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Hi there,

 

I have used this site in the past to recieved help and information from other posts however on this occasion I cant find the answer to my question.

 

As it stands im currently in a private rented home and have been since november 2010 i made a payment of £350 towards a bond however the landlady stated that she didnt want anyone knowing about this bond, there is no mention of this payment in the tenancy agreement.

 

I instructed her by law she is required top place this money in a deposit scheme and she informed me that she would do it after 3 months had passed.

 

Well im still waiting I have sent email to ask about the deposit but still have not recieved no confirmation I have checked online to see if anything has been deposited but nothing,

 

I am shortly due to leave this property however when i moved in the property was badly decorated and the carpets all worn i believe its the landladys intention to keep the bond money and because its not protected i want to try get it back.

 

I have proof that payment was made and the other day i found a template letter basically advising my landlord / landlady that i because the deposit was not protected i want this money back other wise i shall make a small court claim however i cannot find this template letter please could someone help me found it. I have tried everything.

 

Because there is no mention of a deposit would i stand any chance trying to get this money back. When i moved into the property, a local housing support officer was fully aware of the condition because this company provided a bond guarentee scheme for the previous tenants. would i be able to get a copy of his findings of the property when it was empty.

 

i have since redecorated the whole property from my own expense and have cleaned all the carpets there should be no reason why this landlady should keep my depost but i dont trust her at all.

 

Any information would really be apprciated and that template letter even more apprecated. I would like to give her the chance to return the money before i take it to court.

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Why did you sign the AST if no mention was made of the bond/deposit?

 

Tenancy was signed 11 nov 2010 bond payment made dec 2010. If I wanted proprty I needed tenancy I'm a single father with 1 child I coukdnt afford wait

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I wonder if the Inland revenue would be intrested in this case.

 

Sounds like she has something to hide.

Ash.

 

If you think I have helped you, please add to my reputation by clicking the star button to the left.

Thankyou.

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Do you have evidence of the payment?

 

Have you paid your last month's rent?

 

It may be simplest to inform your LL that given there is no mention of the deposit in the contract that you would like her to regard it as payment towards your last month's rent.

 

I can't think of a tax reason for hiding a £350 payment. I think it would be quite easy for me to use deposit money to make repairs without the inland revenue knowing that the repairs were covered by the deposit. The more likely reason is to avoid deposit protection law (which is now all but toothless).

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Note for regular users: This posting is my usual commentary on Tenancy Deposits.

 

 

My comments only apply if the premises are entirely within England and Wales, and you are 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.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Tenancy Deposit Scheme

 

The landlord or agent must pay the deposit into the custodial deposit protection scheme, or hold it in a separate account protected by a relevant insurance scheme.

 

The tenancy agreement must state which scheme is to be used, and the circumstances in which all or part of the deposit can be withheld at the end of the tenancy.

 

 

Read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, under the Housing Act 2004, if you were granted a shorthold tenancy:

 

Tenancy Deposit Scheme

 

Tenancy Deposit Protection - First High Court Decision

 

TDS eligibility, implication of breach and legal questions answered

 

 

Where you paid a rent deposit to the landlord or his agent at the start of the tenancy, you probably won't get it back; so if the landlord is holding the equivalent of one month's rent your best tactic is not to pay the final month's rent, when the tenancy ends, i.e. to let him take it out of the deposit.

 

Alternatively, you can sue 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.

 

 

Suing for the penalty

 

(a) If the tenancy is continuing: you CANNOT sue for the return of your original deposit; but you CAN sue for the statutory penalty of three times the amount of the deposit.

 

But it seems likely you will lose. The landlord, if properly advised, is sure to protect the deposit if you sue for the statutory penalties, and to give you the prescribed notice also. And if the tenancy still exists when the hearing date arrives, a claim for the return of your original deposit would fail.

 

(b) If the tenancy has ended: you CAN sue for the return of your original deposit; but you CANNOT sue for the statutory penalty of three times the amount of the deposit - except, perhaps, if your claim is made under section 213(5) of the 2004 Act.

 

The outcome is uncertain. It is not clear whether a claim under section 213(5) 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; and it's likely that a landlord, faced with a claim for repayment of the original deposit, will allege disrepair by the tenant in order to try to persuade the court to let him keep it.

 

 

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 affected by the High Court decision in Potts v Densley. In Tiensia the landlord had protected the deposit at a time when the tenancy still existed; in Potts, where the landlord protected it after the tenancy had terminated, the Court rejected the tenant's argument that it was too late for the landlord to protect the deposit once the tenancy had ended [see paragraph 55 in the Judgement].

 

In a further development, the Court of Appeal has decided, in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected by the landlord, that section 214 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its protection in a TDS scheme) are available to the Court. The Court said this can only be the case if the tenancy is still in existence, so the penalties for non-protection of the deposit are NOT available to the tenant after the tenancy has come to an end [see paragraph 37 and 42 in the Judgement]. The tenant therefore CANNOT succeed in a section 213(3) claim once the tenancy is over.

 

 

The practical effect of Gladehurst is that the tenant must make any claim under section 213(3) at the BEGINNING of the tenancy. Remember, a shorthold tenancy can't be brought to an end by the landlord, by notice, in the first six months, nor during any fixed term; and it can't be ended by a section 21 notice at any time after that, either, if the deposit is not 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 failed to do so. 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 your 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 claim only under section 213(3) you are likely to lose, just as the tenant lost in Potts. You need to claim under both.

 

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

 

If you sue, the crucial issue is whether the court hearing takes place BEFORE or AFTER the tenancy has ended, not whether the tenancy still existed at the time you began the court proceedings.

 

 

Reconsidering Gladehurst

 

Because Gladehurst concerns a section 213(3) claim only, it does not necessarily form 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.

 

Alternatively, Gladehurst is limited as an authority to those cases in which the deposit was never protected at all, and does not apply to those in which it was protected late.

 

Also, IMHO, Gladehurst was wrongly decided. The Court of Appeal said section 214 only makes sense if both options contained in it (i.e. return of the deposit or its protection in a TDS scheme) are available to the Court, and that this can only be the case if the tenancy is still on-going. But, in point of actual fact, where the tenancy still exists the court has no jurisdiction to order the return of the deposit - because the purpose of the deposit is to meet any rent arrears or disrepair that exists when the tenancy ends.

 

These points, taken together, seem to cast doubt on whether a claim under section 213(5) must inevitably fail, where the tenancy has ended; which is why I suggest the point is not finally settled. However, before you start any court proceedings it would be prudent to obtain advice from a Solicitor as to whether a claim made under section 213(5) has a realistic prospect of success if the tenancy ends before the final court hearing takes place.

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

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