Failure to protect the tenancy deposit and % of deposit has been returned as a check

[AlexanderB]

Dear All,

 

Could you please advise on what would be the most optimal course of action in the situation as per below in order to claim against the non-compliant landlord with Housing Act 2004?

 

The situation in few bullet points:

1. We have signed a 12 months fixed term AST with a private landlord starting from July 30th 2011 and then renewed with a new AST contract on July 30th 2012 with a new increased rent and the second fixed term has ended on July 29th 2013. The deposit of £1,494 has been paid in July 2011 to a letting agency (property was let as LET ONLY) and the letting agency has transferred it to the private landlord.

 

2. Shortly before the end of the second fixed term (ended on July 29th 2013) we have run into a disagreement with the landlord over his long overdue flooring repairs which he hasn't completed before the agreed date July 5th 2013 (we have vacated the property for two weeks to allow him to complete the flooring repairs affected by a damp occurred long ago and before our initial tenancy started back in 2011) after which we were due to return back from holidays with two small children (4 years old and 6 months old). Upon our return the floors were missing and their condition has been totally unsafe for little kids which has later been confirmed by the Council Environmental Officer who visitted the property and confirmed a tripping and feet laciteration hazard in an official HHSRS report.

 

3. After I have threatened a legal action to complete the floor repairs - the landlord become somewhat 'unstable' and 'emotional' (exact quotes of his series of messages from him were: 'don't tempt me you stupid little dick' and 'I will come over, punch you in the face, cut your head off and will **** into the hole' - all these have been reported to local police shortly after') and he has served Section 21 to evict us as soon as possible despite the the fact that the AST fixed terms is to end within less than one month. Since he threatened that 'he holds my deposit and will not return until this matter is resolved' I have started to look around to understand what the story about the deposits and finally found out that the deposit should have been protected with one of the Tenancy Deposit Schemes and that the certain prescribed information has to be served to me within 30 days after the deposit has been paid or 30 days after April 2012 when when the new Housing Act 2004 amended legislation (I think it's called The Localism Act 2011) has come into the force.

 

4. Shortly after discovering this fact I have searched through the various schemes trying to find my deposit and also requested the confirmation in writing from each of the schemes. All schemes have come back to me by email and confirmed that this property has not been registered with them and I was also not able to find it through my own searches on their web sites.

 

5. While I was still a tenant (on July 11th 2013) I have sent two postal (recorded) letters to the landlord requesting to provide the status of my deposit protection and to protect the deposit if it has not been protected yet. These have been ignored / unanswered.

 

6. At this moment the tenancy fixed term has ended (on July 29th 2013) and we professionally cleaned the property throughout (have an invoice) and have moved out from the property

 

7. Since there was no inventory check-in, the landlord has asked me to simply had over the keys to a letting agent and said that the deposit with all the deductions will be returned after 'inspection'. Shorting after end of tenancy I have sent the landlord another recorded letter (template has been taken from shelter) to request of the return of the deposit within 14 days. I had to track his new home address (or rather an old home address as he seems like moved back to his original home which he used when purchased the lease on the property he rented to us) through the land registry in order to get this letter signed for by him as the initial letter send to his mailing address specified in the AST contract has returned with 'Gone Away' sticker.

 

 

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8. Now as I am writing this I am waiting for for a postal letter from the landlord with a cheque for the remaining sum of the deposit after deductions which are unknown as of yet (hopefully the breakdown of costs of repairs will be in that letter) - although I fail to understand what damages he have come up with as a 'revenge'.

 

The question is as per the first paragraph of this post and in particular I would like to understand what is the optimal step forward here:

 

1. Accept the cheque and all the deductions (whatever they are) and then take him to county court for 'Failure to comply with Housing Act 2004': i.e. to claim just for 3x Deposit amount which would be £1,494 * 3 = £4,482 and is below £5,000 limit for small claims procedure

 

or

 

2. Don't accept the cheque and take him to the county court for deposit return and for 'Failure to comply with Housing Act 2004' and therefore claim for deposit return and 3xDeposit: i.e. to claim for £1,494 * 4 = £5,976 and which is above the limit for small claims procedures which might mean that I would be risking to end up paying his solicitor's costs if I lose this case (for whatever reason)

 

And in addition to this - are these still valid concerns in terms of potential appeal against my claim?

 

- Because of the fact that the tenancy has started before April 2012 - can I still claim after my tenancy has ended - i.e. I am no longer a tenant and in Option 1 above the deposit has been returned back to me? I.e. Can the landlord appeal here to a precedent appeal court ruling (can't recall the particulars of the ruling) that 'non-tenant that have deposit returned cannot claim for return of the deposit again' and that claiming just for 3xDeposit compensation isn't allowed?

 

- Does the new legislation (The Localism Act 2011) that came into force on April 2012 actually apply in my case? i.e. my first tenancy in this property has started before April 2012 and before the new legislation and contract got renewed in July 2012. If I am not mistaken the new legislation states that 'all tenancies commenced or in effect on or after April 2012 should have deposit registered within 30 days after April 2012'.

 

I would really appreciate your thoughts and opinions on this. All I am trying to make sure is that whichever option I go with from the above - I will not end up going beyond 'small claims procedure limit' and that the landlord has no option whatsoever to appeal against the claim/court ruling based on past precedents 'that ex-tenants can't claim if deposit is already returned'.

 

Many thanks,

Alex

[Lea_HTH]

The Localism Act does apply to the tenancy that recently ended.

 

Your problem here is not whether the law applies, but whether a judge will find in your favour - there aren't any precedents as yet and it is still up the individual judge whether he/she will award a penalty figure for non-compliance. Yes, it all seems straightforward, but it's not. For a start since it's untested, the likelihood is that you will need a solicitor and or barrister once in court. It is fast track, not small claims, so costs to start the case are more expensive. If you win, the LL is likely to challenge it, and you could find yourself tied up in litigation for many months.

 

You may be better off writing to the LL and stating that he has failed to comply with the law, and that unless he returns your deposit in full, without any deductions, you will consider legal action to claim up to three times the deposit as a penalty. If the LL has any sense, he'll cut his losses, return the deposit and you won't be any worse off.

[AlexanderB]

The Localism Act does apply to the tenancy that recently ended.

Could you please advise why it does not apply as I thought that the tenancy has been in effect on and after April 2012 and also has been renewed in July 2012?

 

It is fast track, not small claims, so costs to start the case are more expensive.

So far most of the material on the web that I have studied including shelter have suggested that claims under £5,000 are treated as 'small claims'. Why would this be a fast track?

 

thanks

[Lea_HTH]

Firstly, I suggest you re-read what you quoted in the first paragraph - it doesn't say what you think it says.

 

Secondly, small claims limit is £10k, so seems Shelter's website is out of date. Thirdly, your claim is for a penalty, not a 'small claim', so it's not heard in the small claims track.

Edited August 13, 2013 by Lea_HTH
Re-numbered...

[AlexanderB]

Firstly, I suggest you re-read what you quoted in the first paragraph - it doesn't say what you think it says.

 

I might have lost among the meanings of what was quoted to be honest... my apologies.

 

If I read the Localism Act 2011 again - one of the amendments do allow the court proceedings to be initiated if the tenancy has recently ended and in the penalty section the word 'also' has been removed in relation to no longer 'linking together' the court order to return of the deposit and the court order to pay the penalty which would mean that after the return of the deposit there is still a possibility for a claim for the penalty separately.

 

I am just trying to understand why you have said that the Localism Act 2011 does not apply for the tenancy that has recently ended if to the contrary the Localism Act 2011 actual states that the court proceedings can be brought forward if the tenancy has recently ended.

 

 

Here is my attempt to compile the amended Housing Act 2004 s214 according to the changes to this legislation in the Localism Act 2011 that came into force since April 2012:

 

214 Proceedings relating to tenancy deposits

(1)Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—

(a)that section 213(3) or (6)(a) has not been complied with in relation to the deposit, or

(b)that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

(1A)Subsection (1) also applies in a case where the tenancy has ended, and in such a case the reference in subsection (1) to the tenant is to a person who was a tenant under the tenancy.

 

(2)Subsections (3) and (4) apply in the case of an application under subsection (1) if the tenancy has not ended and the court—

(a) is satisfied that section 213(3) or (6) has not been complied with in relation to the deposit, or

(b)is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(2A)Subsections (3A) and (4) apply in the case of an application under subsection (1) if the tenancy has ended (whether before or after the making of the application) and the court—

(a)is satisfied that section 213(3) or (6) has not been complied with in relation to the deposit, or

(b)is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(3)The court must, as it thinks fit, either—

(a)order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b)order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(3A)The court may order the person who appears to the court to be holding the deposit to repay all or part of it to the applicant within the period of 14 days beginning with the date of the making of the order.

(4)The court must ([AlexanderB]the word 'also' has gone, so there is no link between return of the deposit and a penalty) order the landlord to pay to the applicant a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

(5)Where any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), the property in question is recoverable from the person holding it by the person by whom it was given as a deposit.

(6)In subsection (5) “deposit” has the meaning given by section 213(8).

 

Understood your point regarding 'small claim' vs 'fast track', thank you!

[Lea_HTH]

I am just trying to understand why you have said that the Localism Act 2011 does not apply for the tenancy that has recently ended

 

Try reading what I actually wrote instead of inserting additional words, then you'll be less confused.

[AlexanderB]

Try reading what I actually wrote instead of inserting additional words, then you'll be less confused.

 

My apologies again - I have somehow misread it as I was too afraid to see 'does not apply'

 

 

 

Many thanks for your help!!

Edited August 13, 2013 by AlexanderB

[Lea_HTH]

My apologies again - I have somehow misread it as I was too afraid to see 'does not apply'

 

 

 

Many thanks for your help!!

 

I got a further message saying that you still hadn't got it, before you amended it to the above.

 

Christ.

[AlexanderB]

Christ.

 

I do admit i might have been a little silly not reading what has been written sometimes. Apologies

 

Just as a quick update on the issue - I am appointing a solicitor for this as it seems to me the fast track or multi track assignment for these types of claims would mean that I will have much more chances to fail just for not following process correctly.

[raydetinu]

good luck with that; keep us informed of how it is going.

[ericsbrother]

Have you taken the matter to your local council housing dept? many like to keep an eye on rogue landlords.

[AlexanderB]

Have you taken the matter to your local council housing dept? many like to keep an eye on rogue landlords.

 

Yes, we had a visit from Royal Borough Environmental Health Officer who visitted the property while in tenancy and he confirmed a tripping and feet laceration hazard in the official HHSRS report (which has been sent to the landlord and a copy to us) which also states that his indemnity insurance could be affected if these hazards are not removed. He has also requested the copies of gas safety and Deposit protection certificates. I can post here a scanned copy of the report (without names and addresses) of it if that would be beneficial.

 

I am not sure how this report would have any impact on the claim in question - however it could help to indicate one of the reasons why we are pursuing it (i.e. deposit return, humiliation, threats, failure to complete floor repairs and as result - one month living with unsafe floors having paid rent in full).

[raydetinu]

All helps to give the judge a view on the attitude of the LL.