DPS Tennat Wins Case ! 3 x deposit ( 1 x deposit awarded new law )

[only1carra]

My landlord is refusing to return my deposit and is making up excuses not to pay it back. The deposit has also not been placed into a deposit protection scheme.

 

The only uncertainty I have before I start to write a letter before action is the part in the legislation which says landlords do not have to pay into the dps if they live in the property.

 

I live in the annex whereas the landlord lives in the main house next door and totaly detached. My tenancy agreement has the landlords address as the anexe was only classed as a separate dwelling for council tax about 5 months after I moved in. I moved in exactly 2 years ago and moved out yesterday.

 

My tenancy was for 6 months initialy but has rolled month to month. The paperwork I have is only a tenant application form as this is all the landlord gave me, they do not fully understand how to rent properties but we have both signed it.

 

Your help is apreciated

Thanks

[mariner51]

I take it you have no family relationship to LL?

[only1carra]

No there's no family relationship

[Snorkerz]

This will definately be an AST providing the property is in England/Wales and the rent is under £100k (E) or £25k (W).

 

Although the lack of deposit protection does give you a little leverage, it doesn't make much difference. If you and landlord can not agree on deductions then you may have to sue whether the deposit is protected or not.

[only1carra]

Thanks for the replies. What I really need to know is, should the land lord definitely have paid the deposit in to the dps? When I moved in my address was classed as the same address the landlord lived in but now its classed as a separate dwelling

[Ed999]

What I really need to know is, should the land lord definitely have paid the deposit in to the dps? When I moved in my address was classed as the same address the landlord lived in but now its classed as a separate dwelling

 

It doesn't matter.

 

You have moved out. Therefore you have no realistic chance of succeeding if you were to sue for compensation for his failure to protect the deposit, because as the law currently stands such a claim can't succeed after the tenancy has ended.

 

Your question is only important if you have moved out unlawfully, i.e. without first ending the tenancy (e.g. you moved out without receiving a section 21 notice of eviction, and without giving one month's proper written notice to the landlord), such that the tenancy still exists and the rent is still running.

 

 

The rent deposit scheme applies only to shorthold tenancies. You cannot have a shorthold tenancy if the landlord shares the accommodation with you, i.e. a letting by a resident landlord. Whether the accommodation is shared is a question of fact, not a question of law, and thus is a question which only the court which hears the case can decide.

 

An essential element of a tenancy is that the let premises form a separate dwelling (e.g. a self-contained dwelling). This emerged from the leading case of Street v Mountford, decided by the House of Lords in 1985. I recommend that link to you, with its illustrations of how the test works in practice.

 

In every case it is a question of fact: the court which tries the case has to decide, on the actual facts of the case, whether or not exclusive occupation of a separate dwelling has been granted.

 

In 1985, Street v Mountford decided that if an occupier shares any facilities with another tenant, or with the landlord, then he does not have a tenancy. He is merely a lodger (known legally as a "licensee").

 

Go onto the website of the housing charity, Shelter. It can help you work out whether you have a tenancy or only a licence -

 

Shelter's tenancy checker

 

If you don't have a tenancy, you are completely ineligible to make any claim under the Tenancy Deposit Scheme.

Edited November 5, 2011 by Ed999

[only1carra]

Have posted about this before but never really got a conclusive answer so will have another go.

 

I rented a granny flat/ annexe until October last year. When I moved out the landlord refused to return the deposit. They had no justification for doing this.

 

Anyway I decided to take court action because the deposit was not placed into a protection scheme and my case against them starts in court next month. I am suing for the satndard deposit plus 3 x the deposit.

 

The landlord has made a counter claim and insists the property is not a seperate property. The landlord lives in the house next door to the annexxe.

 

Where do I stand on this? The land lord has offered the return of my deposit since they got the letter stating they are due in court but I dont see why I should accept this no. I have had to pay court fees and I do not see why the landlord should get away with this sort of behaviour so I want to see the case through.

 

I am prety confident of success in court but I am a little unsure now they have made this counter claim.

 

What would be the best thing to do????

 

Should I accept the deposit and ask for them to pay my fees or should I be confident about following the case through??

 

What I need to know is would my annexxe definitely be classed as a seperate dwelling???

 

Kind regards and your expertise and knowledge is much appreciated.

[The Carpet Cleaners]

For what it is worth my honest opinion, take the money and ask for the return of the court fees.

 

You will not win your case for the 3x deposit, and it will cost you a fortune.

 

As regards seperate dwelling. if you have your ow front door and do not share anything with the house next door ie kitchen, bathroom etc then you have a seperate dwelling.

 

You will still not get 3 x deposit though as you have left the property.

[only1carra]

Thanks for that reply

So does 3x deposit only apply when the tenancy is still running? Im a little confused because I cant see how this law would act as a deterent to landlords if they can still retain the deposit?

Thanks

[The Carpet Cleaners]

The law does not act as a deterent in its current form. This is however being looked at in April.

The only advantage a tenant has, if the LL does not protect the deposit is that LL cannot reclaim posession with a section 21 notice, as section 21 is not valid without the deposit being protected.

 

Can you not get your money back from the court if you cancel the case??

[only1carra]

No the fee is non refundable. Cheers

[The Carpet Cleaners]

Then what I would do, is once you have got back the deposit in full, and it is cashed, and clear in the bank.....

 

Send another letter before action for the return of the fees, after all his full payment to you is IMO a sign of admitting guilt of keeping it without due cause. You should then get back the costs..

[only1carra]

My tenant is taking me to court because I didnt secure his deposite. I've given him his deposit back, can I still get in trouble?

 

ANSWER 1: If you didn't secure the deposit at all, (and the tenancy is an ast) then i'm afraid so. if you secured the deposit late, then you may be alright - I believe it is still legally grey area with current cases.

 

ANSWER 2: If you've refunded his full deposit then the case should end there actually as you've already taken measures to show that his deposit was returned. The courts may still fine you for not securing it in the first place, but they can't ask you to repay 3 x the deposit as you'vew paid it back.

 

In my case the landlord has counterclaimed by saying they didnt need to protect it? What is the likely outcome of the courtcase going to be? If the court will not enforce 3 x deposit will they at least order my deposit is returned???

Thanks

[only1carra]

Ok have posted full details of this case before.

 

Basicly landlored refused to return my deposit on day of leaving the property

 

Deposit was not protected so I filed a case against the landlord for 3 x deposit

 

Landlord recieved LBA and decided to send my deposit to me

 

I refused as I want to sue for 3 x deposit and have already paid court fees

 

Landlord has made a counter claim for false damage to the property

 

The court case will now be heard on the 12th April

 

I have tried to settle the case, asking for my deposit plus fees which I think is extremely fair on my part!

 

Landlord has not replied so court case will go ahead

 

Any advice?? Should i pressure the land lord to settle or should I be confident about going to court with this?

 

Also the court letter says the claimant (myself) needs to pay a fee. I have already paid a fee at the start, do I now have to pay another fee even though the other party is making the counter claim? ( the defendant)

 

Thanks, really appreaciate the help on here!

[Steve__M]

Recent case law has suggested that once you have left the property your claim based on the LLs failure to protect the deposit may fail.

 

Another case mentioned only today suggests that a claim would succeed if the landlord had protected the deposit but not provided you with the "prescribed information" that explains how the deposit was protected. In your case, though there was no protection, so it may not apply. You'd have to follow up the case I guess.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?343935-TDS-Landlord-to-Pay-the-3x%282-Viewing%29-nbsp

[only1carra]

Are the courts still likely to order the return of the deposit or would they consider the counter claim even though the landlord failed to protect my deposit and have also DENIED that it was their responsibility to protect it?

 

Thanks again

[mariner51]

To which Court track has your claim been allocated?

[only1carra]

its not the fast track or anything, just normal court at the local county court

[ashmk]

Pressure to settle, no point p*ssing into the wind.

[only1carra]

made a claim using mcol , paid court fee.

 

few months later case is now to be heard in court 12/4/12 on small claims track.

 

Just noticed on my letterwith the notice of allocation to small track hearing it says a hearing fee

of £110 should have been paid by 6/4/12 or the hearing will be removed from the list??

 

Does this mean I have to pay a second fee? I thought when I started the case the fee I paid was

for the court hearing?

 

A little confused here, please help!

Thanks

[MW2]

Hi thought the same as you but you do have to pay a hearing fee also.

[only1carra]

oh dear, my case is due to be heard tomorrow, does this mean it will be cancelled? Also the othe rparty is making the counter claim, surely iy is they who pay the fee? or do both parties pay?

[mariner51]

The initial claimant pays the hearing fee, counterclaim is a form of defence. If you win your claim, hearing fee will be added to your claim & payable by loser.

[only1carra]

Hi all

Well had my court hearing on Wednesday 12/4/12 and despite the advice on here not to pursue for the 3 x deposit, the judge actually ruled in my favour!

The judge did not enforce 3 x deposit but just the return of deposit plus 1 x deposit but still this is great success.

 

The Landlord tried to play dumb and even denied ever recieving a deposit! This was despite them returning the deposit to me (which i refused) after I threatened court

action just before Christmas.

 

The Landlord tried to make a counter claim for damage during the hearing but the judge dismissed it because no documents at been submitted to him before the hearing

so the evidence they brought alon could not be considered.

 

However, the judge has given the landlord 14 days to put together a proper counter claim and submit documents to him, so I ask the following questions:

 

1) do they have valid grounds for a counter claim bearing in mind the deposit was proven to have never been protected and a fine issued

2) There was no check in or check out inventory and I caused no damage, would I have any problem defending this?

3) The law changed on 6/4/12 and the jusge could not awad 3 x deposit automaticly, does the old law not apply in this case because the case was brought

requested long before the change in law?

 

Many thanks and I hope my victory gives other tennants hope, the judge said the only reason he didnt award 3 x deposit is because it was the landlords 1st offence!

[citizenB]

Well this is good news for you