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

[confused mum]

Ed999, or anyone else that maybe interested - I would love a response

 

I have worked on your guidance Ed999, and have made some notes that I can use and read from whilst in the hearing. It is not evidence. Its so I do not get tongue tied and confused.

Please see my notes and anything I have wrong or ommitted, I would greatly appreciate these points.

 

Here goes.......

 

GLADEHURST PROPERTIES LIMITED v FARID HASHEMI (ON BEHALF OF HIMSELF AND MATTHEW JOHNSON)

Gladehurst case is strictly, the only authority in a case of non-protection.

Majority of the deposit was returned to the tenant prior to the counterclaim

Did not consider 213(5) as the deposit was never protected

“Gladehurst has never complied with the initial requirements or with s.213(6)(a) and cannot now do so”

So ‘Gladhurst’, is not an authority on a section 213(5) claim.

TIENSIA v VISION ENTERPRISES LTD

Tiensia is a valid authority in a case of late protection, as the deposit was protected after tenancy had ended, but before the hearing.

No claim under section 213(5) was made in Tiensia, either, or the judgement did not depend on the point

“This interpretation was supported by the language of section 214(2)(a), which used the phrases 'have not' and 'has not', a tense showing that the focus of relevant interest was whether or not the landlord was in breach by the time of the hearing (or possibly by that of the issue of the tenant's application, although in the post-judgment discussion Judge Ellis said that he regarded the hearing date as the relevant one).”

So ‘Tiensia’, too, is not an authority on a section 213(5) claim.

POTTS v DENSLEY

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 or not.

“Unusually in this case, the deposit was paid late, and after Miss Potts had given notice of termination of the tenancy”

“The penalty must follow any breach. However, applying Tiensia it was held that it was possible for the former landlord to comply with the requirements of the Act right up to the date of the hearing. Even where the tenancy had ended, the former landlord was still ‘landlord’ for the purposes of the Act and remained obliged to comply with its provisions and subject to the penalties therein. As the landlords had eventually complied with the Act, they had a complete defence to the claim”

“The second issue raised is whether the judge erred in failing to deal with the issue of prescribed information. The Appellant says she erred, because a claim was made in the court below that the prescribed information had not been provided to the Appellant: if the judge had addressed that issue, she would have been bound to impose a sanction on the Respondents for not providing it, as it is common ground they never did so. The Respondents dispute whether such a claim was made; and if it was not, they say it is too late to raise the issue now.”

Potts never claimed for 213(5) of the legislation so was never considered

So ‘Potts’, too, is not an authority on a section 213(5) claim.

DPS (DEPOSIT PROTECTION SCHEME)

It clearly states on the DPS that if a tenant does not dispute the LL’s claim for the deposit, it is to be paid to LL within 14 days - the money goes to LL with the “single claim process”.

“Single Claim Process - Statutory Declaration

a. To use the Single Claim Process, either the Landlord or Tenant who is claiming part or all of the Deposit (the “Claiming Party”) must provide The DPS with a Statutory Declaration at least 14 calendar days after the Tenancy has ended.” (NB Tenant and Landlord is present tense)

Therefore I had to claim via the courts as I did not have the “prescribed information” so I could:

· Clarify if my deposit was within their scheme by exercising my right to use legislation 213(3)

· Stop the LL gaining the full deposit monies by exercising my right to use legislation 213(5)

Once the deposit is with DPS:

· The LL and Tenant are locked into a ‘continuing agreement as LL & Tenant’ (present tense) making Gladhurst Appeal not relevant to my case

· The LL and Tenant wait until the resolved outcome regard to the deposit is made which can only begin after the Tenancy has ended, either amicably or ADR or by COURT ORDER.

Details below that should be given to the tenant as per DPS terms:

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

c. The confirmation 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!

 

Deposit Submission

a. The Landlord or Letting Agent is responsible for ensuring that Deposits are submitted for protection within 14

calendar days of the date of receipt by the Landlord.

b. Deposit information can be submitted by completing an online or paper Deposit Submission Form.

c. The Landlord or Letting Agent is responsible for ensuring that the information contained on the Deposit Submission

Form is full and correct.

d. The following information is a mandatory requirement on all Deposit

Submission Forms:

I Landlord ID;

ii. Landlord name / Letting Agent name / trading title;

iii. house number / name and first line of address of Tenancy property;

iv. town / city of Tenancy property;

v. tenancy property type e.g. house;

vi. whether the Tenancy property is furnished / unfurnished;

vii. start date of Tenancy;

viii Tenancy duration (months);

ix. date Deposit received by the Landlord;

x. Deposit amount;

xi. full name and title of Tenant / Lead Tenant / Third Party;

xii. in the case of Joint Tenants, the full name and title of all Tenants that are party to the Joint Tenancy.

xiii. a mobile phone number or email address for the Sole / Lead Tenant. (online submissions).

POINTS OF ERRORS

Email address was wrong for ‘tenant’ so I didn’t get any correspondence from DPS (it is well documented that this method was the way I, the tenant, and LL communicated)

LL has claimed the AST start date incorrectly - The date of AST LL claimed was 2009 (2008 is the correct date as he knows per ‘STRUCK OUT SECTION 21’, where he claimed 2007 was the AST)

Therefore Date of deposit paid to LL must be wrong, - hence I didn’t find it. (searches are in my evidence)

Best Practice in Deposit Protection for Landlords

Some useful things to remember when submitting, managing and claiming a deposit:

Repayment IDs

› Keep any deposit confirmation letters / emails from The DPS as they include the Repayment IDs which both

Landlord and Tenant will need at the end of the tenancy in order to repay the deposit.

› Remember to ensure this message is passed on to Tenants.

› The repayment process is a joint process between the Landlord and the Tenant – The DPS will not monitor this

process.

Direct Bank Transfer

› Direct Bank Transfer (DBT) is the quickest and easiest way to pay. When you pay by DBT, you can choose either

automatic or manual allocation of the money to a Deposit ID. If you choose manual allocation, don't forget to log in to The DPS website and allocate your money to a deposit - if you don't complete this, the deposit is not protected!

Online Repayment Claims

› Encourage online repayment claims – together or apart.

› Agreement to use Alternative Dispute Resolution (ADR) can also be made online.

Rejected Cheques

Common errors we have noted are:

› cheques not made payable to ‘The Deposit Protection Service’;

› cheques not signed;

› multiple cheques against a single deposit – The DPS will not accept this; in some cases one or more of the cheques

may bounce and a deposit will be incomplete.

Tenants’ email addresses

› The Landlord must ensure this is taken from the Tenant as it is required when submitting deposits online.

Single Claim Process

› This is part of the Government legislation.

› Statutory Declarations must be witnessed by a Solicitor (which should cost no more than £5), a Commissioner for

Oaths or a Magistrate.

[confused mum]

Hello All

 

I was at court today and I WON my counterclaim for non-compliance of section 213(5)! The LL not giving me the prescribed information!!!!!!!

 

He said he had only warded one other tenant since feb 2007 / the beginning of the Law.

 

So maybe this will be useful for many uncertain of whether they can claim. It maybe the first claim for 213(5) that has succeeded since Gladhurst and Potts and it opens up a route that is obviously a way that succeeds for the tenant, and allows Landlords to be aware that they have to do the 'dual compliance' or none at all and take a chance! But we all know that those LL's who do not deposit the monies into a scheme can still comply right up to the date of the hearing to comply to both.

 

POINTS

• The LL had placed my deposit in DPS during the tenancy
  
• I did actually counterclaim claim after the tenancy had ended
  
• LL failed to give FULL prescribed information (he didn't give me the tenants ID number by the hearing date, so what he had given me previously was deemed useless)
  

I will post the court order when it comes through so it will help others on this great site!

 

I wish to thanks so many on here, especially Ed999 who painstakingly wrote down facts of the LAW that was immensly useful! YOU ARE A STAR Ed999!

 

If anyone needs more info prior to me posting the court order I will be very happy to help!

 

Use my notes and Ed999's to help out if you have a similar scenario.

 

I will make a donation to this site soon as it is so worth it!!!!

 

THANKS

[mariner51]

Congrats on your Win, tenacity & understanding.

I think you suprised many here.

 

Unfortunately your case does not set a precedent (CC), though I doubt LL is contemplating an appeal.

The Judgement appears to confirm that 'reqd info' receipt is a nec part of the deposit protection process, allowable up to date of hearing. Your Judge effectively prevented later service by LL by declaring in April, the hearing 'part heard'.(started)

Note to LLs & Ts, do not show disrespect to Court with errors and non-attendance.

 

s213(5) may be an option, if the LL is a total div.

[Conniff]

Congratulations CM, as someone once said 'It's nice when a plan comes together'

[hhh_88873]

Wasnt it 'I love it when a plan comes together?'(80s child here clearly.........)

[Ell-enn]

Excellent result - well done:) and well done to Ed999 who has been an invaluable help you to .

[citizenB]

Have amended your title to show success