Deposit Protection - Clarification and help needed!

[Kristina2011]

First of all I would like to thank evryone who has been posting in this forum as it has provided loads of useful information for me! Second, I would like to appologise if I am asking about the things that have already been asked and answered - I have spent a lot of time in this forum and have tried to get as much from it as I could but the amount of information seems very hard to be completly read!

 

I would appreciate if you could answer some of the questions that I have.

 

I have rented a property in London, tenancy strating 15 October 2010. Paid a deposit £1300, six months rent in advance. It is assured shorthold tenacy. In November I have discovered tha my Deposit was not protected, contacted three schemes, all confirmed via e-mail that it has not been protected. Adressed the issue to agent, stated that according to the law they must place my deposit into one of the three schemes, they have ignored me. Adreesed again - same thing. Numerous times - pretending that they do not hear me, rejecting my calls, not answering my e-mails, being very rude, and hanging up in the middle of the conversation when I start talking about deposit protection. And, of course, not picking up the phone when I call back. Two weeks ago have again requested from three deposit schemes - still they have no records. I have given them two months notice and my tenancy ends on 15th of May 2011. I have had final year at university exams and could not afford these problems to affect my grades, so I had time to deal with thisissue only now. I know it is very late and I should have asked all those questions earlier.

 

Now, what worries me that except from the fact that agent have ignored me with the deposit protection issue, he had also changed the adress of his office without informing me, the e-mail adress that I have is hotmail account (not a specific organisation), my request to provide me with details of my landlord have been ignored twice as well. All that seems very shady, and I am just worried that they are going to disappear with my deposit after I move out. Oh also: no inventory have been made, and I have improved the property significantly.

 

I would like to go to the court, for TDS non-compliance in order to get my deposit back and x3 compensation. Going to use N208 form. The agents have caused me a lot of stress, tried to threaten me, have been assulting, I had to live at my friends house for a month because the property turned out to be full of cockroaches. . . . But this is not the issue - it is just I am reasonong why I think I deserve the compensation.

 

Now to questions. . . .

 

1) I was thinking that I should send them one last e-mail ( I have all the e-mails that I have sent to them previously), with a copy of completed form and suggested lba wording. I was thinking about giving them an option to return the deposit to me on the day that I move out, otherwise I would submit the claim for deposit AND 3 times compensation to court. DO you think this is reasonable?

 

2) As I am afraid that they can just disappear I would like to start the claim in the court right after the tenancy ends if they ignore me again, not to waste time. Or should I wait fro 28 days as it is said in the contract that my deposit will be returned "28 days after move out date"? Just don't want to loose my money, giving them so much time. . .

 

3) I have read on Shelter website that this cases are usually straightforward and I wil manage without hiring a lawyer. Do you think I need one? I am a student so £150 in court fees is already a big deduction from my budget

 

4) Are e-mails considered as evidence? Or should it be only post correspondence?

 

5) If the agent ignores me again, and then after I submit the claim to court offers to return the deposit - should I accept it? Will I be able to get my court fees back?

 

6) The name of the agent that I was dealing with is stated on the contract as a witness, and his occupation is stated as "Advisor", although his collegaue told me that he is the manager. Can it cause any troubles?

 

7) And overall - what do you think about my chances

 

Thank you in advance!

[rebel11]

Hi Kris

 

Welcome to CAG

 

The guys will advise as soon as they are available.

 

Heres some info:- http://www.consumeractiongroup.co.uk/forum/showthread.php?9176-Trouble-getting-my-deposit-back-from-my-ex-landlord!!

[Kristina2011]

Thank you rebel11!

 

The post have been very useful - from now on I am going to use recorded mail. . . . Hope that the adress of the agency which is listed on their website is correct, as the one which is stated on my contract is an unoccupied property.

[rebel11]

Hi kris

 

Also if you have a problem tracking the Agent down, contact Trading Standards, see if they can help track him/her down. Let us know how you get on.

[raydetinu]

It would appear that the deposit does not need to be protected until the LL is taken to court and 3x does not get enforced (weird latest ruling )

[Kristina2011]

Thank you raydetinu! That really is weird! Can not understand what it is implying. . . . Does this mean that the deposit can be protected AFTER the tenancy ends? I thought that it was not possible. . . . Anyway, what should I do according to the latest ruling? Not go to the court and just hope that the deposit will be returned? Sorry if I am asking stupid questions. . . .

[raydetinu]

The High Court has handed down its decision in the case of Potts v Densle

 

 

Conclusion

Whilst we welcome the release of the decision the area of law is not concluded. It does appear that you can register the deposit after the tenancy but the judge did not deal with implied or the actual requirements of the scheme because they had not been pleaded. It may be the case that it is an implied “initial requirement” of all 3 deposit schemes that the deposit be registered before the tenancy ends. Even if it is not an implied requirement is it likely that it will become explicitly stated requirement!

There of course remains the decision of Hashemi v Gladehurst which has the potential of changing this decision.

 

Not quite done and dusted yet, but latest case.

 

Bit of a minefield as judges seem to varying it all on a case by case basis.

so bit of a lottery at the moment.

[blackcatgirl]

I am "Potts" from the latest case in the High Court. I am not legally trained and so this is NOT legal advice, just an opinion! My thoughts are to take the LL through the small claims court for merely the return of your deposit (as per the old days pre housing act and before these schemes were put in place). As it wasnt returned prior to raised the small claim, your costs of filing it are added to the total claim and thus paid by the LL if/when he returns your money. He can, however, issue a counterclaim for damages which you have to defend against (again - just like the 'old days') - but my undertstanding is that the onus is on the LL to prove damages and not the tenant to defend against them.I wish you all the very best of luck

[raydetinu]

That sounds fair advice.

Sorry again Potts.

Just shows no matter how confident you feel about your case, you never know; and how these judges come up some weird interpretation that defies logic!?

Happens time and time again, thats why their are so many appeals.

the only people that gain is the solicitors, they dont loose, unless its on CFA. ( rare now )

[MARTIN3030]

Privet Kristina,

 

1) I was thinking that I should send them one last e-mail ( I have all the e-mails that I have sent to them previously), with a copy of completed form and suggested lba wording. I was thinking about giving them an option to return the deposit to me on the day that I move out, otherwise I would submit the claim for deposit AND 3 times compensation to court. DO you think this is reasonable?

 

2) As I am afraid that they can just disappear I would like to start the claim in the court right after the tenancy ends if they ignore me again, not to waste time. Or should I wait fro 28 days as it is said in the contract that my deposit will be returned "28 days after move out date"? Just don't want to loose my money, giving them so much time

 

Communication by letter with proof of posting is far better than emails now especially given that you are looking likely to be taking legal action.

It is reasonable that since you have had no positive response to your communications so far,to expect that you are very concerned about him failing to repay you on account of the timescales.Therefore,since you have already let him have sight of a claim form,this should be considered reasonable pre action protocols in these circumstances.I am sure a Court would take this view.

3) I have read on Shelter website that this cases are usually straightforward and I wil manage without hiring a lawyer. Do you think I need one? I am a student so £150 in court fees is already a big deduction from my budget

 

Yes,they are very experienced to know this,and the small claims Court is specifically geared up to allow people to use them with relative ease.

We will help you on the site.

If needs be we can also try and have someone to go with you to Court should it come to it.

I understand that you may have many questions-but you seem to have grasped much of it so far.

 

4) Are e-mails considered as evidence? Or should it be only post correspondence?

 

In some circumstances yes,yours should be ok to produce,the only thing is that he could say he didnt get them,but it would be reasonable to argue that if this is an email address that he had previously used to communicate with you,and had not provided you with an alternative,for you to use,then this would be highly questionable.

 

5) If the agent ignores me again, and then after I submit the claim to court offers to return the deposit - should I accept it? Will I be able to get my court fees back?

 

Blackcatgirls advice for Q5 is ok.

 

Do you have the addresses you need for service of the claim form by the Court ?

 

Court Managers have discretion for upfront payment/partial fee remission -if it is likely to cause you hardship paying the full amount,you should speak to the Court.

It is very understandable that in your final study year you need this money,these people who exploit students have no scruples at all,and I hope by your experiences on this site to date,you have been able to see that there are good people around who prefer to give rather than to take.

Keep us informed and ask away for any further info.

You can click on the black triangle for site team if you need urgent assistance quickly-theres always someone around.

[Kristina2011]

Privet Martin3030!I have two versions on how you've guessed that I speak Russian:1) It is either you know me))2) Or it is the issue with how Kristina is spelled: I've heard that only russian-speaking people spell it with K, while English and other spell it with CH! Anyway the guess was correct and it made me smile when I started reading your post =)Thank you very much for spending your time to read everything that I have wrote and especially writing a very clear and full answer to each one of my questions! It seems like now I know everything I need! I am very greatful to you!!! I have moved out from the property yesterday, and will have to come back there tomorrow to get the meter readings for EDF to pay outstanding bills. The agent called me on Friday and told me that they would like me to lock the keys inside of the flat on Saturday, and that they are going to come on Monday and inspect it. They did not ask me to be present at the time, I suppose this is because the inventory has not been done so there is nothing to argue about. Although I left the property in a condition 10 times better than when I have moved in, including various items that I have bought (like lamp shields, as before there were just wires with the lightbulb hanging from the ceiling; curtains, table covers etc.). And also I have cleaned it, although I did not have to and when I moved in the property was as dirty as if it was not cleaned for at least a year. Anywhay, I will have to come back there tomorrow as I remembered about the meter readings only after the keys were locked in inside. Noone have yet asked me to provide the details where the funds for the deposit have to be transferred to. I am going to remind them of that tomorrow. I have paid for deposit in cash to the agent so they do not have my bank details. I will post here how it goes!And yes - you are definately right! There are people who are ready to help and give! And I am very lucky to have got into a place with such a "high density" of those good people=) A virtual one, but still. . . .=) I hope you have a great start of the new week! Best regards (some how the message comes out all in one line, although I tried to make paragraphs - sorry)))

Edited May 15, 2011 by Kristina2011

[MARTIN3030]

Yes you guessed a little right.

I was married to a Russian and am now engaged to a Ukranian.

I have travelled much in Russia and Ukraine,and so know some Kristina's.

Also have many other Russian friends in UK.

Russian people are wonderful-it is just Russian government that is the problem.....but not discussing Duma's on your thread.

 

Spasibo.

[MARTIN3030]

Kristina-I forgot to add,if you have a digital camera,when you return-take some photographs of as much as you can.

This will give you some insurance later if they try to say anything was wrong.

You can always delete after its all sorted.

[Ed999]

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if you had a shorthold tenancy -

 

- Tenancy Deposit Scheme

 

- Tenancy Deposit Protection - First High Court Decision

 

- TDS eligibility, implication of breach and legal questions answered

 

 

The case of Tiensia v Vision Enterprises means that if the Landlord protects or repays the deposit even as late as the day of the court hearing, or at any time before judgement (if later), the court will not be able to award you the penalty of three times the amount of the deposit.

 

That was NOT overturned by the final Court decision in Potts v Densley, when the long overdue reserved judgement in that case was finally given.

 

In Potts v Densley, the tenant unaccountably omitted to raise the point that the TDS scheme rules require the landlord to protect the deposit before the tenancy ends; so that point is NOT finally decided. However, the ongoing case of Hashemi v Gladehurst has the potential of deciding this point.

 

 

Suing for the penalty, or merely threatening to do so, might cause the landlord to return the entire deposit to you, without any deductions, thus resolving a dispute over disrepair; although the landlord could, alternatively, put the deposit into a TDS scheme instead, and continue to argue for deductions for disrepair.

 

The Act expressly states that the parties to the tenancy cannot agree not to protect the deposit. So it's futile for the landlord to raise this defence - but many still try to!

 

While the deposit is not protected, any section 21 notice given to the tenant is invalid, so will not end the tenancy. But a section 8 notice can validly be given.

 

 

Also read the FAQ about what deductions the landlord can lawfully make from the deposit -

 

- Unfair deposit deductions

 

 

It is unclear whether you can sue, for failure to protect the deposit, while the tenancy is still in existence.

 

 

Where you paid a rent deposit to the landlord or his agent at the start of the tenancy, your statement of the facts implies that you believe you probably won't get it back. So your best tactic is not to pay the rent in future, i.e. to let him take it out of the deposit. He can't give you notice of eviction under section 21, if the deposit is not protected.

Edited May 16, 2011 by Ed999

[blackcatgirl]

That sounds fair advice.

Sorry again Potts.

Just shows no matter how confident you feel about your case, you never know; and how these judges come up some weird interpretation that defies logic!?

Happens time and time again, thats why their are so many appeals.

the only people that gain is the solicitors, they dont loose, unless its on CFA. ( rare now )

 

Heads up - latest ruling is (Potts vs Densley) decision 10 days ago.

Edited May 19, 2011 by MARTIN3030

[Ed999]

Heads up - latest ruling is (Potts vs Densley) decision 10 days ago.

 

 

I have now read the transcript, posted on-line, of the decision in Potts.

 

The Court of Appeal decided in the case of Tiensia v Vision Enterprises that if the Landlord protects or repays the deposit even as late as the day of the court hearing, or at any time before judgement (if later), the court will not be able to award the penalty of three times the amount of the deposit.

 

This was NOT overturned by the High Court decision in Potts v Densley. Read the full transcript of the Judgement, in that link, as it will give you some idea of the Court's approach to this type of case.

 

The High Court in Potts v Densley was not bound by the Court of Appeal's earlier decision in Tiensia, because in Tiensia the landlord had protected the deposit at a time when the tenancy still existed; but the High Court in Potts nevertheless rejected the tenant's argument that the Act requires the landlord to protect the deposit before the tenancy ends [at paragraph 55 in the Judgement].

 

In Potts, the tenant might still 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). But she failed to do so, thus she lost the case.

 

 

As a result of Potts, it is probable that a claim for failure to protect the deposit can be made whether or not the tenancy has ended [see paragraphs 51 to 53 in the Judgement]. Previously, it was unclear whether you could sue while the tenancy is still in existence; while at least one judge had rejected a claim made after the tenancy ended, on the basis that the tenant was no longer the tenant and so can't apply!

Edited May 20, 2011 by Ed999

[MARTIN3030]

while at least one judge had rejected a claim made after the tenancy ended, on the basis that the tenant was no longer the tenant and so can't apply!

 

Was this in small claims or High Court ?

[Ed999]

No idea. But it was a case mentioned in this forum, according to my notes, back in 2008: at a point when court cases concerning the new deposit regulations - introduced in 2007 - were in their infancy.

 

 

The decision in Potts v Densley has made the point obsolete now.

 

As a result of Potts, it is probable that a claim for failure to protect the deposit can be made whether or not the tenancy has ended: see paragraphs 51 to 53 in the Judgement.