Deposit Not Protected....what to do next?

[ziderman1983]

Hiya,

 

I began letting a property in November 2010 through a private landlord (via a letting agent who doesn't manage the property) on an assured tenancy agreement for 6 months, which has now turned into a 'periodic' rolling contract. Everything with regard to the landlord has been ok (fixed a few issues i have had and generally not interferred), but it is proving difficult to actually get a deposit scheme certificate off of them. I have already done the following:

 

* Contacted the landlord (and letting agent) requesting the certificate on multiple occasions.

* Contacted all 3 government deposit schemes and none of them are protecting my deposit or ever have done since November 2010.

 

What would be the next best course of action?

 

Cheers,

 

Ziderman

[MrShed]

Proceed to court, to enforce them to place the deposit in a scheme - but legal action will almost certainly trigger eviction proceedings. You say you have contacted them - have you done this formally, in writing?

[ziderman1983]

Hiya,

 

I wrote them a letter in January, which they claim to have never received. I have since done most communication with them by email (or occasionally the phone), as i seem more likely to get responses this way. I shall send them another letter this week and make it recorded/signed for. Is there anything specific i need to mention in this letter, other than them to show me the deposit certificate?

 

What makes me not totally at ease is his contact address given by the letting agency is a company, which i can find absolutely no information on anywhere. Companies house lists it, but its accounts are dormant. That's not good is it?

 

How does the proceeding to court happen exactly? Is there a guide somewhere of how i proceed with this down that route?

 

Cheers,

 

Ziderman

[MrShed]

What have their excuses been..?

[ziderman1983]

Their excuses at the beginning was that it was in the post, but obviously never was. Then they were trying to push me to sign a new contract once the 6 months were up, so i told them i would sign it once i had seen the deposit protection certificate. They then said they would show me it (but never have), but also at the same time said it was no longer protected as the contract had expired and they were going to put it into a different scheme once the new contract was signed. I did tell them that since the 6 month contract was up, then it was in a rolling periodic contract and should still be protected. I have since then contacted all 3 deposit schemes again, to again be told they had never had the deposit.

[MrShed]

OK I will act a practicality question rather than "letter of the law" question. Other than that issue, are you generally happy in your tenancy, and are you wanting to remain there for an extended period of time?

[ziderman1983]

I would say i am happy with the place i am renting currently and would like to stay there for atleast a little while yet. The cost and time/effort of moving again is not something i want to do just yet (on average i usually move around every 18 months). Just on the flip side i also don't want to get screwed over with the deposit either, as i don't trust the landlord in that respect as far as i could throw him.

[MrShed]

My personal advice would be as follows. I would forget about the deposit protection for now, as any further attempted enforcement may result in eviction proceedings.

 

I would park it, and bring it back up when you know you wish to leave.

[Ed999]

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.

 

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

 

 

Mr Shed's suggestion is the only viable course of action if you wish to avoid being evicted.

 

Bear in mind that if you are a shorthold tenant, with a periodic tenancy, you can be evicted from the premises by simply being given 2 months notice, in writing, taking effect after the initial six months ends (expiring on the last day of a rent period). No reason has to be given. Where a dispute arises, concerning any matter, the landlord can simply end the tenancy in that way.

 

 

Authorised Providers

 

The deposit can be protected in a TDS scheme run by any of the three authorised providers. You can check on-line with each of them, to find out whether they hold the deposit:

 

• https://www.depositprotection.com/is-my-deposit-protected.aspx

 

• http://www.thedisputeservice.co.uk/is-my-deposit-registered.html

 

• http://www.mydeposits.co.uk/tenants/get-started/check-your-deposit

 

If you discover the deposit is NOT protected, this letter might assist you:

 

• http://tenancyanswers.ucoz.com/index/my_deposit_isn_t_protected/0-4

 

In theory, you can sue for compensation of three times the amount of an unprotected deposit. But, in practice, such compensation is almost impossible to get.

 

 

 

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.

 

 

(a) While 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) When 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.

 

 

If you sue AFTER the tenancy ends, 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]

 

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

 

 

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.

 

Treating the deposit as the final month's rent, and thus already paid, allows the tenant to have enough money to pay the deposit on the next tenancy.

[ziderman]

Hiya,

 

Right i'm back now and bringing up this old case that some of you may remember. The situation now is as follows:

 

* Had to move out for various reasons (not landlord related) and in a whirlwind flatmove i was out within 2 weeks to a new place. This unfortunately was just after rent day (gave in 4 weeks notice a day after rent went out). This meant i couldn't withold last months rent as suggested above

 

* Landlord is claiming for £2288 of ridiculous damages that were all there prior to moving in.

 

* No inventory ever took place before or after moving in.

 

* Never put deposit in a deposit scheme.

 

* Apparently the property is managed by another company since last January.

 

So what do you suggest i do? I've politely asked for the deposit back and proof of an inventory and proof of a deposit scheme. This obviously doesn't seem too forthcoming.

 

Any help/suggestions would be much appreciated.

 

Cheers,

 

Ziderman

[mariner51]

As prev. LBA for return of deposit followed by County Court for return of deposit. LL will counterclaim for cost of damage.

 

Since your T on giving Notice was SPT and you state "(gave in 4 weeks notice a day after rent went out)", he will prob add 1 month rent as you Notice was not served by end of a T period, so could not have expired when you left, so next month rent would have been due. (assuming SPT start date & rent die date coincide) Also your Notice period is 1 cal month, not 4 weeks.

[ziderman]

Hiya,

 

Many thanks for the reply. What exactly is an LBA and how do i do it? I'm new to all of this and have never had a deposit not put in a scheme before or had the need to take anyone to court.

 

With regards to the payment date and tenancy end date, there is a slight difference as i pay it earlier (otherwise i'd spend it!) when i get paid. So that would be a week or 2 at max if we included an extra month. We even accommodated the landlord by moving out earlier than needed, due to him having tenants already lined up. How can he try to claim for double rent? Sounds bonkers!

 

How come it is county court and not small claims court? Or is it the same? What are the costs involved? Here was me thinking the deposit scheme was meant to make it easier for tenants to get their money back!

 

Cheers,

 

Ziderman

[ziderman]

Hiya,

 

Ok i've had a little further read on the site and now see a LBA is a letter before action. Is the one posted at the top of the post named 'unfair deposit deductions' still relevant to use as a template or has the law changed dramatically since?

 

So basically i think i'm at the stage to send off this LBA, but just a couple more questions. I have a landlord named on the tenancy agreement (lets call him Mr A) and the money was paid into a company account during the tenancy and not directly to Mr A's bank account. I have later found out the owner of the property is a director (Mr B) at that company and i have no idea if Mr A actually ever existed, as i wouldn't put it past them to make up a fictional name if possible. So who do i send the LBA to? Mr A, Mr B or the company that i was paying my rent to? Or some combination of the 3? I just don't want to mess up something critical like that.

 

Could someone also confirm what the costs are of taking them to court (deposit is for £820)? I have seen varying costs bandied about and just want to confirm what it was. Also, does it sound like i have a strong case? There was no inventories (he even refused a check out inventory) and the money was never put in a deposit scheme and he has basically lied in our email dialogue about various things (he even claims to have sent me a 2 month notice period at one point that i apparently ignored?!?). I won't take what you say as legal advice, but just an opinion, as i wan't to gauge what people think

 

Cheers,

 

Ziderman

[ziderman]

Also one more thing, as this is a joint tenancy (me and another guy), then do the letters need to be signed by both of us? or is it fine to be just from me? I don't want to get that bit wrong either

[ziderman]

Hiya,

 

After submitting the LBA and receiving no response after 14 days i am now prepared to use the MCOL service (or is there a better way?) to submit a case to retrieve my deposit. Before i do so, i have a few questions:

 

* How can i get it so myself and the other tenant are both named as claimants and not just myself (so i am therefore not fully liable to his possible counterclaim)?

 

* What level of detail is needed in the claim particulars? Is it best to be straight to the point or should i explain things in detail?

 

* I've ticked yes to sending detailed particulars of change. I assume this is so i can send a copy of the tenancy agreement, land registry info etc? What else should be sent with this that i haven't included? Do i just send it to defendant or do i need to send to the court too?

 

* Do i claim interest under the county court act or leave that unchecked and claim under a different act, as i assume i can claim interest from the day of judgement?

 

Sorry if the questions are very basic. I've just not been through the process before and if anyone can guide me to not messing it up, then it'll be much appreciated

 

Thanks in advance,

 

Ziderman

[mariner51]

* How can i get it so myself and the other tenant are both named as claimants and not just myself (so i am therefore not fully liable to his possible counterclaim)?

In a joint Tenancy all occupants are The Tenant, LLs counterclaim should be against 'The Tenant' and naming all joint Ts or just those who can be traced for Service of Court docs. He could pursue any one joint tenant who would be liable for full amount. That T would then have to sue his other flatmates for their share. Ther is no way I can see which will allow you to 'protect' yourself.

 

* What level of detail is needed in the claim particulars? Is it best to be straight to the point or should i explain things in detail? Best advice - keep it simple & concise, don't waffle. Judge will decide on FACT. he will prob switch off if explanation is too involved.

[ziderman]

Ok cheers for the reply. I've had a read elsewhere on the forum and it looks like the particulars of claim could go as follows (correct me if it looks wrong anywhere):

 

The claimant is a former tenant of XXX. The claimant occupied the property on an assured shorthold tenancy from 30 October 2010 to 14 April 2012 with co-tenant, XXX.

 

The deposit was never protected in a government-approved tenancy deposit protection scheme by the landlord during the period of the tenancy.

 

The claimant seeks the return of £820 held by the defendant by way of a deposit on a rental property, which he has failed to return despite repeated requests.

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 28/04/2012 to 30/05/2012 on

£820.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.18.

 

Am i claiming the interest from the right date? I've done it from 14 days of when the tenancy ended. Is that correct or should it be something else?

 

Thanks in advance

 

Ziderman

Edited May 30, 2012 by ziderman
Change of question and wording

[ziderman]

Ok here's a quick update on this and a couple more questions i have:

 

 

I sent in my MCOL request against the landlord listed on my AST and the property owner according to Land Registry and they failed to reply to the courts and thus i requested a judgement and was issued one.

 

 

Now from my understanding is i can now request the judgement to be enforced and have 4 options for this which are:

 

 

a warrant of execution (sending bailiffs to collect payment or goods for auction)

an attachment of earnings order (deductions from wages)

a third party debt order (usually used to freeze money in bank or building society accounts)

a charging order (a charge on land or property owned by a debtor)

 

 

My first question is do i have to wait any period of time to enforce this judgement? I have not seen any guidelines listed for that, so i assume it can be instant?

 

 

Secondly, which do people think is most likely to succeed? What i know for definite is when as tenants we had to pay into company x account for our rent and not into a personal account of the listed landlord and the current tenants still do the same. The address given by the landlord is a c/o of the letting agent. I know no information about the property owner other than an address which is listed against him on the company directors website.

 

 

Thirdly, can i put both defendants down for whichever method i choose in the same form or do i need to pay twice?

 

 

Fourthly, if i choose one of the 4 methods above and it doesn't work out, does that mean i can choose from one of the 3 remaining ones? Or is it one chance and that's it?

 

 

Hopefully not too dumb questions and if it is better placed in a different board now, then feel free to move it If you need anymore information from myself, then feel free to ask and i will supply that information.

 

 

Thanks in advance,

 

 

Ziderman