Deposit not protected LL send me counter claim

[skiruban520]

Hi,

 

I stayed in a apartment from 12-nov-2007 till 31-may-2010. i have given him 1 month notice before i vacated and he did not come to inspect the house while i left. he refused to return my deposit and that time i found that he has not protected my deposit hence i made a claim for 3X deposit using MCOL for £2700.

 

Now my landlord has send me a counterclaim for £3400 making false statement that the house needs reparing and cleaning.

 

I have a signed tenancy agreement with inventories and those were there in the house in a good condition. also in the tenancy agreement there was no basline condition of house other then the listed inventory.

 

now i have been sent a questioner by court to fill in. needed advice on the following.

 

1.) can i send all the evidence while responding to court questioner.

2.) i had my work collegues who inspected the house when i left and they are ready to provide a statement as witness on the good condition of house.

3.) he has created mental agony for me by stating all false information in his counterclaim, is there anything that i can do for that.

 

your response is appreciated.

[skiruban520]

can anyone please help me on how to respond to counter claim>,

[Steve__M]

I am not a lawyer, but at this stage I think you need to give relatively brief details why you are defending the claim.

[Sali]

As a LL I would say that your LL is trying to intimidate you. It is for the LL to prove that you as the tenant caused damage. If the inventory does not list the state or condition, then the LL is on hiding to nothing. You just have to stand your ground and argue that this was how it was when you started the tenancy. How is the LL to prove otherwise? That is why it is worthwhile paying for a private, independent co. to do a proper check that both parties sign, which the LL pays for on entry and the tenant pays for on exit.

 

Provide information to the court on your own claim. Ring them up if you are unclear on what they require.

 

If your LL does take you to court, (and I doubt this very much), then be prepared to defend yourself. Enlist your witnesses.

 

I can understand how stressful this is for you, but don't be a victim of this bully. We want to be rid of LLs like this.

[Sali]

I would also point out that if your deposit had been protected as per the law, you would have had the opportunity to take advantage of the dispute resolution service over the 'alleged' damages.

[Steve__M]

I would also point out that if your deposit had been protected as per the law, you would have had the opportunity to take advantage of the dispute resolution service over the 'alleged' damages.

 

Yes, I forgot that. Good one! Use it as a reason to ask for all costs.

[skiruban520]

Thanks everyone for the response, iam having an appointment with CAB tomorrow on how to defend his counter claim. I have collecting all the proof now.

[skiruban520]

Hi,

i have the details of m counter claim and it is a long statement by my LL how do i write a defence statement for the same while submitting the allocation questioner . If anyone interested in helping me , please let me know i can send you the counterclaim statement in e-mail.

 

Regards,

Kiruban

[GuidoT]

You must issue a defence to the counter claim within 14 days of service (CPR parts 20.3(3), 12.3(2), 15.4(1)) otherwise judgement can by default on the counterclaim, it often gets overlooked on counterclaims.

 

The AQ and defence to the counterclaim should be treated separately by you.

 

If you require assistance you need to post your defence here.

[Webranger]

Skiruban520: I've only just seen this, but I'll help you if I can. You'll see on this forum at http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/244224-tenancy-deposit-protection-first-6.html - post 116 that I was able to help a landlord who was being taken to the cleaners by unscrupulous claimants.

 

As stated above by others, you have to supply to the court (and to the landlord, don't rely on the court sending him a copy) a full defence of the counterclaim. Note that this is one action and you are the Claimant and both claims will be considered together.

 

Note, too, that as at present he has not protected your deposit nor returned it you are without doubt able to claim the return of deposit plus x 3. You mention your claim as for £2,700 which indicates that the deposit was £675. If it was £900, then you should amend your claim to £3,600. The court staff will tell you how to do that at the same time as you file further details of your claim and your response to the counterclaim.

 

I advise you to make both further details and defence as full as possible. For the former you need to attach a copy of the Tenancy Agreement, the receipt you have for the deposit, the list of rent payments you have made, what evidence you have that the deposit was not protected, any evidence you have that the LL refused to repay the deposit.

 

For the defence to counterclaim, you need to attach the inventory, the statement(s) from your work colleagues, and any photos you might have that show the state of the property at beginning and end. Your statement should be clear that you deny his claim in its entirety and point out that he failed to attend when you vacated the property (I assume you gave him a time).

 

He cannot claim for wear and tear and you were there for 2.5 years, so he would have to try and prove damage on your part or that he had to bring in a firm of cleaners and decorators because the mess you left was excessive. Really, by the sound of it, he has no chance. For not protecting the deposit the court will already be prejudiced against him.

 

Be aware that if he bothers to get decent advice and has any sense, he will repay your deposit before he comes to court and will drop the counterclaim. In that case the court should (but might not, see the other forum thread) say you cannot claim the 3 x penalty. However, it will be able to award your costs and loss of earnings for court attendance, so don't drop the case.

 

Incidentally, when you contact the court staff, point out that this case should be multitrack not small claims. I don't know what practical difference it makes, but that is the form, so tell them.

 

All the best with this. It will take time.

[skiruban520]

Thanks Webranger for your detailed response. I have prepared the defence for his counter claim. Also, can you please tell me some reasons why this case should be mutitrack and not small claims since i need to fill that up in my allocation questioner.

 

I will be grateful if you can review my ****erclaim statement and help me how to file defence statement for counterclaim along with allocation questioner.

 

Thanks,

Kiruban

[Webranger]

Multitrack is what the upper courts have determined but county court staff don't seem to have taken that on board, so just tell them to look it up.

 

As GuidoT said, post your counterclaim and revised claim here and we'll comment. Do you have the docs and witness statements ready?

[blackcatgirl]

Please read my "Help!!" post before you incur vast cost.

I am a tenant and just lost in Court... no costs award... not even defending against a vexatious counterclaim by landlord.

Be very careful

[Webranger]

Skiruban520 sent me a private message to which I responded advising him to file an amended claim and a Defence to the counterclaim and THEN to make an offer to LL that if he repays the deposit and the court costs to date and withdraws the counterclaim, Skiruban520 will withdraw the claim.

 

blackcatgirl's experience highlights the wisdom of my advice - litigation is expensive, time-consuming, emotionally destructive, and very uncertain so a reasonable settlement is always the best course to pursue.

 

This prospect of wringing 3 x deposit out of landlords is proving a siren's call to some people. Beware the rocks!

[blackcatgirl]

Definitely emotionally destructive, and with no costs awarded am financially ruined too.

 

FYI I made a Part 36 offer to LL only a couple of weeks after filing the claim, but they refused it and continued with their counterclaims for damages etc only to drop that at court.

 

Will update after I have more news re an appeal.

[Chesters1981]

Hi there I'm just wondering at what point you can file a court claim for not having your deposit held in a scheme ? My

landlord has just done an inspection and has made noises about holding money back for things I consider wear and tear I.e a few small scuffs to magnolia Walls and two small stains on the carpet. I have been here over a year with a toddler and have only just found out about the scheme and am sure my deposit isn't held in one.

[Webranger]

You should know if it is protected because part of the law is that the tenant must be given the necessary information properly set out, so the schemes all provide a sort of certificate with that info. So even if a deposit is protected, the lack of such info provided to the tenant is technically a breach,

 

Write to your LL and ask him why he has not provided the information about deposit protection required under the Housing Act 2004. Say that unless he provides that information within 7 days (but make sure he is not on holiday first) you will assume that he is determined to remain in breach of the law and is therefore liable to pay the very severe penalties provided in the Act and you will take the necessary legal steps.

 

Just that, no more detail or specific threats. If he contacts you and asks "what on earth are you talking about?" send him to mydeposits: If you get no response at all, then you will need to send him a pre-action protocol letter before actually going to court. Come back here and someone will provide a sample wording for that.

 

This process is designed to get your deposit protected WITHOUT having to go to court - see my posts above.

 

Once your deposit is protected LL will have to justify any retentions when you leave. Wear and tear is, of course, a very subjective assessment.

Edited July 23, 2010 by Webranger
minor additions

[skiruban520]

Hi All,Thanks everyone for the response. I got an Judgement order in favour of me and land lord was asked to pay me3x deposit plus fee (£3120). Now LL had sent me a cheque for £900.But he has applied for variation order in court statting he wantsto pay the remaining amount in installments of £50 per month.I would like help on responding to that order for him to pay the remainingamount in full within a month. Please help

[Webranger]

Congratulations on the success of tenacity. I'm very dubious about 3x deposits in many cases, but where the LL has acted like a real ****** he/she deserves a heavy penalty, so I'm pleased for you.

 

I'm no expert on this question, but the court office should help you on what you can do - not what you should do because they cannot give legal advice but they can tell you the alternatives open to you.

 

Certainly you should oppose this request - £50 a month is laughable.You could let LL know that you will give your response in court if he/she shows court accounts and bank statements that prove LL doesn't have the money. In that case, tell court you will accept 90 days from judgement, no more.

[MrShed]

Given recent case law, I am absolutely amazed that you won actually.

[Ed999]

Mr Shed, this poster and others who I have been contacted by all have one thing in common, which they neglect to explain unless questioned.

 

All the cases which have been brought to my notice turn out to have been decided prior to May 19th, the date on which the Court of Appeal decided Gladehurst Properties Ltd v Hashemi.

 

 

The o/p is likely in for a severe disappointment, because if this case ends up in front of a judge the landlord is likely to unexpectedly receive leave to appeal, as has happened to other tenants who thought they were on a winner.

 

The o/p may be better off accepting the landlord's offer of monthly installments.

 

Contesting the offer means going before a judge, and that may have unforseeable adverse consequences now that the Court of Appeal has ruled out these pemalty awards of three times the amount of the deposit in most cases.

 

 

In this case, the court claim was begun - and the court hearing took place - after the tenancy had ended. The deposit was never protected.

 

As a result of Gladehurst, it is clear that a claim under section 213(3) for failure to protect the deposit can ONLY be made BEFORE the tenancy has ended. The Court of Appeal in Gladehurst has overruled the High Court in Potts on this point.

 

The High Court decided in Potts that a tenant can win a claim under section 213(5) if the landlord fails to provide the prescribed information, even if the deposit is actually protected; and in Gladehurst the Court of Appeal did not say that a section 213(5) claim could only be made during the tenancy (they did not consider section 213(5) at all).

 

It's possible that in order to succeed in a section 213(5) claim the deposit has to be protected, as in the Potts case. Such a claim might succeed only in cases where the deposit was protected.

 

But if the o/p claims under section 213(5), he is likely to LOSE that part of the case in the County Court, because of Gladehurst. Don't even consider making such a claim unless you are willing to go all the way to the Court of Appeal - which will be very expensive if you lose.

Edited July 20, 2011 by Ed999