Jump to content


A very clever LL using DPS - **SUCCESFUL OUTCOME**


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 3542 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Hi if anyone can advise asap then most grateful. below is copy of an email that I have just sent to DPS. it explains all:

 

Dear..

 

Please can you confirm if it is legal for a Landlord to protect a tenants deposit with DPS, using a start date that is a whole year later than that of the start date of the tenancy agreement and when the deposit was paid.

 

The Landlord has not given me, the tenant, the year she was declaring as the start of the tenancy agreement and I checked on the 2 years that there were actual tenancy agreements in place which were feb 2007 (DPS not needed) and feb 2008. She has deposited it 2010 but has listed feb 2009 as the tenancy start date and deposit paid, but has failed to inform me of the these details and ID number. It's only by chance I find that it is deposited in another year, by checking if she had chosen another year. She did.

 

She did send me details for me to confirm deposit through Legal 4 Landlords with a letter dated 4/3/2010 and attached info from landlord + assist which again fails to tell any dates. This is signed 16/9/10 asking me to sign and confirm details with them or go to DPS to confirm directly with the DPS scheme.

 

I immedaitely checked using your on line checker and found it was not secured with DPS, but I checked only 2007 and 2008. So I did not sign the statement allowing me the opportunity to confirm that I have read details and that the information is correct, as I did not think it was deposited.

 

I have sent numurous letters to LL asking for my deposit to be returned since moving out of the property in Oct 2010 and stating that I would issue a N208 claim against her for non-protection. She has never replied to these letters to say it is protected and she has never given me an ID number.

 

I have issued a N208 a few weeks ago as a counterclaim to a section 8 and now find by chance it is actually deposited.

 

This cannot be right and surely the LL has an obligation to tell me of the ID number, which she has not done or responded to my letters since October 2010 to tell me of the information I needed eg year she had declared and ID number.

 

I have sent letters for non compliance to her and she has ignored this, but obviously she didn't want me to know she had protected it, as she chose a year I was not likely to search on.

 

I have not confirmed the details on DPS's on line checker, but need guidance as to what to do as I have a hearing this Tuesday 1st February 2011.

 

Details:

 

Tenant

*****

Paid £2200

Date of last AST agreement issued 9th February 2008 - declaring deposit is received.

 

(NB No further AST agreements have been issued)

 

Landlord

****

I moved out of this rental address on the 8th October 2010

New Address, that my LL has a record of;

******

I look forward to hearing from you.

Link to post
Share on other sites

Just noticed another error in the prescribed information provided to me from landlord+assist

 

My email is wrong! Just sent this to TDS.....

 

"Dear Sir/Madam

 

On looking at the prescribed information sent to me now in a differnt light, I can now see an error in my email address.

 

They have written ********** which does not exsist!

 

I find this strange as this way of communication was used between my LL and myself. I have many (over 50 emails from her using the correct address), so I find it hard to believe that this was not deliberate.

 

Why did she not give me the ID number of the deposit on the many times of stating that she should return the deposit for non compliance. The first being when she lost the section 21 case due to not stating the correct AST Agreement. The Judge struck out the possession order as the subsequent and last Agreement was not displayed as being the correct one, dated the 9th February 2008, and the deposit was not protected. LL dis[layed the first one 9th Feb 2007.

 

The Section 8 possession was given as I had already moved out of the property, but the money claim part of section 8 is to be heard on 1st Feb 2011. I have issued a counterclaim N208 for non compliance as the LL has not given the ID number and ignored my letters of non compliance and has not issued you with the correct details of the AST Agreement and my email address for you to let me know the ID number.

 

Please could you look into this asap. I know you offer a 4 working day response, but this is urgent.

 

I would also like to add that I have print outs from your website: Is My Deposit Protected dated the 07/11/2010 (after I moved out) with many different versions of searches, as my name has 2 words and have AST Agreements dated 2007 and 2008. Just didnt search 2009 as this is not when an AST Agreement was made.

 

Surely LL has some obligation to tell me what year she has placed the deposit under.

 

I do not know if the deposit is still with you or whether she has taken it because I have now moved out and have not known to argue this or dispute her claim in any way. How is the tenant protected from this?"

 

What does any one on this site think???

Link to post
Share on other sites

We await you posting the DPS response

 

What is your question/complaint for this Forum to answer?

 

If the deposit has been repaid to LL the DPS acxcount is closed, your beef is with the LL

Link to post
Share on other sites

Hi AllRang the DPS and they said that the deposit is still with them and I have to contact the LL for the ID ref number for the DPS deposit. I asked about the date he had claimed as being the AST agreement start date being a whole year late and they said that they do not check this information. They did say that unless I knew the date to search on DPS then this could be problem but wouldn't commit or make comment. They just kept mentioning the 14 day rule! Well we all know that lends no weight in court.I attended court hearing and as my counterclaim was attached the judge asked me about this first. I told him that I now know since submitting this N208 that the LL has put my deposit into DPS, but he failed to give DPS the correct date of AST which then allowed me to believe it was not protected as I searched on the correct date. I had already submitted within my defence to the section 8 and the subsequent N208 copies of the DPS website (via Screen Dump) showing it was not deposited.LL had given me prescribed information but no information about the date he had used and had told them a wrong email address for me. I have evidence in my defence showing LL writing to me via email.Due to this DPS sent my ID ref number for deposit to an incorrect email, so I didnt get it!At no point did th LL then and up until now try to tell me the number, knowing that I was going to go down the route for non-protection. I had sent them 3 letters ( 2 were after the prescribed information and my searches on DPS) All documented in my defence.At this point the Judge stopped the hearing and printed out case notes on two Non protection cases (22 pages long). Asked me to read these throroughly. He said he wanted to do the next hearing to continue as it needed 2 hours and that he knows alot about these claims. He was really nice!He asked me if I can get hold of the ID number from DPS and told him that they have told me to get it from my LL.He asked if I can do this and do I have an email address for the LL. I pointed out that I do as that was the preferred way that we communicated with each other. I pointed out all the email correspondence we had had that was in my defence.The Legal representation then said I could get it from Landlord + Assist ( who had sent me the prescribed information )I said I would.He then asked if I had the Clamaints defence to my defence to the section 8. The claimant (my LL) had failed to send me a copy and the Judge was starting to get agitated. The LL was not present (never has) and this was my 3rd hearing. He looked at the defence papers which was 30 pages long and searched for a witness signature declaring a statement of truth. He eventually found it. He said " here it is, on page 30" - he was not amused.So now it is adjourned to April!The 2 cases I have to read are Case Nos: B5/2009/1655; B5/2009/2163IN THE HIGH COURT OF JUSTICECOURT OF APPEAL (CIVIL SECTION)ON APPEAL FROM CROYDON and MANCHESTER COUNTY COURTSJudge Ellis; Disdrict Judge StonierCase Nos: 8PB59368; 8AL0332911/11/2010BEFORE LORD JUSTICE THORPE, LORD JUSTICE SEDLEY, LORD JUSTICE RIMERBETWEEN:CHRISTELLE TIENSIA -&- VISION ENTERPRISES (T/A UNIVERSAL ESTATES)HONEYSUCKLE PROPERTIES -&- FLETCHER, McGRORY, WHITWORTHAll this is alot of reading and if anyone can make any sense of these then appreciated. All the lord Justices do not seem to agree and one money claim is still not ended!!!!Help please - What does the Judge I saw, want me to do???? Stop the N208 claim or go for it?

Edited by confused mum
was shown as all one paragraph - confusing
Link to post
Share on other sites

Hi again I have studied the documents again and read some websites who have reviewed these cases. I have decided to withdraw my N208 and ask for the LL to waive costs. (The judge said I could do this). So that's it! I do think it's wrong though after all these months LL deposits it at the last minute, just because LL can! Plus LL has been very awkward with every part of this, allowing me to spend money to claim because he never even deposited the money in the correct year! It's a joke and makes the whole precedure and Legislation not worth the paper it is written on! So LL's can do what they want and treat their tenants badly, until the end. Oh well! At least LL cannot touch it until the court decides and make its order.So beware tenants! It's not worth claiming for non-protection unless you have moved out!

Link to post
Share on other sites

Hold fire on your withdrawal, I believe someone suggested another (late) deposit case is going to Court of Appeal which may clarify the 2 case studies the Judge gave you.

I cannot comment on your LL's knowledge or experiences or the size of her rental portfolio but I suggest there at least as many Ts that play the game eg delaying rent to pay for Xmas, expecting the deposit to be used for the final month rent or running up substantial arrears then just walking out without Notice, believing that can give 1 month notice at any time and by voicemail etc, knowing most LLs will have to negotiate a legal minefield before they can get re-possesion of their property.

 

The LL did protect your deposit belatedly but if it was the same deposit carried over from 2007, she poss did not realise the extension AST you signed in 2008 constituted a new Agreement, requiring the deposit to be protected in an appproved scheme. Anyone who signed their existing AST before 1 April 2007 will find their deposit does not need to be protected even in 2011.

Link to post
Share on other sites

Hi Mariner51 thank you for your reply.

 

You are correct and I do believe there are tenants (many) that play the system. I am a total novice at being a tenant. I was only told via Shelter and the council of my rights and what I should do as I was not to make myself potentially homeless. I couldn't leave the property and had to wait for a council property, but I couldnt afford the property due to change of circumstances. I did find somewhere previous to seeking help with the council, but my Landlord wouldnt give me a reference for a housing association property, because I was in arrears, from an old debt 3 years previous (due to housing benefit stopping for 4 months whilst the council sorted out my new payment - all because I started work again. I had been paying off this debt to my LL every month over 2 years. But still had some arrears. I begged my LL to let me go but he wouldnt even though I told him I couldnt afford it! I was told to ask for a section 21 or 8 (council advice) so they could start the process of putting me on the bidding system quicker. I did ask for it. He served a section 21 and it months later when shelter advised me of the deposit law etc..... anyway section 21 failed as he didnt deposit the money. I wrote letters asking for the deposit to be protected. Then 6 weeks later he served a section 8 and a 21 and the rest is as above. then the prescribed info came. I checked as already stated. Wasnt showing as protected. So he knew that the valid AST was 2008 after the failed section 21 was struck out! He then deposited the money giving details to DPS of an AST in 2009! No new AST was given or signed. I never searched this year.

 

He was terrible at suporting me with many problems with the house etc.....

 

I would not have botherd with the n208 if he had been honest.

Link to post
Share on other sites

Your next hearing is Aprl so as suggested wait for Court of Appeal decision on Tiensa/Honeysuckle.

 

Sorry to sound insensitive to your predicament but

1 LL is only required to provide evidence that your deposit is protected ie sheme & account ref no, not date

2 it will be for the Judge to decide if the LL complied with obligations, based on case law (precedents)

3 s8 allows for repossession & payment order based on 2+ months rent due. Many Councils now regard eviction due to non-payment of rent as T making themselves 'intentionally homeless' and not eligible for Council re-housinfg

4 IME to date, Housing Assoc rarely depend on private LL refs

I appreciate your 'change in circumstance' making the property unaffordable but you make no mention of applying for Housing or other benefits /assistance options to enable you to meet your rent obligations. Shelter advise that paying rent should be a priority to keep a roof over your head and avoid the intentionally homeless tag.

 

My advice is to claim all entitled benefits and pay rent arrears before April (which may only delay repossession order) or find an acceptable let at affordable rent and hope you retain your position on the Council/HA list.

Given current case law you are unlikely to win your counterclaim.

Link to post
Share on other sites

Thanks again for your speedy reply.

 

Your point 1) LL via Landlord Assist, did not give me and still has not given me the ref ID number for the deposit into the DPS scheme. I will be asking Landlord Assist for this on Monday.

 

Your point 2) I totally agree - just trying to gather the info he basis his decision on.

 

Your point 3) I moved out of the house in question in October and am now in council accomodation, through their bidding system. I was a high priority. But still had to wait for months.

 

Your point 4) THe housing asociation I was with worked with MOAT and they needed a LL reference. I lost it because LL refused. I have emails telling the Association of my arrears (that happened when I began work again) but they definately needed this reference as evidence details clearly many times.

 

Because I am an x bankrupt due to my husband dissappearing and leaving me with 4 children (ok 1 was over 18 ), this created a difficulty in finding a further more affordable private rental home. My only route was the housing association that had accepted knowing all about arrears, which then failed due to my LL not giving them a reference (obviously up to LL), but this only left me one option whch was to find a cheaper place via the council. They did help me with Housing Benefit which went to the LL but it fell well short of the monthly rental. I had lost the will in fighting with the council and they were now trying to help me find a place. I was told by them to stay put until a place was found. I did what I was told. T

 

The last but one hearing in November for the section 8 allowed the repossession of the property as I was no longer there. The money claim was adjourned to January, (just had) Now adjourned to (April).

 

Does this help? I still dont think I have a leg to stand on but in my view the LL refused to give me a reference knowing I could not afford it and 8 months later I am finally in a flat which is affordable. My hands were tied. Now I face more debt which could have been avoidable.

Link to post
Share on other sites

Its tenuous, but all may not be lost with your counter-claim. I remember reading before that part of the legislation says that you must be able to verify the protection of your deposit, and also have the prescribed information. If you required an ID with the DPS to confirm protection then you are still currently unable to do this, also I believe the prescribed info must contain this.

 

I've also seen it recommended for those that start a claim on the basis of non-protection to follow through with the claim even if the deposit is protected before the hearing so as to be able to be awarded costs by the judge.

 

The judge you have may not necessarily be able to award you the 3x, but certainly has the discretion over costs etc and seems to be very irritated by the LL already, this will work in your favour.

 

I do wish you the best of luck with what has already been a very difficult LL.

Link to post
Share on other sites

Thanks xoAmyox

 

I have looked up the DPS terms that were not attched to the prescribed information letter sent to me by Landlord Assist, obviously after my LL had put into the scheme and I have pasted the part detailing what should be given to the tenant:

 

b. The Landlord will be responsible for providing confi rmation to the Third Party.

c. The confi rmation to each Party will contain:

i. Name, address and contact details of the DPS;

ii. the Deposit ID;

iii. the amount of the Deposit and the date of receipt;

iv. the name and contact details of the Landlord;

v. the name(s) of the Tenant(s) and the Lead Tenant, if applicable

vi. the address of the Tenancy property;

vii. start date of Tenancy;

viii. tenancy duration (months);

ix. a copy of these Terms and Conditions;

x. a Landlord’s Repayment ID or Tenant’s Repayment ID, as applicable.

 

i, iv, v, vi. were given to me only!

iii - I was given the amount only but not the date of receipt.

So you are correct in what you say.

Therefore the LL has not given me the details that were crucial for me to confirm if the deposit was actually registered. Especially as he gave a false start date of the AST Agreement and didnt give me the ID number.

Although this states in many papers of the legislation to do this or the LL could be fined 3x etc..... we all know that this will be very unlikely to happen due to recent case studies on appeals.

TIENSIA -&- VISION ENTERPRISES (T/A UNIVERSAL ESTATES) &

HONEYSUCKLE PROPERTIES -&- FLETCHER, McGRORY, WHITWORTH

I think the first case listed is still live and no money claim has been finalised. Does anyone know when this is going back court?

My other question is, due to my counterclaim being issued before the hearing and before I knew my deposit was actually in DPS, will this still be ok to go ahead as the hearing was adjourned? Surely if the case has not actually been heard in full yet and at the next hearing date I will know all the details I need to know. Will this be seen as a waste of time? Not sure if I have made myself clear.

To be honest I really dont care about winning the counterclaim, its just the principal and the unjust situation and the way that the LL has dodged telling me the info. I dont want the LL to win because the Law says so, but we all know she has done wrong and no-one can touch her. If I can prove her dishonesty with this, I will have a stronger case with the evidence I have in proving how she made my situation with arrears far worse.

Thanks again Amy

Link to post
Share on other sites
  • 5 months later...

Hi All again

 

Just an update - as some maybe interested in this case so far.

 

Attended court court again in April and Landlord did not attend again. LL representative (a local solicitor who was only appointed that morning) who was not given any evidence papers from either party and just had to wing it!

 

In front of judge, he wanted to postpone it again. Judge, not amused, asked where the LL was as he had clearly directed at last hearing that LL and Me (tenant) were to put on oath to answer questions.

 

Very angry as he had given 3 or 4 hours to sort it out, then asked me if I had any objections. I stated that I still had not had the prescribed information and this has now been postponed 3 times. He understood exactly what I meant and made sure in his direction that the hearing was now 'PART-HEARD' and both claimant and defendant are to attend in early August.

 

He told me that the LL is now too late to give me this information.

 

Plus he ordered LL to pay my costs for the day and to be paid within 2 weeks. LL did, but arrived much later than 2 weeks.

 

I have also had the prescribed information sent to me since the last hearing! Kinda proves that LL hadn't sent it to me previously - what does anyone think? Was also sent to court along with another witness statement! DJ made it quite clear that no more evidence can now be served as the hearing has begun.

 

So what will happen now if LL doesn't show?

 

Am I safe?

 

Any support would be great

 

Thanks in advance

Edited by confused mum
a few tpyos
Link to post
Share on other sites

So what will happen now if LL doesn't show?

 

Am I safe?

 

If the landlord does not show up, you should ask for the case to proceed, give your evidence, answer any questions which the judge asks you, and then ask for judgement in the amount of your claim.

 

Nothing prevents the tenant succeeding in a claim for the return of the original deposit (a claim which can only succeed AFTER the tenancy ends, because that deposit is security for non-payment of the rent and for damage during the tenancy).

 

It is up to the judge, but he might agree to proceed whether or not the landlord attends, since the landlord has already failed to attend this hearing on an earlier occasion.

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

Link to post
Share on other sites

A wily judge and LL has just shown your contention that prescribed info was not provided is prob correct.

 

I doubt LL would risk not showing up for the August Finale. I think you can be quietly confident of a favourable decision.

Link to post
Share on other sites

Many thanks Ed999. Your info was helpful.

 

I think you are absolutely right. I hope so!

 

However I am in arrears, as my LL made it very awkward to leave and I had to go down the council route to declare homelessness for me and my kids. I actually asked for him to serve notice on me to leave. He failed the section 21 as no protection of deposit at that time. And he declared the wrong AST (prior to the schemes - feb 2007) Judge threw it out.

 

Anyway to cut a long story short, he then served a section 8 and another 21 through an internet lawyer site. I didnt think it was valid as I checked with all 3 schemes for the correct year of AST which is 2008. Nothing. So I thought it wasn't protected.

 

I was in arrears when leaving the property but mainly due to LL not giving me a reference when I found a HYDE flat. I am a self declared bankrupt (over 4yrs ago and LL knew this) due husband dissappearing, an so needed LL support. But I only got grief!

 

He has protected the deposit under the year 2009 (no new AST agreed or signed). So wonder I didnt find it.

 

I have only found out this date out recently since the last court hearing - PART HEARD. (when he sent me screen dump of the web page from DPS of the info I needed)

 

Do you think Judge will do a SAAD v HOGAN and deduct what he thinks is owed to LL if he doesn't show up?

 

Will he bother to argue for them, reading LL witness statements. Or will he allow the solicitor to fumble his way through?

 

What do you think?

Edited by confused mum
added
Link to post
Share on other sites

At the end of the last hearing, judge told me "not to worry - it will be fine" - I think he could see my dissappointment and possibly me shaking like a leaf.

 

He was lovely and he has named himself on the direction to hear the next hearing. This will be the 3rd time with him as DJ for this case. He has made sure that he has been assigned to this. The first time I met him, he actually printed out court cases Honeysuckle and the Tiensia in the chambers, for me to study and decide if I wanted to continue with my counterclaim. He questioned me last time, and I had studied and was impressed......... I think!

 

This is now my 4th attempt to get this sorted - all 4 times without LL turning up! He has asked for a 4hr hearing. Plus he asked in his direction for both me and LL to provide dates we could not attend from April (last visit). I personally think he has had enough of my LL! Well I am so hoping and praying so.

Link to post
Share on other sites

Mum may be confused, but so am I. The original premise was tht LL had not protected/provided reqd info which the DJ seems inclined to accept, Yet in #15 OP states "I actually asked for him to serve notice on me to leave." ( to avoid being declared as intentionaly homeless & deprived of social housing?) For reasons best known to LL, he failed to serve valid s21 or s8 Notices. A successful s8 RPO citing rent arrears could have succeeded and suggested by accruing rent arrears the OP made themselves 'intentionally homeless'.

A LL should not give a false ref.

Link to post
Share on other sites

Hi Mariner51,

 

I can see that I am confusing, which isnt good!

 

Due to circumstances I could not afford the property any longer (eg eldest child moving out who helped pay rent). LL refused to accept this, for reasons I cannot and will never understand.

 

Shelter and council told me to get LL to serve notice to leave on me as I could not afford the property because if I leave I would make myself intentionally homeless. It confused the hell out of me but the LL was threatening (via email and on phone and just didnt see sense that I needed to move on).

 

The last section 8 served, gave possession to LL back in October/November 10, because I was already in a council property, so Judge only part heard the section 8 on the possession order and postponed the money claim within section 8 to a future hearing. (LL did not attend)

 

This is when I decided to counterclaim for non protection of deposit and prescribed information not given.

 

We have then had 2 court hearings since and both have been postponed as LL has failed to be present to explain evidence in full. Although he was represented by a 2 different local solicitor who didnt have a clue!

 

I can see your point that I actually made myself intententially homeless due to not paying the full monthly rent, but the council new this and paid what I could. They just wanted me to go down the route of being evicted, whilst putting me on a high point bidding system for housing. I eventually got a flat by default as it was not wanted by anyone else, and if I refused I would then have made myself intentionally homeless.

 

So yes hence my name 'confused mum'! but I do think maybe I am in a good position, but even if I walk out without any money, I dont want to owe any either. Just want a clean slate.

Edited by confused mum
missed a word which then wouldnt make sentence understood
Link to post
Share on other sites

Hi Mariner

 

Just reread my post 15.

 

It wasn't clear about the reference I asked for. oops - sorry.

 

I asked for this reference from LL in February 10 when I found the Hyde Housing flat, when I told LL I couldn't afford the house any longer. I was in arrears at this time too but from a few years previously and had paid it off monthly on top of my usual rent to clear. Hyde Housing knew about this and LL even spoke to them so nothing was hidden. But he still refused to write one without me coming up with a new plan to pay him the arrears within 6 months - I couldnt agree to this. I gave my word that the arrears would be paid via email and that we could formalise the agreement. So all he had to write was the truth and state a schedule was made and was being paid off. Plus the general: the property address and how long I had been there - 3 yrs. He knew where I was going! I wasnt running away without any forward address.

 

So yes I know he couldnt give me a false reference but he didnt have to. He made my position far worse by not letting me go and arrears since March 10 - October 10 increased dramatically increased. It could have been better for both of us to stop this spiral getting out of control. But he even sent me emails (in my evidence) -'Its going to far worse for you than it will for me'

 

Anyway - thats it regard to the reference.

Link to post
Share on other sites

I have found the facts rather difficult to disentangle, so please correct me - anyone - if I am wrong.

 

a. It appears the tenancy has ended, the court having granted a possession order in 2010. And the former tenant now lives elsewhere.

 

b. The landlord sued for possession because of the existence of rent arrears, and gave a section 8 notice. The only remaining issue arising under that notice is the outstanding arrears, although the current arrears balance is unknown to us.

 

c. The tenant has counterclaimed for money compensation, of an undisclosed amount, for the landlord's failure to protect the tenancy deposit.

 

d. The landlord protected the deposit in 2009, although the tenant was not aware of this.

 

e. The landlord gave the prescribed information in 2011. Only at that point did the tenant learn that the deposit was actually protected,

 

 

Tentative conclusions from this are -

 

1. The deposit was protected before the tenancy did end, so the court can still order its return to the tenant, less deduction of the rent arrears.

 

2. The tenant's counterclaim for failure to protect the deposit must fail, as the tenancy has ended. This is the effect of Gladehurst Properties Ltd v Hashemi in the Court of Appeal.

 

3. The tenant's counterclaim for failure to provide the prescribed information remains a live issue. But the outcome is uncertain. It is not clear whether a claim under section 213(5) - for failure to provide prescribed information - can succeed after the tenancy ends; nor is it certain whether a landlord can comply with section 213(5) more than 14 days after the deposit was paid.

 

4. If you pursue a claim under section 213(5), you are likely to LOSE that claim in the County Court, because of Gladehurst. Don't even consider pursuing 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.

 

5. Due to a rule change in 2009, only a claim for repayment of the original deposit can be heard in the small claims division, in which the 'no costs' rule applies, and only if the deposit is under £5,000. The claim under section 213 or 214 of the Housing Act 2004 - for three times the amount of the deposit - is now no longer treated as a small claims case, even if the amount claimed is under £5,000. So if the tenant loses, she can be ordered to pay the landlord's solicitor's fees for the court case.

 

6. If the rent arrears - the amount of which are unknown to us - exceed the amount of the deposit - also an unknown amount - there will be no money to come back to the tenant, but the arrears balance will be reduced.

 

7. As there appears to be no realistic prospect of the counterclaim succeeding, the best outcome is perhaps for case to be settled by agreement without a further hearing, as the only matter needing to be resolved is that in paragraph 6 above.

 

The court can make a final order in agreed terms, if both the landlord and tenant write in to request that, having once agreed between themselves the resolution of the only outstanding point, i.e. the current amount of the rent arrears.

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

Link to post
Share on other sites

Dear Ed999

Yes I do seem to have confused, but it is a complex one! - sorry.

 

I am not building my hopes up but I was just reading case outcomes and thought about the following, any views would be appreciated.

 

Whilst the tenancy was still in force, I asked for the deposit to be returned or prescribed information many times as I could not find any scheme holding my deposit. I was finally sent a recent screen dump from DPS website detailing my ref no after the the hearing was Part Heard. This kinds of proves that the LL had never sent it or could prove he had, therefore LL never met his obligations during or post tenancy. The DJ even asked the solicitor present at previous hearings for this to be sent to me. They failed to do this. How could I know if it was protected or not as LL failed to even acknowledge my requests for information? Well documented

 

Searched on dates of AST 2007 (prior to legislation) and AST 2008. LL had failed a section 21 previously as he had not protect the deposit and did not state the current & correct tenancy agreement 2008. He has done it again and said that there was another AST in 2009 and gave this date to DPS (this does not exsist). Does this not prove evasion and entrappment by falsly leading me down a path that I did not have to take?

 

LL did protect the deposit therefore entered into 'an agreement' that will allow for post tenancy counterclaim for not supplying required information?

eg in Tensia it states DPS clarification for the purpose of the 'deposit lodged', that the Tenant and LL are still in contract until settled, even after teanancy has ended.

 

Is this a difference between 'Gladhurst' and 'Tensia' and 'Potts' that could be in my favour? 'Gladhurst' never entered an agreement using an deposit scheme so never could use the words of the ACT and the wording of DPS, 'In POTTS case' most of the deposit was returned?

 

Do I have anything here?

Edited by confused mum
spelling
Link to post
Share on other sites

Whilst the tenancy was still in force, I asked for the deposit to be returned or prescribed information many times as I could not find any scheme holding my deposit. I was finally sent a recent screen dump from DPS website detailing my ref no after the the hearing was Part Heard. This kinds of proves that the LL had never sent it or could prove he had, therefore LL never met his obligations during or post tenancy. The DJ even asked the solicitor present at previous hearings for this to be sent to me. They failed to do this. How could I know if it was protected or not as LL failed to even acknowledge my requests for information? Well documented

 

 

If I may, I will abuse protocol and address your final point first.

 

You could discover whether the deposit was protected - or not protected - by contacting the three authorised TDS providers, either for free online or by post for the cost of a stamp.

 

 

The Judge will have to look at the actual document you were sent, and the surrounding correspondence, in order to decide these issues of fact:

 

a. Does the document provide all the information which section 213(5) requires the landlord to provide?

 

If it does not, there is still a failure to comply with the section, even in spite of everything they have sent you. So, potentially, you could win the s.213(5) claim.

 

b. Were you sent the document on an earlier occasion, or have you only received it after the court case began?

 

This point (b) is relevent ONLY if the document complies fully with the section: for only in that case is it capable of being a full defence to your s.213(5) claim.

 

The point (b) is possibly irrelevent: the court may choose to take the view that you lose if the landlord complies at any time prior to the court delivering its judgement on your claim. This is hard to predict. Possibly you will simply lose on the more straightforward ground that the tenancy had ended before the date of the final court hearing: the basis on which the tenant lost in Gladehurst.

 

 

As to the issues of law, which the Judge will also have to decide, the High Court in Potts decided 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 (because they did not consider section 213(5) at all).

 

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

 

But if you pursue a claim under section 213(5), you are likely to LOSE in the County Court, because of the Court of Appeal decision in Gladehurst, which is binding on all lower courts and which might yet be held to cover a s213(5) claim even though that type of claim was not discussed by the Court of Appeal. Don't consider pursuing such a claim unless you are willing to go all the way to the Court of Appeal to try to overturn the ruling in Gladehurst - which will be very expensive for you if you lose.

 

 

Searched on dates of AST 2007 (prior to legislation) and AST 2008. LL had failed a section 21 previously as he had not protect the deposit and did not state the current & correct tenancy agreement 2008. He has done it again and said that there was another AST in 2009 and gave this date to DPS (this does not exsist). Does this not prove evasion and entrappment by falsly leading me down a path that I did not have to take?

 

 

IMHO, neither evasion nor entrapment will cut any ice with the court, if you try out such arguments.

 

You will be wasting your time, in my opinion, because those are not elements of section 213(5), so the court will likely treat such arguments as irrelevent.

 

 

LL did protect the deposit therefore entered into 'an agreement' that will allow for post tenancy counterclaim for not supplying required information?

 

 

Please see my comments earlier in this post. A section 213(5) claim might succeed only in cases where the deposit is protected, but that is only one of the several conditions that you must satisfy in order to win under section 213(5). There are others, far more onerous, as I have described above.

 

 

Is this a difference between 'Gladhurst' and 'Tensia' and 'Potts' that could be in my favour? 'Gladhurst' never entered an agreement using an deposit scheme so never could use the words of the ACT and the wording of DPS, 'In POTTS case' most of the deposit was returned?

 

 

Please see my comments earlier in this post. A section 213(5) claim might succeed only in cases where the deposit is protected, but that is only one of the several conditions that you must satisfy in order to win under section 213(5). There are others, far more onerous, as I have described above.

Edited by Ed999

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

Link to post
Share on other sites

My comments only apply if the premises are entirely within England and Wales, and you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - have exclusive use of a seperate dwelling, which is not shared with another tenant nor with the landlord), and you were over 18 years of age when the tenancy was granted, and the rent is less than £2,083 per month.

 

 

in Tensia it states DPS clarification for the purpose of the 'deposit lodged', that the Tenant and LL are still in contract until settled, even after teanancy has ended.

 

 

The Tiensia case has to be considered in the light of the subsequent decision in Gladehurst, which has significantly altered the law, so that it's no longer appropriate to consider Tiensia in isolation. Gladehurst may be the more important decision, although only time will tell.

 

 

Reconsidering Gladehurst

 

There are several reasons why the Court of Appeal decision in Gladehurst might not apply in your case.

 

1. Part of the reasoning in Gladehurst was that where the tenancy has ended, the court cannot order the protection of the deposit (a power given to it by section 214(3)). However, this disregarded the fact that the TDS Scheme will accept a deposit after the end of the tenancy, something that actually occured in Potts.

 

 

2. Part of the reasoning in Gladehurst was that where the tenancy has ended, the two options in section 214(3) (i.e. protection of the deposit or its repayment to the tenant) are not both available to the court, but that section 214 only makes sense if both options are available. However, those options are NOT both available where the tenancy still exists either: the deposit is for meeting rent arrears or disrepair when the tenancy ends, so there is no contractual basis for its return before that.

 

 

3. Tiensia can be distinguished from Gladehurst on the facts, because in Tiensia the landlord did protect the deposit, and after the tenancy had ended.

 

In Gladehurst the deposit was never protected at all. The scope of the judgement is therefore limited to that situation; it is not a case in which the deposit was protected late, as occured in Tiensia .

 

Hence Tiensia is a valid authority in a case of late protection. Gladehurst, strictly, is only an authority in a case of non-protection.

 

 

4. Because Gladehurst concerns a section 213(3) claim, it is not an authority on a section 213(5) claim. This point is obscured by the fact that section 213 is barely mentioned in the Court of Appeal judgement, and section 213(5) is not considered at all.

 

The High Court had previously decided, in Potts, that the tenant can win a claim under section 213(5) if the landlord fails to provide the prescribed information, even where the deposit is actually protected. But in Gladehurst the Court of Appeal met a case in which the deposit was never protected at all; so it necessarily considered only the section 213(3) obligation, and not the entirely seperate section 213(5) obligation.

 

No claim under section 213(5) was made in Tiensia, either, or the judgement did not depend on the point (see http://www.bailii.org/ew/cases/EWCA/Civ/2010/1224.html). So Tiensia, too, is not an authority on a section 213(5) claim.

 

 

5. A decision of the Court of Appeal can only be overruled by the House of Lords. The Court of Appeal decision in Gladehurst thus doesn't overrule the earlier Court of Appeal decision in Tiensia.

 

The Court of Appeal decision in Tiensia (decided in 2010) was not followed by a differently constituted Court of Appeal in Gladehurst (decided in 2011), but this doesn't invalidate the decision in Tiensia - with which Gladehurst conflicts regarding section 213(3) [failure to protect].

 

Although in both cases the tenant lost, the reasons why the tenant lost were very different: the Court of Appeal said that where the tenancy has ended it is not too late to protect the deposit (in Tiensia), but it is too late to apply to the court (in Gladehurst).

 

The real difference was that in the 2010 case the deposit was protected (albeit late), whereas in the 2011 case it never was. The Court was not implementing the Act, but seeking a pretext for evading it, because it disapproved of the section 214 statutory penalty.

 

The Court of Appeal in Tiensia said the effect of the Act is that a landlord can protect the deposit even AFTER the tenancy ends (the practical effect of which is that it must be protected by the date of the court hearing), dismissing the tenant's argument that, because the landlord is then no longer a landlord, it is too late to protect it once the tenancy ends.

 

The Court of Appeal in Gladehurst said the effect of the Act is that the Court can't make a penalty order unless both alternatives in section 214(3) are available to it, i.e. protecting the deposit or returning it to the tenant, and that the former is closed to it AFTER the tenancy ends: the very argument it had rejected in Tiensia, that, because the tenant is then no longer a tenant, it is too late to apply once the tenancy ends.

 

In Gladehurst it attributed importance to the use of the term "the tenant" in section 214(1), in saying the claimant is no longer a tenant once the tenancy has ended.

 

 

6. The High Court decided in Potts that the 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 it was in the Potts case. Such a claim might succeed only in cases where the deposit is protected.

 

In Potts the tenant might have won if she had raised the related point that the landlord had failed to provide her with the prescribed information pursuant to section 213(5) [see paragraph 56 in the Judgement]. She based her claim solely on section 213(3) [failure to protect the deposit], and so lost the case. If you mention section 213(5) in the claim, you might win!

 

If you sue DURING the tenancy: if the deposit hasn't been protected, you need to claim a breach of section 213(3) [securing the deposit] and section 213(5) [provision of prescribed information]. If you are claiming only under section 213(3) you are likely to lose, just as the tenant lost in Potts.

 

If you sue AFTER the tenancy ends: if the deposit hasn't been protected, to have any chance of winning you need to claim for breach of section 213(5) [provision of prescribed information], not 213(3). If you are claiming under section 213(3) only, you are likely to lose, just as the tenant lost in Potts and in Gladehurst.

 

 

The foregoing points, taken together, seem to cast doubt on whether a claim under section 214 must inevitably fail, where the tenancy has ended; which is why I suggest the point is not finally settled.

 

If you make a claim which challenges Gladehurst, you are likely to LOSE in the County Court, because the Court of Appeal decision in Gladehurst is binding on all lower courts and could be interpreted as applying to your case. Don't consider making such a claim, unless willing to go all the way to the Court of Appeal to attempt to overturn its decision in Gladehurst, which will be very expensive for you if you lose.

 

Before you pursue any such claim further, it would be prudent to obtain advice from a Solicitor or Barrister as to whether a claim made under section 214 has any realistic prospect of success where the tenancy has ended before the final court hearing takes place.

Note

 

This is a self-help forum in which users share their experiences. Assistance is offered informally, without any assumption of liability. Use your own judgement; obtain advice from a qualified and insured professional if you have any doubts.

 

This posting gives general guidance only. It is not an authoritative statement of the law. Consult a Solicitor for specific advice before deciding on any course of action.

 

 

Further information:

 

Assured and Shorthold tenancies - A guide for tenants

 

Renting and Leasehold - Advice from Shelter

 

 

All posts are opinion only

 

 

If you've found my suggestions useful, please click on my star and add a comment

Link to post
Share on other sites

Ed999 - wow!

You have given me so much here and its all good - thank you so much!

 

I have something that may mean something to this case.

 

The first part for possession of the section 8 was heard back in October/November 2010 and the Judge ordered that the LL is to gain possession on that date. I counter claimed prior to the date of 'judgement for possession', although I had already given the keys back to the LL. I have the court decision still with the date clearly stated, which also detailed the money part for arrears of the claim for a future set date.

 

So does this mean I counter claimed whilst still officially a tenant? I know I will be responsible for the rent up to that date but it was only a couple of weeks (the downside). I also have the court receipt of payment for my counterclaim prior to this possession court hearing.

 

Will this stand or will LL argue that I had already moved out. What do you think the Judge will see as the date of tenancy ending?

 

Thanks so much again - you have sent me alot to digest and fully understand.

 

I did claim for both parts - deposit not being registered and not having prescribed informaton. The 3rd (last one) hearing was classified as PART-HEARD as Judge knew that the LL still had not complied with 231(5), and he was peeved that the LL had failed to show in person on any hearing. He told me that LL cannot comply now as it is too late.

 

The LL did send me and the Court further evidence which had the Prescribed Info needed.

 

Answer to your advice that I can write to DPS to get the info needed. I did this but they flatly refused if I didnt have the ID number. I have recently tried again with the ID number via email and its been 3 weeks now and still no reply from DPS. DPS have to give me the repayment ID which will then allow me to view my deposit.

 

I will try and give them a ring later.

Link to post
Share on other sites
  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...