almost ready to sue for deposit

[doompixie]

Hello. I hope someone can give some advice. We are about to sue an ex landlord for the deposit of £400.

Here are the basic details:

• Tenancy agreement dated 1 october 2007 for 1 year. Deposit is not protected.

• Rent is £425 monthly payable on the 26th (although the tenancy agreement states the 1st).

• Tenancy was ended on verbal agreement for june 26th

• Deposit was £400 although was agreed with a letting agent who provided the tenancy agreement but no documentation on the deposit. it is briefly mentioned that one is payable in the tenancy agreement, but no amount listed. Letting agent died in 08 although we are tracing records to see if there are any. we did not know of this until the landlord told us recently.

• landlord has been taking rent and dealing with the property throughout the length of the agreement.

• landlord failed to give an address even when asked before the tenancy ended.

• landlord has falsified the leaving date and caused us extra charges in council tax that the council will not let us dispute without a written notice from the landlord.

 

Now I'm not sure what our chances are of winning a case in which we cannot prove the deposit without hard evidence. Whilst I'm trying my best to secure any records its possible they wouldn't have been kept for so long. At the moment we are in two minds about whether to sue for the deposit or non TDS compliance. Really we would just like the original amount back but I do wonder, would a court be inclined to award the fine if it is not mentioned on the court forms under a standard claim?

Can anyone advise whether its a really silly idea to sue without the hard evidence? It seems so but we can't afford not to try really and lose the whole deposit without a fight. Is one claim or the other a better way to take? or does it not matter? I'm not sure which claim we should really be chasing.

And finally, does anyone have a link to download the court forms (if they can be printed and used?) I can't seem to get the hmcourts website working on the relevant pages.

Thank you for reading.

[Webranger]

There is only one REAL problem here - to prove that you paid a deposit.

 

Did you pay by cheque or debit/credit card or was it by cash?

 

Surely you had a receipt?

 

Did you pay it to the agent or to the LL?

 

Is the agent's company still in operation?

 

How do you know it wasn't protected? (No notification doesn't necessarily mean no registration, you would have to check the address with 3 schemes).

 

Without proof of a deposit paid, you case is thin, but as the very poor tenancy agreement you have there does mention one, the onus could be on the LL to explain why he didn't ask for it.

 

Do you have correspondence asking for its return and his replies? If you have written to ask for it and he hasn't replied, "You didn't pay a deposit," then that strengthens your case. Of course, if you don't have an address, how could you write? How have you communicated with this LL?

 

If he hasn't given you an address, that also weakens his case - bad behaviour - but how do you sue him if you have no address? Do you have his car reg no.? DVLA will give you the reg address.

 

If you sue, then do so for not protecting the deposit and ask for the 3x penalty, plus interest. Be aware that if he then pays you the deposit before the court hearing, you can no longer claim the penalty but you will get the court costs.

 

You can claim online at Online Services

[Webranger]

P.S. You must have some proof of the date you moved into your new home. That should settle the Council Tax problem.

[doompixie]

Thank you for the response!

How the deposit was paid gets messy, it is actually my partners last tenancy its just that I'm doing the legwork at the moment. He started living there as a sublet from the previous tenant, although he didn't know this was the case at the time. The deposit was paid to her in cash and he recieved a hand written receipt that we can't find.

After she inevitably did a runner the letting agent got in contact and told him he could stay on as a tenant, this was when the tenancy agreement was presented. The letting agent stated that as the previous tenant had forfeited her deposit by running off and being uncontactable, then he would put the deposit into my partners name as it was all the same to him.

I am trying to trace the papertrails at the moment as the case does seem weak without it. It seems the agent was a one man band and the company stopped trading after he passed. the landlady has dealt with payments and the property as far back as he can remember. I'm currently trying to find out if anyone still has records from the business but the last resort is family members of the deceased and I am not sure how willing they will be to respond.

We have checked with the deposit protection companies and none of them have a record of the address.

Throughout the tenancy he has only had a phone number to contact her on, which is the only information on the tenancy agreement. Recently we obtained an email address from a letting agent she was dealing with to relet the property and have only communicated via email since. However I'm not sure how well this stands for evidence as I was under the impression that written letters are the best kind and other forms may be dismissed? All communication has her stating that the deposit is being held by the letting agent's estate and yet she doesn't even have up to date contact details for whoever is involved. She refuses any liability for the deposit stating that its with someone else and she will have to get it back from them first. She has given us the run around for weeks as this dispute started before we left the property and we agreed to wait while she contacted the relevant people, but she did not.

 

Another point that may be irrelevant but I find very strange... the tenancy agreement has a front page on with details for the letting agent she is currently using. they had never dealt with the property before and is not the letting agent my partner dealt with, they were also confused by it when I called them to enquire as to whether they had dealt with this property before.

 

I have an address from the land registry, I was thinking when things need to be mailed via letter we should send one copy to this address, one care of the letting agency she is using, and one to the address that we have left. We know she spends a lot of time out of the country but one of these is bound to get to her. She has been very difficult so far and in such a nice way she's been given the benefit of the doubt every time, but it really has gone on too long now.

 

We have a new council tax bill and tenancy agreement but we had vacated the property some time before the tenancy officially ended because of the notice. I can't believe she has gone to the trouble of lying about the council tax after he stated it was fine to rent the property before his lease had ended and even offered to decorate the place for her! the cheek of some people

[doompixie]

forgot to add I can access the court forms today! not sure what was up with it yesterday. we were hoping to get a paper copy in the hopes that sending her a copy of the filled out forms will remind her we're serious and not going away. court isn't the desirable option here but we are ready to do it (almost)

[doompixie]

I have just today discovered that the company is still registered as active so I am trying to locate the directors. will see how that goes

[Webranger]

Responses not in the same order as yours. "You" and "your" below refer to your partner.

 

First of all, the landlord is responsible for the return of deposit even if it is held by an agent who fails to repay in some way. As a LL I find that a bit disconcerting, but I can see why and it is undoubtedly the law. Which is your strongest card.

 

Registered as active does not necessarily mean that the directors are alive, but do try, but don't wait too long if you cannot make contact.

 

Having said that, I've just re-read what you said about the deposit. I can see that in equity the deposit belongs to your partner, but I have grave doubts that you could persuade the court that it was legally his. Even if he had a receipt from the former tenant, which he hasn't, that doesn't make the £400 old tenant gave the agent legally the property of the new tenant. Not unless there is a written note from old tenant granting the money to the new tenant, which there isn't.

 

HOWEVER, he may well not be asked to prove that you paid the deposit and how, because it is clear that LL has admitted existence of deposit in emails. Yes, you can use printed emails in a court hearing. Just in case the LL denies sending the email, make sure you print off the complete headings which show the path from sender to recipient.

 

Getting LL's address from the land registry was a good idea. I suggest that you ask her new agent to verbally confirm that this is her correct address, he is more likely to confirm an address than actually supply one.

 

Because your case does have some weaknesses, I suggest that you write a letter to the addresses as you have said, and email a copy to her as well. Head the letter "Pre-Action Protocol Communication" explaining that you are about to make an application to the court for the return of £400 deposit plus another £1,200 penalty because the deposit was not protected in a Government scheme. Point out, too, that she has also broken the law in not providing you with an address for service. Also point out that she will be liable for court costs and interest.

 

Add that you have taken notice of her claim that the deposit is being held by the agent and you have sought advice on that matter and it has been explained to you that the law is quite clear - the LL is ultimately responsible and has to return deposit and pay penalty if agent fails.

 

Then say that you will give her another 7 days to pay the £400. Failure to do that will result in you making the application to court.

 

If she doesn't pay and you go to court, be aware that your great weakness is that if she tells the court that she was in a muddle about the deposit and now realises that you never paid one, the court will ask you to prove payment and then you are up the creek without a paddle.

 

You can imagine it ... "Well, the agent said ..." "Oh, where's this agent?" "Well, he died ...." "Do you have any of this in writing?" "Er... er ..." "Case dismissed."

 

And if she used a solicitor you would have to pay heavy costs. So beware.