Scottish tenants: claim your damages under tenant deposit scheme

[JonathanG]

Hi Lauryn, I was just wondering if you have a link to the results of the case online?

Cheers, Jonathan

[LaurynM]

Hi Lauryn,

Thanks for your reply, I must say I am very encouraged by it. I shall try to explain the situation I face. The defender's solicitor is arguing a time bar on the the application because in his 30 years experience, dealing with personal injury no doubt, he feels that a time limit is taken to mean that the writ must be lodged, warranted and intimated or served within the given period. This may be the case for personal injury, I dont know, but what is certain is that this is new legislation where the legal interpretation of the terms 'application to court' is yet to be fully understood. The Sheriff at the last hearing seemed to want a 'proof before answer' to sort this out. It is becoming quite intimidating and I am supposesd to get legal representation to take this on now as it is supposedly beyond a lay person to argue in such a debate.

However, if you say that you applied to court within a couple of days of the expiry of the limit, then that is exactly like my case. And if the warranting and serving proceedure is not taken as being within the limit (which surely it can't as you found that this can be a longer period which is not clearly defined) then the date stamp of the clerks office when they received the application is the only important date.

For clarity, my dates are; lease supposed to end two weeks early on 5 June and I applied to court and got a stamp on 3 September. He did not repay the two week early amount but repaid as if the lease at expired at its full term of 19 June. Which is obviously why I got upset and found out he had not complied with legislation. I also wrote and gave him the opportunity to rectify but also got no reply and he even states in Answers that he didn't receive this letter, which is impossible since I sent it to his home address and the address of the property I rented where he regularly picked up mail.

It is now my feeling that I don't need to worry too much about this time bar, the legal debate on this subject or having expensive representation.

I am a little disappointed that you only got three times the amount owed, it should really be three times the deposit. However it is a good result.

Anyway, I am supposed to attend on 21 Feb for an evidential hearing and maybe a proof before answer about the time bar. I am running out of time and was going to seek and adjournment because I haven't been able to get suitable representation for that day. What do you think I should do? Given your information about the time limit I am totally encouraged that this thing has got totally carried away and I should just appear and get on with it. It has been a long unnecessarily protracted affair in which I have been made to feel somewhat incompetent. It is intimidating but I will not be cowed!

Yours, Jonathan

 

Jonathan,

 

Without complicating things any further, it is 3 months from the tenancy ending to apply to the court, which it would appear you have done. This is confirmed here:

 

http://www.scotland.gov.uk/Topics/Built-Environment/Housing/privaterent/landlords/tenancy-deposit-schemes

 

"You will have up to three months after the tenancy has ended to make an application to the court for sanctions against a landlord who has not complied with the Regulations".

 

I would attend court on 21st and advise you wish to instruct a solicitor, if that's what you want to do. The landlord I took to court did this (then never bothered turning up the second time).

 

I hope this helps.

 

Lauryn.

[JonathanG]

Hi Lauryn, thanks for the advice. It would perhaps be advantageous to have a copy of your judgement to take to court with me. Would you be able to tell me the pursuer versus defender names so I can find it?

Thanks so much, Jonathan

[JonathanG]

Hi Lauryn, I see from the Courts website that your case is not listed so I wondered as a favour whether you could possibly send me a photocopy? I would be so enormously grateful and it would undoubtedly assist my case and simplify the whole matter.

Best regards, Jonathan

[LaurynM]

Hi Jonathan,

 

The case is not listed, only cases with a significant point of law and such like are listed. What would you like a photocopy of? I don't have a ruling copy, only the decree which was granted.

 

Sorry I can't help anymore. Also the case isn't under "Lauryn".

 

Kind regards.

[JonathanG]

Hi Lauryn,

 

Thanks for getting back. Yes I realise now that only important points of law are published. I feel that my case would be bolstered a great deal, given the time bar defence, by anything which could be provided as written support. I have to appear on Friday this week and I am encouraged to go ahead without any further delay given the dates that you have provided. However, of course it will not mean much to them unless I can refer to the case by name, number etc.

I would be most eternally grateful if you could perhaps email me something or attach something to me. I don't know what the rules on the forum are, I only just joined. But please consider whether you could help out by sending something over. I am determined that this can be resolved easily and without too much more complication, as is intended by the summary application process.

Warm regards,

Jonathan

[LaurynM]

Jonathan,

 

You don't seem to be able to receive private messages and I can't/won't share such personal details on a public forum sorry.

 

Lauryn.

[LaurynM]

This is the major case in Edinburgh which has received a lot of media attention

 

http://www.scotcourts.gov.uk/opinions/B641_13.html

[starfish1]

I am messaging to ask for some help/advice.

 

We were tenants in Scotland to a private landlord. He has admitted that he failed to lodge our deposit in any scheme. However, he has kept our deposit and we have been mis-directed through the courts towards a small claim, when we should have been completing a summary application.

 

Can you help or advise on how to complete a summary application form please.

 

Ian and Sarah

[LaurynM]

Hi Ian/Sarah

 

Firstly, you must download a Form 1 which can be found in the following link:

 

https://www.scotcourts.gov.uk/taking-action/summary-applications

 

If it is helpful, I can send you a copy of my form showing the detail I included.

 

Kind regards

 

Lauryn

[LaurynM]

I have attached my complete form with personal details removed. Please only consider this as a rough guide - I completed it myself and it is not definitive.

 

[ATTACH=CONFIG]51491[/ATTACH]

 

[ATTACH=CONFIG]51492[/ATTACH]

 

[ATTACH=CONFIG]51493[/ATTACH]

[starfish1]

Massive thank you.

 

Ian and Sarah

[Safety Dance]

Hello there

 

Firstly, howdie everyone!! I have just joined this forum after avidly reading this thread as I have been at a loss as to how to progress my situation. Thank you all so much for the help and advice, this is a very useful forum. I would like to briefly outline my case and then ask a couple of questions if that is OK? I will try to keep it brief and omit any details not necessary.

 

We moved out of a tenancy in May at which point the landlord agreed verbally on final inspection to repay our deposit in full once they had received final bills for Council Tax and electricity. These two bills were paid and we kept messaging and he delayed but we had no reason to mistrust him and gave him time. Then he went quiet and did not reply to texts, emails or answer his phone. After three weeks he made contact and apologised for delay and stated in text (a copy of which I still have) that he would repay the deposit. Since then we have heard nothing and have not received the deposit back.

 

Getting worried, I started to look into the matter and realised none of the deposit schemes had been used so sought legal advice and was advised to complete a Summary Application through a solicitor. A solicitor agreed to take on our case but then we began to become wary of fees/hassle as we are not eligible for legal aid but cannot afford to be out of pocket so I have decided to go it alone. Having spoken to what seems like every single agency in Scotland over the last couple of days I have found it almost impossible to find anyone who can aid me with the process so I headed to good old Google and found this forum. The information on here has been massively helpful and LaurynM I would like to say a massive thank you for all of your advice and for copies of your forms. I have used them to complete my own forms but have a couple of questions and there are a few differences in our cases so was wondering if you may be kind enough to help? I really want to resolve this and want as many people in my position to be able to benefit from any success I may have so wondered the best way to progress? If you are OK to help me can I ask my few questions on this forum, visibly so that people can see?

 

Thank you for your time and I hope you may be able to help me.

 

Regards

SD

[LaurynM]

I'm glad you found them useful. I will do my best to help with any other questions you have.

[Safety Dance]

Great thanks and sorry if I ask too many questions I have just not been able to find assistance with any of the orgnisations that seem to promise it.

 

Right, I will try and be succinct:

 

1) My landlord is not claiming there is a reason to not refund the deposit he has simply disappeared and gone completely quiet. he has promised our deposit back but not paid it and now is not responding. Can I claim my original deposit plus any compensation via this message or am I simply claiming compensation for not using the scheme? E.g. Can I say something like "I crave £x which is the original deposit plus compensation and and fee"? Or do I have to claim my deposit back separately? Not that it would matter as compensation would more than cover what I am owed (I am not greedy, I only really want back what I am owed but am hoping asking for the maximum will make him more inclined to settle) I just do not want to claim something I am not entitled to and harm my application.

 

2) Is the £x stated a figure that includes the "expenses of this claim" or are they added later on top of this amount? Just so that know how much to ask for.

 

3) I have emails proving none of the schemes were used and from the landlord to illustrate a few points. Shall I include these with the application?

 

4) I am just a little confused by the "pleas-in-laws" and what should go here?

 

Also, and I know I am asking a lot of you here, would I be able to forward to you my final form for you to look over? Not only do I want to win this case out of principle but I would like to have a good application so that I can make it available to as many people as possible in my situation.

 

Sorry and thank you again.

 

Regards

 

SD

[LaurynM]

Hello

 

1. Any unpaid deposit is a separate matter. I believe this would be a small claims court action. At present, part of myu initial deposit is outstanding, whether or not I go after it is another matter. Your summary application is purely for the non protection of your deposit. In my case, the amount unpaid to me was used in arriving at the amount I was awarded, but technically the two matters are separate.

 

2. Your expenses are on top of the amount you crave. Make sure that this is clear in your application. You will (I assume) be asking for £x being three times the amount of your deposit plus expenses in bringing the claim.

 

3. I didn't include these in my application but I sent a small pack to the court in advance of the date and included some back up for my application.

 

4. Please see the copies of my application I provided in an earlier post for guidance. If you give me some time, I will try and tailor them to you but I'm working late today and won't have a lot of time.

 

Anything else please ask.

 

Thanks,

Lauryn.

[Safety Dance]

Great, thanks again and don;t worry about speed of reply, i just appreciate the help and time you are putting in!!

 

1/2 - Yes I am going to crave the full three times the deposit. If I am successful I probably will not chase the original deposit as it would more than cover the amount we are currently out of pocket. OK, I will make sure it is mentioned (that section is pretty much the same as yours apart from the £X amount).

 

3 - I will put together a pack of emails and back up evidence and include it as an attachment on the email (I will be emailing the summary as I am not in the city I need to make the claim at present).

 

4 - I have looked but the dates confuse me a little? Sorry if I am being stupid. I think maybe get my summary to a point where I am happy with it then forward it to you if that is OK? That will probably be tomorrow but do not worry about replying straight away.

 

A couple of other things sorry :

 

1 - The schemes have no record and he forwarded nothing to us regarding it but is there any way I could have missed it and it is in the scheme and I will be out of pocket?

 

2 - Apart from the initial fee and a fee for the sheriffs to issue the warrant are there any other hidden costs before or afterwards?

 

Thanks

 

SD

[LaurynM]

Even if the landlord HAS protected your deposit, there are time limits in which you must be informed of a number of facts about your deposit, therefore if you haven't received this, when you are within your rights to pursue.

 

The diet for my expenses is actually this Friday and is for the fee to lodge the application, the fee for the sheriffs officers, then the amount for the expenses to be audited and taxed, and for this to be intimated on the defender, and that's it off the top of my head. The fees for the sheriffs officers to pursue the amount owed to you if successful is simply added on to the total and does not need audited.

[LaurynM]

Also I am more than happy to look at any documents etc however I am not legally qualified. I have a degree in law but I am an accountant by practice therefore please use anything I note as a guideline only - I don't want to be held responsible for any actions you may take which I hope you understand.

[Safety Dance]

Hello again

 

Thanks, really interesting topic. No no, I am just seeking advice and have an appointment with a free legal advisor next week so want to in a position to just show them what I have and for them to say "yeah that's looks great" so that I can kick on. I need to submit it next week really as want it underway as soon as possible. Your help has been invaluable so far, thanks so much.

 

SD

[Safety Dance]

Hello there

 

Thank you so much for all of your help so far. Here is a copy of the form I wanted to submit and was hoping you may be able to look over it and assist me in getting it to a point that is suitable for submission. I have a meeting with a free legal advisor next Thursday and I hope to submit this application immediately after that meeting and so would like to be at point where it is pretty much ready to go when I get to the advisor.

 

1 - I am a little confused re. point 6 as to what the dates should be?

2 - I am not sure what to put in the pleas-in-law again down to the dates.

3 - Also, my lease was a Short Assured Tenancy Agreement and under the deposit section it simply says that the agent will hold the deposit and does not mention the deposit schemes. As we have signed this does it invalidate the fact a scheme was not used or is it law even though it does not state it in the lease?

4 - Also, I am not sure what is meant by (design and state any special capacity in which the pursuer is suing)?

 

Form 1

Form of initial writ

Rule 2.4(1)

SUMMARY APPLICATION UNDER Regulation 10 Of the Tenancy deposit Schemes (Scotland) Regulations 2011

 

INITIAL WRIT

 

SHERIFFDOM OF *********

 

AT ******** Sheriff Court

 

[A.B.] (design and state any special capacity in which the pursuer is suing) Pursuer

 

against

 

[C.D.] (design and state any special capacity in which the defender is being sued) Defender

 

The Pursuer craves the court to grant financial compensation £*** for non-compliance with the above regulations, equivalent to three times the amount of the tenancy deposit paid, and, in addition to this, any expenses of bringing this claim.

 

CONDESCENDENCE

 

1. The pursuer commenced a lease on 30th July 2013 for rental property ***************** and paid a tenancy deposit of £*** on this date.

2. As prescribed under the Tenancy Deposit Scheme Regulations 2011, the defender was required to lodge this deposit with an approved tenancy Deposit Scheme in Scotland and provide the prescribed information in accordance with her duties under the Regulations.

3. The defender failed to protect this deposit at any point during the tenancy with an approved Tenancy Deposit Scheme in Scotland, and failed to provide the prescribed information in accordance with her duties under the Tenancy Deposit Scheme Regulations 2011.

4. Letting Protection Service Scotland, SafeDeposits Scotland and My Deposits Scotland have each confirmed (emails attached) that no such deposit for the rental property was filed with them.

5. Under the regulations, the information to be provided is as follows:

 

• The amount of the deposit and the date this was received.
  
• The address to which the deposit relates.
  
• Landlord Registration Details.
  
• The date the deposit was paid into the scheme.
  
• The name and contact details of the tenancy deposit scheme used.
  
• The condition in which part or all of the deposit may be retained at the end of the tenancy (with reference to the tenancy agreement).
  

6. This information should have been provided within 30 days of the date the landlord was due to comply with the regulations being………in this case.

7. The above information was not received at any point during the tenancy.

8. The defender therefore failed to comply with the above regulations.

9. The defender has unfairly withheld the deposit of £*** which will be pursued separately

10. The pursuer is seeking financial compensation payable of three times the amount of the tenancy deposit, totalling £****.

11. Th address.....

PLEAS-IN-LAW

 

1. Under Regulation 4 of The Tenancy Deposit Schemes (Scotland) regulations 2011, the landlords who receive deposits on or after 2nd July 2012

 

Signed

 

[A.B.], Pursuer

 

or [X.Y.], solicitor for the Pursuer

 

(state designation and business address)

 

 

 

Thanks again

 

SD

[LaurynM]

For points 1 and 2, use this link to identify the dates relevant to your claim:

 

http://www.scotland.gov.uk/Topics/Built-Environment/Housing/privaterent/landlords/tenancy-deposit-schemes

 

For point 3 - no it doesn't matter, it's prescribed by law and the responsibility is ultimately down to the landlord to comply with the regulations. If you are struggling to PM me then feel free to note your email address and I will email you.

 

Thanks

Lauryn

[LaurynM]

Also, regarding the special capacity part - unless there's info you haven't provided above then disregard this.

[LaurynM]

An update on my case:

 

I first went to court on 13 December 2013, and again on 18 January 2014 where it was continued

as the defender said on 13 December that he wanted to make a defence

(despite not doing so in the allotted time frame ahead of the hearing).

 

On 18 January 2014 the defender did not show in court and I was successful, with decree granted in my favour.

 

I returned to court today for my account of expenses to be audited and was again successful, with my expenses deemed reasonable.

 

The defender did not show up but did phone the auditor earlier in the week stating he was going to send a letter objecting.

 

All in all, the defender didn't take anything seriously

- from my tenancy itself, my tenancy deposit, turning up to court when required to do so,

and anything else that he should have done.

 

Now I am waiting for the decree for my expenses which should arrive within the next fortnight,

and will appoint sheriff officers to recover the sum due on my behalf,

which is now in excess of £1,000.

 

Thanks to all for reading and I hope many others are successful in their actions.

[Safety Dance]

Hello there

 

Great, thanks again for the continued advice and interesting to read the latest from your case. I am working on my application over the next few days so will message you with updates/questions.

 

Thanks

 

SD