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

[MARTIN3030]

merging all associated threads.

[only1carra]

yes it was very pleasing to get justice, only problem now is they are putting together a counter claim for damage to the property which I am not responsible for!

[elstree324]

yes it was very pleasing to get justice, only problem now is they are putting together a counter claim for damage to the property which I am not responsible for!

 

Congratulations! I had a similar problem with my previous landlord and, in fact, my current landlord! Are they all at it these landlords?! Both are letting agents. I don't understand how you can sue for return of deposit only during the tenancy and not AFTER the tenancy ends. Surely if you send a letter before action during the tenancy, the landlord just rushes off ( as my current landlord has done ) and protects the deposit?! After you move out youre no longer a tenant and the landlord couldn't protect the deposit any way? How then do you get it back?

[only1carra]

Elstree the judge was pretty clear in his summing up that you CAN take the landlord to court after the tennancy has ended so this is good news for us tenants! I hope you have success with your current situation and I am more than happy to offer advice (although im no expert) at least I have some recent relevent experience of success!

Good Luck and thanks

[elstree324]

My previous landlord took a deposit and buried away in the very small print called it rent in advance not a deposit. He initially sent me a rent statement showing that I was 1 month's rent in advance. Naively I did not query this, thinking it was compensation for all the horrendous problems I had on moving in. In hindsight, I should not have paid the last month's rent; after all, according to the landlord, I was 1 month's rent in advance. You can guess the rest. Withheld so called deposit. I threatened to take them to court but the whole episode had made me ill. Cut my losses and went.

 

My new landlord similarly took the deposit and did not protect it. When I was having problems getting repairs done I confronted the new landlords with the non protection of the deposit. Within 2 days the deposit certificate arrived and the repairs were done! That is all very good, but it took them 6 months and my threats for them to protect the deposit. This law really has holes in it!

[only1carra]

so bad that they made you suffer like that. In my experience this seems to be the case with all landlords, the law is not strict enough for them,and now they seem to be making it even easier for them, so annoying!

[elstree324]

so bad that they made you suffer like that. In my experience this seems to be the case with all landlords, the law is not strict enough for them,and now they seem to be making it even easier for them, so annoying!

 

Great news!!!!

 

The Localism Act 2011 to the rescue

Tenancy deposit enforcement regulations having been left in tatters by the lords, government girded its loins and tried again.

The Localism Act 2011(section 184), which came into force on 6 April 2011, was the vehicle for this, and the rules are now amended as follows:

1. Landlords (and agents) now have up to 30 days to protect the deposit and serve the prescribed information on tenants. This is welcome as the 14 day limit was difficult to comply with, bearing in mind the time it can take for cheques to be sent by post and payments transferred between bank accounts.

2. After the 30 days, although the deposit can still be protected late, this will no longer provide any defence to a claim by the tenant for the penalty payment.

3. The amendments also allow tenants to bring claims after the end of the fixed term. This is good news, as in most cases it is only after the tenancy has ended, and the tenant seeks the return of his deposit, that the non protection comes to light.

4. The penalty sum has changed and is now between one and three times the deposit, the precise amount to be decided by the judge.

[mariner51]

I beleive the OP was very fortunate with the Judge s/he got.

 

Earlier advice, from knowledgable Forum members, was correct. Pre 5 April rules & precedents meant that 3x penalty was not possible via small claims route, only full County Court with £1000+? fee. Because the hearing was after 6 Apr the Judge applied the new Localism Act variable penalty. IMO there may be possibility of LL appeal, as it applied to existing pre 5 Apr AST and LL is allowed until 5 May 12 (30 days) to protect or return deposit before an offence is committed & when new penalties would apply.

 

I await westmintser et al opinions

[Steve__M]

Well I did say there was a possibility of a claim relating to the fact that no prescribed info was provided:smile:

 

Have to say, though, that I'm surprised judge felt able to apply the new law to a tenancy that had ended as that would open the doors to thousands of past cases.

[only1carra]

I beleive the OP was very fortunate with the Judge s/he got.

 

Earlier advice, from knowledgable Forum members, was correct. Pre 5 April rules & precedents meant that 3x penalty was not possible via small claims route, only full County Court with £1000+? fee. Because the hearing was after 6 Apr the Judge applied the new Localism Act variable penalty. IMO there may be possibility of LL appeal, as it applied to existing pre 5 Apr AST and LL is allowed until 5 May 12 (30 days) to protect or return deposit before an offence is committed & when new penalties would apply.

 

I await westmintser et al opinions

 

This is an interesting point you make but the tenancy ended in October. The Landlord DID return the deposit BUT only after the LBA. However the LBA requested the deposit plus 3 x deposit, the judge said this was a clear cut case and said to the landlord that they were VERY LUCKY because a week before he would have certainly had to award 3 x deposit. This casts major doubts over the advice that has been posted on here surely?

 

Also to add, the judge said after the hearing on the 12/4/12 that I should now cash the cheque (deposit) that was returned to me in DECEMBER. The judge then said the 1 x deposit must be paid within 14 days. I cashed the cheque on the day and have just cheques with my bank, the CHEQUE HAS BOUNCED!

 

Looks lkike the landlord is ignoring the court order or maybe the cheque given to me in DECEMBER was a bouncy cheque from day one???

 

What should be the best route now? Also the landlord still plans to make a counterclaim, the judge already said a counterclaim looked weak, what chace would they have now after further embarrassing themselves?

 

Advice much appreciated

[Steve__M]

the judge said this was a clear cut case and said to the landlord that they were VERY LUCKY because a week before he would have certainly had to award 3 x deposit. This casts major doubts over the advice that has been posted on here surely?

 

There is a (somewhat bizarre) higher court judgement that provides landlord with a defence (under the old law) if the tenant has moved out. On the face of it, the defence that was successful there would have been a strong argument in the LL's favour if he had used it because it is a higher court judgement.

 

However, all cases are different, or it may be that the judge in this case was not aware of this case. LL missed a trick in not bringing the case to the attention of the judge.

 

Regardless of whether the judge would have awarded 3x prior to the change in law, he has now awarded 1x for a case that happened prior to the rule change which I (not being a lawyer) am surprised by.

[Steve__M]

According to the following thread

 

4. A tenant whose tenancy has determined will still have a cause of action under s.214 (presumably with a 6 year limitation?)

 

http://www.swarb.co.uk/phpbb/posting.php?mode=reply&f=20&t=13607&sid=66e5729eabae91601c0b737770dbfd15

 

Which indeed suggests that many of the tenants who have been put off by the previous law now have a strong case to take their LL on under the new legislation!

[Steve__M]

This page suggests that the new law only applies to tenancies that still exist on April 6th.

 

http://www.communities.gov.uk/housing/privaterentedhousing/tenancydepositprotection/tenancydepositprotectionfaq/

 

Are the changes retrospective?

 

No. The amendments apply to any deposit received in connection with an assured shorthold tenancy which the Housing Act 2004 applies to and which was in effect on or after 6 April 2012.

What about existing tenancies where the deposit is not protected?

 

Where a deposit taken for an assured shorthold tenancy before the 6 April 2012 has not already been protected in one of the government authorised schemes, the landlord or agent will need to protect the deposit within 30 days of 6 April 2012. If the deposit is not protected within that 30 days the landlord or agent would be subject to the full range of penalties under the amended legislation. This only applies to deposits which the Housing Act 2004 applies to.

 

 

I've not read the actual law, and as we know, what the government thinks the law means is not always what judges think the law means.

[raydetinu]

this judgement as it is in a lower court will not be treated as a precedent and could well be appealed.