertaining to amongst other things the provisions of sections 212-215 and schedule 10 to the 2004 Act.

 

It is my view that very very often when information is provided to fulfil this legal obligation the provisions of schedule 10 are rarely laid out in form and as such in my view could not be said to be the prescribed information in the prescribed form or a form substantially to the same effect. However this is only my view and no doubt these issues and others will come out in the final legal 'wash and rinse' as it were. Given your deposit was not protected and presumably as such you received no such information we need travel no further down this road.

 

Schedule 10 section 9(1) and (2) provide you with a statutory right to request information from a scheme administrator as to whether or not a deposit is being held in accordance with the schemes rules. This provision demands that the schemes administrator responds to such a request as soon as is practical.

 

For your convenience I reproduce below the relevant provisions;

 

Notifications to tenants

 

9 (1) Every custodial scheme or insurance scheme must provide for the scheme administrator to respond as soon as is practicable to any request within sub-paragraph (2) made by the tenant under a shorthold tenancy.

 

(2) A request is within this sub-paragraph if it is a request by the tenant to receive confirmation that a deposit paid in connection with the tenancy is being held in accordance with the scheme.

 

I am not personally aware of any such request being made under the provisions quoted above but can see no reason in law for the scheme administrator to refuse a request if made under schedule 10 section 9(1) and (2) as mentioned above.

 

You should head up any request to the scheme administrators with the words TIME IS OF THE LEGAL ESSENCE (COURT CASE 26TH FEBRUARY 2010) and request email response. Limit your request simply to confirmation that the deposit was not protected and the request for confirmation that a deposit registered after the tenancy ended would or would not be held in accordance with the schemes rules.

 

I am sorry if I have droned on somewhat but your approach in the regard with which we speak may and could be of considerable value or of course concern to many others in the future.

 

Hope I have been of some assistance, please let us know how you get on on Friday and the very best of luck to that end.

 

Regards

Lawdoctor

 

Edited February 23, 2010 by lawdoctor

[unhappy ex tennant]

No, no! Thank you very much for your reply. We appreciate any advice in it's entirety.

 

I have emailed each scheme as you have suggested.

[lawdoctor]

Hi again soon to be 'happy' ex tenant I feel!!

 

The tenancy deposit legislation contained in the 2004 Housing Act is a strict liability matter and as such should not be subject to counter-claim. In particular, when the offending defendant party is in breach of the legislation and in turn therefore in breach of statutory duty.

 

I would suggest that when your time comes on Friday you politely raise this point with the judge on the day and ask that the counter-claim be struck out as an abuse of the court process. There have been county court decisions already to this effect and I am sure that one of the regular contributors would be able to point you to one which you can cite to the judge who, although not legally duty bound to follow such a decision, can do.

 

I do not wish to unduly raise your hopes for Friday but from what I know of your case your ex-landlord's position appears to be somewhat untenable in both his/her scope to defend your claim or successfully prosecute in such circumstances the counter-claim.

 

In the event that you are successful in your claim and of course your defence to the counter-claim, you should be mindful to request of the court your costs, in addition to the issue costs, for your costs as a litigant in person. The court as a wide discretion with regard to costs even for a case proceeding on the small claim track.

 

Matters to which the court would have regard in deciding to make any costs order would include things such as the conduct of the parties before during and up to the time of the trial. The landlord not attending the trial, which could be a possibility in your case, would weigh heavily in favour of a costs order being made.

 

Work out a rough but conservative amount of time you have spent preparing for the case including research time, travel etc. break this down into a schedule of total hours and request that the court, in the event that you are successful, order costs at the rate of £9.25 per hour. Do not attempt to exaggerate the hours spent as this will not find favour with the judge and as I said above the court has wide discretion regarding costs and does not have to award them at all even to a successful party.

 

So, litigant in person costs can be recovered in certain circumstances but the rule is 'if you don't ask you won't get'!

 

Once again, best of luck.

 

Lawdoctor

[unhappy ex tennant]

Thanks Lawdoctor. We'll be having a last 'tot up' this evening.

 

We are also travelling approx 130 miles to the court, due to our new address being some distance away from the old place. Do we ask for that or are we then sounding like we're taking the Michael?

 

On the hours spent thing, what is a reasonable amount to say? I'd have thought it is at least 20 as this whole business is something neither of us knew much about at all prior to it. But at the end of the day, I'd rather not ask for anything rather than sound like we're trying to milk them dry!

 

Anyway, Landlord filed his papers yesterday. Yes, 2 days before the case. They submitted a few photos supposedly taken the day after we moved out showing a few bits of mould, indentations in the carpet where their sofas live and a couple of marks on the carpet that could have been taken anywhere to be fair.

 

Unsigned, undated, brief inventory with no provision for condition of items at the start of the tenancy.

 

Here's the good bit and I need to concentrate a bit on my wording tonight:

Landlord states that flat has now been renovated again since we moved out and is now in pristine condition. The letting agent photos do indeed show this.

Unfortunately for them, they have not submitted a single bill/invoice or even quote for work required after we moved out. They have an estimate from a company for various works including replacing the lino in the kitchen. Our photos and the letting agent photos show that the lino has not been changed and combined with the fact there aren't any invoices for work carried out, it's pretty obvious to us at least that the flat didn't need any work, hasn't had any work and the land lord is not intending to do any work.

 

He has submitted one of our own photos that we submitted last week as it shows a tumble drier that we bought while we were living there for when we'd moved. We didn't wash our clothes at the property due to the communal washing machine giving me a belt in the first couple of weeks of being there. The photo also shows the dehumidifier sat next to this tumble drier that we used to have to use to bring the humidity down in the flat.

The landlord has identified the dishwasher we fitted and the tumble drier as the causes for damp and mould.

An independant inspection would confirm that the flat is insufficiently heated and has no mechanical ventilation. Am I right in thinking it's their responsibility to get the proof that it is us that have caused the mould? And the landlord just stating that we had a dishwasher, tumble drier and 'never had the windows open' is not enough?

 

How late can documents be submitted that would be deemed too late to be used? We obviously know we still have a very strong case with or without their papers. We were a few days late in submitting ours, but it still gave them a good week to work through them (and plagiarise them!).

We don't really want the case adjourned due to us both effectively being late in submitting documents as I suspect a judge could/may do.

I had to take yesterday afternoon off work to give us as long as possible to study their docs and I'm ready to leave work today due to nerves!

 

The landlord has admitted in his covering note with the documents that our deposit was not protected due to an oversight on their part, so at least that bit is easy.

[unhappy ex tennant]

Apologies for ridiculously long post!

[lawdoctor]

Hi

 

Apologies are definately not required!

 

I would like to wish you good luck and of course I do, but in your case 'luck' in law seems to me to be required only by the defendant!!

 

As I have said many times "moral arguments weigh very lightly on the scales of justice". The defence of "oversight" in not registering the deposit is neither a defence in law nor a moral argument!

 

To my mind your ex-landlord's counter-claim has no realistic prospect of success and to that end I should not overly concern yourself. Of course naturally you should bring the relevant documents to court to rebut your ex-landlord's fanciful claim.

 

Altough I have said the tenancy deposit legislation is not subject to counter-claim it is possible that a judge exercising his discretion to provide finality to the proceedings could briefly view the matter and dispose of it so as not to allow the likelyhood of it proceeding as a seperate claim on a seperate day.

 

This power that the court holds can be found in the Civil Procedure Rules part 1, The Courts Overriding Objective, and further information can be found in part 3 of the Rules most notably 3.1(i). Should the court adopt this approach I submit in the circumstances it would be to your advantage (don't worry).

 

With regard to the 20 hours, this is indeed conservative and a court would give you credit for your honest approach. A qualified solicitor handling a claim of this nature would in my view be seeking his costs on a ratio of 9-12 hours at circa £200ph + vat. I would add your petrol costs to and from the court to your 20 hours.

 

Don't forget when you are having your final 'tots' (I presume you meant a pre-celebratory drink?) tonight to bear in mind the drink driving limits!!

 

The hurdles that your ex-landlord have to overcome seem to me to be, the need to satify the court that without 'lawful' excuse he failed to register the deposit as is a requirement in law, further he failed to provide a signed inventory and schedule of condition at the commencement of the tenancy. Then he needs to persuade the court to indulge him in his unlawful actions and negligence and to punish you for his failings - a very tall order indeed - ladies and gentlemen I rest your case! Just trying to lighten your mood, enjoy the experience because when all is said and done without experience we have nothing.

 

Lawdoctor

[unhappy ex tennant]

That's put a big smile on my face Lawdoctor.

 

Thanks for the support and we owe you a big one for your advice.

 

You have been a massive help, as has everyone who has replied has to be fair.

 

I just want today to be over so we can just get stuck in.

[unhappy ex tennant]

Last couple of questions:

 

How do we structure what we want to say? Do we start off with everything that we are claiming for broken down into value of each item, why we are claiming, our defense to the counter claim or what? How do we actually make sure we cover everything, without sounding greedy and lingering on the 'how much we are claiming for' bits?

 

Would i start with stating why we think we have a case for sueing for TDS breach and go into ins and outs and then at the end state what it is exactly we are claiming for? And then once that is cleared up, go into why we think the counterclaim is false, unjustified etc. and invalid for the various reasons?

 

I'm searching for info, but can't really find much guidance on how to structure what we will actually say on the day.

 

Edit: Ooh, also, do/can I claim for a days lost leave from work?

[lawdoctor]

Hi again

 

There are only two rules which I recommend in these circumstances although they perhaps have many combinations, they are as follows;

 

1. Honesty

 

2. Brevity (short and politely to the point!)

 

Allow me to elaborate, it is possible to get moody judges after all we all have our off days. Generally speaking County Court Judges give lots of leeway to litigants in person.

 

The court proceedings are informal and generally very user friendly. Little tip - tell the judge that this is your first time in court (if of course it is) and that you have even had to ask the usher how to address him! You will find that the judge will be sympathetic and lead the proceedings for you.

 

Have all your papers in order and number them. Keep a main numbered sheet which will give you easy reference to any document in your bundle (court papers and evidence docs). Do not interrupt the judge or argue your points until invited to do so.

 

By the way, the correct address to a District Judge in the County Court is either Sir or Madam.

 

As I have said before, enjoy the experience it is not anywhere near as daunting as you might think.

 

Lawdoctor

[lawdoctor]

Hi Unhappy ex tennant

 

Hope you don't mind if I hijack your thread for a little, probably illegal, 'cyber gambling'?

 

I have, as gamblers apparently do, nailed my legal colours to the mast, as it were, in your case - so with your leave I will post the odds as I view them for all and sundry to wager their hard earned grey 'cyber matter' on.

 

So the odds for any takers are as follows in the 'Unhappy ex tennant Legal Handicap Stakes'.

 

Runners and riders as previously posted. All bets are first past the post subject of course to any appeals!!

 

Antepost odds:

 

1-3 The claimant wins outright

6-4 The defendant fails to turn up

11-4 No result on the day

6-1 A replay or appeal

66-1 The Judge orders Lawdoctor to be reprogrammed

 

Each way bets are not allowed and the Judge's decision on the day is final! Of course subject to all appeals!

 

Place your bets before the decision is known, which will hopefully be posted by our host ex- 'unhappy ex tennant'.

 

For those gambling minded people amongst you who will have noted that no odds were posted for a victory by the defendant (and claimant for the purposes of the counter-claim) you should bear in mind that it is illegal to offer and entice people to bet on a non-runner!! Just my view of course!

 

Lawdoctor

[cookie0117]

Ill take not turning up, I wouldnt if I had been so stupid as to counterclaim like that!!

 

More seriously, I know someone who is having damp issues, blamed on them so am intersted to know how that bit came out.

[unhappy ex tennant]

Ok so:

 

Judge awarded them £400 towards decorating, due to the mold being caused by us fitting and using a dishwasher and 'my lifestyle'. (Other party claimed that we never had the windows open at all during our entire 9 month tenancy and the judge believed them)

Awarded £100 for cooker and fridge cleaning. (We admitted we'd forgotten to clean the cooker, but fridge was never claimed for anyway)

Awarded £38 for missing fridge door shelf, despite it never being fitted when we moved in.

Awarded £87 for changing flat door lock and supplying 3 keys.

 

Obviously gave us the deposit + 3 x deposit minus these items.

 

So £850 ish in our favour, refused the landlord's request for appeal, although he stated that'll he'll be seeking advice and taking it higher.

 

Judge would not allow us to claim for any litigant in person amounts and said court costs would basically cancel each other out.

 

He did scrub out the majority of their counter claim including that for replacement of carpets and lino, replacement of cooker, replacement of front door lock and supply of 30 keys, and deep cleaning of the flat.

 

Landlord walked in with estimate for works, not a single scrap of evidence that he'd actually spent anything. His photos of alleged marks on the carpet could literally have been taken in any one of the 12 flats in the building that presumably have the same carpet. Not a single identifiable photo of the flat showed any marks on the carpet.

 

On the whole, utterly dissappointed with the judge's bias towards the landlord and not really sure what we're goign to do if he is granted appeal by the next judge up the ladder.

 

They went in and lied through their teeth about various problems and the judge sided with them. Not once did the judge take our word in our defence, even when we produced the photographs that showed that the lino had not been replaced and did not need replacing.

 

It was pretty unbelievable and we thought that the judge would've had more common sense. We were under the impression that the landlord would have to prove the damp problem with a survey report and the claim that it was caused by us using a dishwasher is just plain stupid and I am struggling to find a single reference to it happening before anywhere on the net!

 

It's a 200+ year old, sandstone house, with an open wet cellar beneath. Our flat is separated from the cellar with only the floor boards that make up our floor. he mould is on outside walls only, on the far living room wall and other far end bedroom wall in equal measure.

[lawdoctor]

Hi

 

Well what a mixed bag of results.

 

It is not surprising that you failed to get litigant in person costs as you failed to win outright. The judge, in such circumstances, is quite within his rights to make no costs order one way or the other.

 

I assume the judge made an order that you be paid the 3x deposit plus the return of any outstanding deposit within 14 days of the order i.e. 26th February 2010, less of course the sums ordered to your ex-landlord.

 

Assuming, as is likely, it was a district judge any appeal would be to a circuit judge of the same county court - which county court was it by the way?

 

Staying with the appeal issue, my view is that it should be you who is appealing the order with regard to the alleged property damage i.e. the counter-claim.

 

It may be that perhaps by now you have just had enough and will settle for the victory of sorts which you already own. These are of course, as you now well know, sometimes stressful and lengthy issues.

 

Post up the name of the county court for reference to future claimants.

 

Should you feel minded to appeal I assure you of my assistance and I would gladly accompany you. (Free of charge of course!).

 

Remember that many a decision arrived at in the county court where most civil claims are commenced are appealed and upheld by the High Court, the Court of Appeal (civil division) only to be overturned by the Supreme Court (formally the House of Lords). Of course before someone corrects me the opposite can also be the case!

 

Judges historically have been opposed to mandatory penalties and I believe the tenancy deposit legislation is a classic case in point.

 

Your judge appears to have attempted to find a just answer to the case before him, whether that is lawful on the facts that we know remains very doubtful however that is why we have avenues of appeal to higher courts.

 

Regards

 

Lawdoctor

[lawdoctor]

Read this;

 

Stankova v. Glastonbury 10th March 2008, Gloucester county court

 

At the hearing of the matter, District Judge Singleton ordered the landlord to pay £1800 +£75 costs, in respect of three times the deposit plus the court fee.

 

In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or any other arguments about the return or retention of the deposit. This was on the basis that a statutory scheme included arbitration for dispute's about returning or retaining deposit monies.

 

Lawdoctor.

[unhappy ex tennant]

Sorry I didn't reply sooner!

 

Thank you very much for the offer of further help should we need it and you are very generous in your offer.

 

For the moment, we're happy to accept the outcome and put it to bed. We are happy that we could win this outright though, concentrating on the point above.

We maybe did too much defending of the condition of the flat as opposed to highlighting the fact the landlord waived his right to retain any moneys when he failed to lodge the deposit with the TDS.

 

Not heard anything from the court yet.

 

Court in question was Pontefract County Court.

[lawdoctor]

To bed it is then........nite,nite.

 

lawdoctor.

[Steve__M]

I think I agree with lawdoctor on the apparent tendency of judges to look for a "just" settlement. Judges do not appear to like being told what to do (in regards to the 3x "fine"), and this one might have therefore looked more "favourably" at the LLs evidence to try and balance out what he regarded as a draconian penalty.

 

(I don't see there is grounds for appeal, because you need to identify an error in law).

 

Best of luck in getting the money out of the LL.

[pablodiablo]

Hi,

I have just recently won a case against my old landlord. It has taken 18 months all in however once heard by the county court the order was perceivd to be pretty clear cut and I was awarded 3 x the value of the deposit + the original deposit + relevant costs for travel, loss of earnings to attend hearings etc. The deposit was £1250 so it was a hefty thump for the landlord as you can imagine being well over £5k total.

 

Just for background, the landlord openly refused to pay the deposit into a recognised body, regardless of repeated requests for him to do so (to save any disputes later) and even links to dps etc by email for him to refer to. his reasons where because he only lived next door and it was easier to keep things friendly with him keeping it, further he had apparently checked with his solicitor who told him that he didn't need to protect the deposit (foolish).

 

around about a month after the court proceedings were issued against the landlord, he belatedly paid the £1250 into the scheme, however this made no difference to the outcome of the case. Although the landlords defence was based on naivity to the law (which was a blatant lie) and the advice from his solictor the judge made a clear ruling (although the judge didn't like it much as he personally felt it was a harsh penalty) against him.

 

At this point you must be thinking good for me i have £5k to buy that holiday in barbados - not so fast.

 

Firstly, although the landlord was ordered by the court to pay by a certain date there is actually nothing there to enforce it.

 

After speaking with bristol county court i was given a number of options and guess what? they all entail outlaying even more money in costs than i have already had to pay to get this far! Bearing in mind this guy owns at least 3 properties and a businesses and has no reasonable excuse not to have the refunds, i can either 1. ask the landlord to attend court to say why he hasn't paid, if he can pay and how? 2. instruct bailiffs to attempt to collect a payment/payments. 3. do nothing and the landlord will never have to put his hand in his pocket or be repremanded by the court for ignoring the order.

 

Further to this, although the terms of securing deposits quite clearly state that an award in this instance is a strict liability penalty and landlords cannot counter claim against tenants the judge in one of the preliminary hearings advised the landlord that the only way he could protect himself from this law would be to open a seperate case against me (surely a counterclaim) to recoupe and costs that he saw fit. And sure enough he did.

 

Obviously now i face fraudulent claims about damage to the property etc that clearly didn't exist at checkout (luckily i at least have some email evidence of this) which with some amazing stroke of coincidence is valued within pence of the £5k figure i was awarded! Not withstanding how obvious the landlords actions are, it still seems to be going to be heard in court. the landlord presumably intends to void a payment to me by winning the same amount from me.

 

We shall see what the outcome is, however i'm pretty sure if he wins even 1 penny this would directly contravene the legislation that s213 outlines about counterclaims sure making it very unworthwhile for anyone in the future to take this path against landlord.

 

sorry for the length, maybe it will prove useful to some. equally if anyone has any advice to me about how i get the sum i'm owed or get the landlords ridulous claim thrown out that would be great.

[noomill060]

subbing

[blackcatgirl]

A word of caution...

I took my ex-landlord to court for breach of the HA 2004.

He didnt protect money within 14 days

He didnt protect money 2 months later and said in an email to me that he "saw little point" in doing so

I filed a claim

Tenancy ended

He paid money into a scheme a month after tenancy ended

DPS put money in a suspense acct pending a court order for its release.

LL made a vexatious counterclaim - unsubstantiated with no evidence seen - I spent 11 months up to Court gathering evidence and witness statement etc (large costs)

 

Got to court and the judge dismissed my case even though she stated there was a breach in the HA 2004.

 

I got no costs award (nothing at all!) - no 3 times penalty - and no Court Order (only a consent order which I am awaiting the DPS to tell me if that is sufficient to at least get my deposit returned to me).

 

Any ideas how to appeal this insane judgement??