TDS Non Compliance - Tenancy Ended

[waterlillygirl]

Hi,

I've recently come across this site with a lot of useful information, albeit too late as we have already submitted a claim using moneyclaimonline. Basically it's as follows:

 

Moved into flat in Aug 09 having paid 6 months rent in advance plus 6 weeks deposit . Tenancy was AST, let through agents but not manged. We signed deposit nomination forms etc but never followed up on where deposit was held.

 

We had a lovely tenancy, landlord had a manager who was good at communication and basically we had no problems that were not resolved by said manager. At end of tenancy, we decided not to renew and emailed manager to let him know so that he could start process of letting.

 

After officially moving out and handing back the keys, we requested deposit back from the initial letting agents. One week later, having not heard back, I followed up only to be told deposit held with landlord. So we contacted the landlords manager but got no response. Using the details in the Tenancy agreement (LL is a company), we managed to get contact details. Rang and enquired about getting back our deposit as had already been two weeks since moving out, no one had contacted us about a check out etc but we needed the money back.

 

Having had no response, sent email a few days later stating all details again and requesting refund of deposit (less any necessary checkout costs). Also asked where deposit was held as in our tenancy file could not find the certificates for deposit. Could they please confirm where it was held as we could ask the company for repayment process to commence. Eventually heard back being told that the manager who was in charge of our property was on holiday and they were going to get a hold of him to confirm tenancy details etc. A few calls later, we are then told that manager is no longer with company and could they get copies of final bills etc. Sent these through plus copy of tenancy agreement + statement showing how much deposit held. Such requests went back and forth for a few days so we sent email stating our case and also giving deadline that should we not have depsoit back by such and such date, we would apply to county court for judgement.

 

We did not receive the funds by deadline and went ahead and completed moneyclaim also stating that deposit not protected and landlord not providing any details even after numerous requests (late but we never imagined we would have such problems especially considering we met his requirements prior to moving in), and having contacted deposit scheme companies, they confirmed this is the case. (Waiting on one to send in writing as two have already confirmed in writing that they held no deposit for the property under any of our names nor for the period in question).

 

Day after filing the claim, we received a cheque for the deposit (this was late last week), which was immediately banked but still waiting for funds to be cleared by the bank.

 

My question is this: can we still proceed with the non compliance of TDS although we have received the deposit back in full with no deductions etc. We will ofcourse notify court that landlord has refunded the deposit but we would still like a ruling on the fact that he did not protect the deposit.

 

Sorry for the long post but any advise would be appreciated. We've pretty peeved at the way the landlord has treated us and had he not given us the run around, we would not be at this stage. However, for a landlord who claims to have numerous properties, he should know his responsibilities and has the deposit been protected, any disputes would have been handled by the TDS scheme without having to go direct to county court.

 

Thanks in advance

 

Just to clarify we claimed just over £9,000 (being the deposit + 3x compensation)

Edited September 19, 2010 by waterlillygirl
Additional Info

[Bry2020]

Its tricky now because you have had the deposit returned and banked the cheque.

The law says that if you take your landlord to court on the grounds that the deposit has not been protected, then if the the court is satisfied the deposit has not been protected they MUST order 'whoever appears to be holding the deposit ' to return it to you and MUST ALSO order the 3x fine.

 

The fact that your deposit has been returned in full means that the court could take the view that they cannot order the return of the deposit because it's already been returned. Therefore they cannot ALSO order the 3x fine.

 

The other tricky one with your case is the fact that the amount of the claim is over £5000. This means it doesnt fall under small claims and that if you go to court and lose your case, then you may have to pay the legal costs of your landlord.

 

It would come down to the paticular judges view on the case. I woudnt take the risk and stress if I were you - it is stressful suing someone.

The only thing you could rely on is if the deposit returned to you is less an amount for check out fees i.e.you havent had the whole original amount returned. If this is the case, and you do continue the claim on the basis your deposit has not been fully returned, then you are in a grey area. The grey area is 'have you had your deposit returned'. The defence are likley to argue that you have had it all returned because you asked for the deposit minus any charges for check out.

 

Hope this helps, congrats on getting your deposit back...

[waterlillygirl]

Hi Bry2020

Thanks for your response.

Yes, it is a bit tricky. we did notify the court that we have received the initial deposit back (once the cheque cleared) and they wrote back to us stating this has been noted on the file and we should inform them should the defendant pay the balance.

The LL has of course not taken it well and has used a few not so pleasant words when he rang.

We are still not sure what is the best way to proceed but atleast we did get the depsoit back in full.

 

We don't really care for the 'compensation' etc but are more concerned that a LL who claims to have soooo many properties cannot be bothered to protect the deposits. If there was a way that he could be 'ordered' to do so or to ensure this is done for future tenants, that would be satisfactory for us.

 

Thanks again for your advise.