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Curtainsplitter

Couldn't live in property but Landlord taking me to court 2 years later help needed!

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I will have to search home for the guarantors form and any other paperwork I have so far, but anymore advice would be dearly appreciated. I know i probably haven't handled the matter in the best way i could and perhaps have been a bit verbose but I don't feel I notified them at such short notice and I know they did not advertise the property.

Someone has recommended me to do some research into how fast other properties of similar size go in the area and use this as evidence the property could easily have been replaced with as evidence, am thhinking about doing this?

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Tenancy docs [ATTACH=CONFIG]57748[/ATTACH][ATTACH=CONFIG]57749[/ATTACH][ATTACH=CONFIG]57750[/ATTACH]

 

I can't see anything in this that could constitute prescribed information for how your deposit was protected - it only says what scheme they use.

I think you should make a counterclaim with your defence, for not being issued with the prescribed information within 30 days. You should also have been issued with proof that the deposit was actually protected - just saying it was is not enough.

Not only can you sue your landlady for up to 3 times the amount of the deposit, but it also shows that she/the agent did not handle the tenancy correctly - definitely an advantage for your defence.

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Were you given a deposit i.d?

I'm not sure what sort of records the DPS keep, but you could ring their helpline and ask whether your deposit was ever protected - you simply need to give your surname and the address of the property in the tenancy.

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Were you given a deposit i.d?

I'm not sure what sort of records the DPS keep, but you could ring their helpline and ask whether your deposit was ever protected - you simply need to give your surname and the address of the property in the tenancy.

 

Oh okay. Yes I didn't know that! Well as far as am aware that's all the docs I have as the estate agent kept the guarantor form but as my mum was guarantor and all of this has only been sent to her address she files paperwork so am just checking when she returns from holiday tommorrow that we don't have anything else. I've found a 6 month period of contact between myself and the estate agent on hotmail which has been great. I'll let you know if I find anything about the deposit scheme, I've actually selected defend whole claim so no idea what I would do to make a counterclaim but I'll check again if they did register it.

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Have a look on the dps site.

As tenant, you should have been issued with prescribed information and information that told you when the deposit was actually protected and a deposit i.d number, which would allow you to check the protection status on the dps site. At the end of the tenancy, you would then be able to claim the deposit back, unless the landlord/agent raised a dispute.

Ordinarily, this info would go to the tenant, not the guarantor.

A simple phone call to the DPS should tell you whether the deposit was ever protected - I suspect it wasn't, since you have never had the deposit returned, nor had anything to say it was being disputed.

If this is so, a letter from yourself to the agent/landlady, stating you are aware they didn't protect your deposit and intend to claim for the full amount of 3 times the deposit may be enough to make them think twice about persuing the claim.

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Have a look on the dps site.

As tenant, you should have been issued with prescribed information and information that told you when the deposit was actually protected and a deposit i.d number, which would allow you to check the protection status on the dps site. At the end of the tenancy, you would then be able to claim the deposit back, unless the landlord/agent raised a dispute.

Ordinarily, this info would go to the tenant, not the guarantor.

A simple phone call to the DPS should tell you whether the deposit was ever protected - I suspect it wasn't, since you have never had the deposit returned, nor had anything to say it was being disputed.

If this is so, a letter from yourself to the agent/landlady, stating you are aware they didn't protect your deposit and intend to claim for the full amount of 3 times the deposit may be enough to make them think twice about persuing the claim.

 

I see. Well as far as i recall I don't have any DPS numbers, but i could be wrong! As i said going to speak with my guarantor tommorrow as if we did ever get one she'll have it. I will also ring dps tommorrow and see if they can find any record of it. I never remember recieving anyway to get it back and never did get a refund thats for sure! I didn't get anything either about disputing it.

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Thanks for uploading the documents - that is really helpful.

 

The claim appears to have come from the landlord and is not professionally drafted. It appears that the landlord is running this claim herself. It is interesting that the claim clearly states you did not inform the letting agents until a few weeks before the move in date - this contradicts your statement that you informed the letting agents in good time. It sounds like the letting agents may be at fault here and that they may not have informed the landlord in a timely manner. I hope that you kept a copy of the email or the letter which proves this.

 

I do think this one could go either way, in light of the case I mentioned earlier in which the court said that there is no obligation on a landlord to 'mitigate loss' or to try and re-let property to someone else if the tenant fails to pay rent, although I appreciate this case involved someone abandoning the tenancy mid-way through.

 

Just after filing a Defence, perhaps it would be a good idea to send a copy of the email in which you informed the letting agents that the course was cancelled, proving that you gave plenty of notice, and perhaps make a settlement offer?

 

I would defend along the following lines:

 

1. It is admitted that the Defendant signed a tenancy agreement in relation to the property at xxx.

2. The sole purpose of the tenancy agreement was to enable the Defendant to attend xxx university to study xxx, which was known to both parties.

3. Due to circumstances outside the control of the Defendant, the relevant course was unexpectedly cancelled by the university and the Defendant was forced to transfer to another university. The fundamental purpose of the contract was frustrated. In line with the principles set out in Krell v Henry, the Defendant was released from any further obligation in respect of the tenancy.

4. It is denied that the Claimant's letting agents were not informed until a few weeks before the tenancy was due to start. In fact, the letting agents were informed on xxx by letter and on xxx by email, copies of which are available. This left the Claimant's letting agents with more than enough time to re-let the property.

5. Upon the Claimant's letting agents receiving the notice on xxx, the Claimant was under an obligation to mitigate her loss by re-advertising the property in order to let it to another tenant. The Claimant is put to proof as to what steps were taken to mitigate her loss between xxx and the end of the tenancy on xxx 2014.

6. As far as the Defendant is aware the Claimant did not re-advertise the property in a timely manner and accordingly is not entitled to claim for losses arising as a result of a failure to let the property to another tenant.

7. Further, if contrary to this Defence the Defendant is held liable to the Claimant, the Defendant is entitled to set off the sum of £300 which the Defendant paid to the Claimant as a deposit shortly after signing the tenancy agreement.


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Thanks for uploading the documents - that is really helpful.

 

The claim appears to have come from the landlord and is not professionally drafted. It appears that the landlord is running this claim herself. It is interesting that the claim clearly states you did not inform the letting agents until a few weeks before the move in date - this contradicts your statement that you informed the letting agents in good time. It sounds like the letting agents may be at fault here and that they may not have informed the landlord in a timely manner. I hope that you kept a copy of the email or the letter which proves this.

 

I do think this one could go either way, in light of the case I mentioned earlier in which the court said that there is no obligation on a landlord to 'mitigate loss' or to try and re-let property to someone else if the tenant fails to pay rent, although I appreciate this case involved someone abandoning the tenancy mid-way through.

 

Just after filing a Defence, perhaps it would be a good idea to send a copy of the email in which you informed the letting agents that the course was cancelled, proving that you gave plenty of notice, and perhaps make a settlement offer?

 

I would defend along the following lines:

 

1. It is admitted that the Defendant signed a tenancy agreement in relation to the property at xxx.

2. The sole purpose of the tenancy agreement was to enable the Defendant to attend xxx university to study xxx, which was known to both parties.

3. Due to circumstances outside the control of the Defendant, the relevant course was unexpectedly cancelled by the university and the Defendant was forced to transfer to another university. The fundamental purpose of the contract was frustrated. In line with the principles set out in Krell v Henry, the Defendant was released from any further obligation in respect of the tenancy.

4. It is denied that the Claimant's letting agents were not informed until a few weeks before the tenancy was due to start. In fact, the letting agents were informed on xxx by letter and on xxx by email, copies of which are available. This left the Claimant's letting agents with more than enough time to re-let the property.

5. Upon the Claimant's letting agents receiving the notice on xxx, the Claimant was under an obligation to mitigate her loss by re-advertising the property in order to let it to another tenant. The Claimant is put to proof as to what steps were taken to mitigate her loss between xxx and the end of the tenancy on xxx 2014.

6. As far as the Defendant is aware the Claimant did not re-advertise the property in a timely manner and accordingly is not entitled to claim for losses arising as a result of a failure to let the property to another tenant.

7. Further, if contrary to this Defence the Defendant is held liable to the Claimant, the Defendant is entitled to set off the sum of £300 which the Defendant paid to the Claimant as a deposit shortly after signing the tenancy agreement.

 

Okay fair enough :) steam. And yes I do have proof of the emails sent and copies of the letters posted. Steam I also noticed that the landlord is asking for 2 years interest+ court interest? Isn't this a bit overzealous?

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2 years interest + court interest? I would be adding in that thats a bit over zealous of the landlord and you'll only pay interest for the rental period.

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Okay fair enough :) steam. And yes I do have proof of the emails sent and copies of the letters posted. Steam I also noticed that the landlord is asking for 2 years interest+ court interest? Isn't this a bit overzealous?

If the landlord is successful, interest would be due at the rate of 8% per annum from the date on which the payment is due until the date of payment. So there would be slightly more interest due on earlier rental payments than later ones.


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If the landlord is successful, interest would be due at the rate of 8% per annum from the date on which the payment is due until the date of payment. So there would be slightly more interest due on earlier rental payments than later ones.

 

So it is justified to charge that much interest? Okay well I plan on filing the defence sometime this week. Only issue i've had is that I didn't write down my GOV gateway number as did it on my phone and to reset it they want MCOL ID so no idea what either are..i assume i can just post a defence back 1st class recorded if online isn't an option right?

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So it is justified to charge that much interest? Okay well I plan on filing the defence sometime this week. Only issue i've had is that I didn't write down my GOV gateway number as did it on my phone and to reset it they want MCOL ID so no idea what either are..i assume i can just post a defence back 1st class recorded if online isn't an option right?

Yes, 8% is the standard rate of interest. The only exception would be if a different rate of interest is specified in the tenancy agreement.

 

I would give MCOL a call to make sure you are doing the right thing. You would normally be expected to send the Defence to both the other side and the court.


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Also in regards to the DPS deposit I have been doing some searching with my guarantor and apart from the mention of this in the tenancy there is no Deposit ID.

i've done some investigatiion and apparently even without the deposit ID you can search using the address/tenacy start date and surname. No matter if i put the incorrect surname and the right surname in there database states it finds no record of the deposit- A deposit matching your search cannot be found or is not protected. Please contact your Agent / Landlord to confirm the status of your Deposit protection.

An interesting call so I'll be ringing DPS and recording the conversation to see if the deposit was reg..if it wasn't does that mean I will lose the case because I trusted a high street estate agent and in essence was negligent..I've also sent a email to the DPS.

Because I did the acknowledgement of service last week 25th May do i only have till Monday 4pm to file?

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Yes, 8% is the standard rate of interest. The only exception would be if a different rate of interest is specified in the tenancy agreement.

 

I would give MCOL a call to make sure you are doing the right thing. You would normally be expected to send the Defence to both the other side and the court.

 

Yes am going to send the CPR you sent me+defennce copies in the post this week (monday/tuesday.)

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Your Name Your Address

IN THE XXXXXXXXX county court

 

CLAIM NO: Date:

 

 

 

BETWEEN: XXXXXXXXXX

Claimant and

XXXXXXXXXXX

 

Defendant

 

 

 

PART 18 REQUEST FOR FURTHER INFORMATION

 

To: XXXXXXXXXX (claimant)

 

 

 

Please answer the following questions:

 

 

1: Is the property currently vacant?

2: Has the property been used by the Landlord or let to anyone else during the tenancy in question?

3: Please provide copies of both tenancy documents and guarantor forms alongside deposit protection scheme proof that you are stating you hold

 

 

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

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Steam what do you think of the above for questions for CPR?

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Because I did the acknowledgement of service last week do i only have till Monday 4pm to file?
Filing the acknowledgement of service gives you an additional 14 days (so total 28 days, from the date of service of the claim form and particulars of claim).

 

 

Steam what do you think of the above for questions for CPR?

Looks fine, but personally I would remove the references to the guarantor. As the claim has only been made against you personally and not against the guarantor, I don't think it is relevant.


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Filing the acknowledgement of service gives you an additional 14 days (so total 28 days, from the date of service of the claim form and particulars of claim).

 

 

 

Looks fine, but personally I would remove the references to the guarantor. As the claim has only been made against you personally and not against the guarantor, I don't think it is relevant.

 

Okay great. In regards to the DPS part of this, I tried to call them today but seems they're not open on weekends so I have emailed them. If they confirm the DPS deposit wasn't protected..what do I need to add to the defence? I plan on calling them too on Monday. And as I filed on the 25th of May when does that give me from the AOS (25th may) ? Let me know thanks

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Okay great. In regards to the DPS part of this, I tried to call them today but seems they're not open on weekends so I have emailed them. If they confirm the DPS deposit wasn't protected..what do I need to add to the defence? I plan on calling them too on Monday. And as I filed on the 25th of May when does that give me from the AOS (25th may) ? Let me know thanks

The time is calculated from service of the claim form/particulars of claim, not from service of the AOS. The AOS extends the original deadline. See CitizenB's post on the first page of this thread for your timeline.

 

 

If it turns out the deposit was not protected, then I guess you would add to your defence counterclaim for the deposit back plus a penalty of 1-3x the deposit.


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Okay great. In regards to the DPS part of this, I tried to call them today but seems they're not open on weekends so I have emailed them. If they confirm the DPS deposit wasn't protected..what do I need to add to the defence? I plan on calling them too on Monday. And as I filed on the 25th of May when does that give me from the AOS (25th may) ? Let me know thanks

 

Curtainsplitter I think your jumping the gun a bit. I highly doubt an estate agent would not have regestered the DPS deposit and before you make any mention of this I would get in writing and a recorded telephone call as your prior stated, definetely that the deposit wasn't regestered. A landlord if you don't pay your bills can take the deposit and you didn't pay the rent here as you gave notice so they had all right to take the rent is my belief, regardless of 'frustration of contract'. However they have to have notified you why they were keeping the deposit within 10 days of doing so.

However if they didn't do it which would be bizaerre i would counter sue for upto 3-4k as thats what you'd be entitled to. Your deposit would be given back x3 amounts which is £900 and so you would also be entitled to compensation next to this. I don't think however you could counterclaim now you' ve filed your AOS which you stated you put 'defend all claim' but maybe more experienced members can help

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The time is calculated from service of the claim form/particulars of claim, not from service of the AOS. The AOS extends the original deadline. See CitizenB's post on the first page of this thread for your timeline.

 

 

If it turns out the deposit was not protected, then I guess you would add to your defence counterclaim for the deposit back plus a penalty of 1-3x the deposit.

 

Curtainsplitter- Citizen states 20th June as your date but I work it out as the 16th June but i maybe wrong, but I would ring MCOL and check to be safe. Also you must send a defence copy to the court and the defendant. Do it recorded delivery so they can't claim loss and keep all copies of correspondance. I would make them a settlement that they can keep the £300 deposit and thats it as thats your base advertising costs. It sounds like from reading other posts the estate agent messed up here but a high part of your claim will rely on the dps findings you get

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Thanks brownguy! I'm just waiting to speak to MCOL now to confirm the date. I have found some deposit forms and rang the DPS, the DPS state that the £300 deposit was disputed as the estate agent put a claim in for rent arrears and won the £300.00. Should this not be deducted from the landlords claims/costs as she had made no mention of this?

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Will scan in the gurantor form, have found it too. Can anyone advice further what i should add/put in the defence then? Thanks

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MCOL says I have until 21st June to reply? Would that work out right I suppose its as there was one bank holiday.

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This is the defence i have written..i took what you said steam on board but added my own views..perhaps am wrong and you seem more experienced on here so i'd value your opinions..My mum said I may have been a bit verbose so any help would be appreciated.

 

Statement of Defence

 

1. Firstly it is admitted that the defendant signed a tenancy agreement in relation to the property at Flat 13 South Mews, Buxton, Derbyshire, SK17 6GE in approximately December 2012 as outlined by the claimant.

The sole purpose of the tenancy agreement was to enable the Defendant to attend the University of Derby’s sub campus in Buxton to study a BA Honours in Travel and Tourism Management, which was known to both parties before signing the contract, as this was a student property and the estate agent representing the claimant specializes in student properties for university students in this area.

 

2. The defendant paid a deposit of £300.00 through the DPS Scheme and was informed on paying the deposit that this would ‘secure’ his student property with a friend- XXXX- the co-tenant and the relevant tenancy/guarantor form would be posted to the defendant.

 

3. After the defendant had paid the above deposit he received no tenancy agreement for a month and had to chase the claimant’s agent up for the tenancy agreement. The defendant will provide evidence of this in court. When the defendant received the tenancy in the post from the claimant’s agents it was the incorrect tenancy as it was for ‘residential short term’ properties and not the stated/agreed ‘student’ property with student tenancy properties advertised originally by the claimants agent and thus contained discrepancies within the contract because of this. The defendant therefore contacted the agent of the claimant at the earliest date possible and informed them of this. The agent of the claimant stated that there had been a filing ‘error’ and a new tenancy and guarantor form would be issued as the prior tenancies would be void due to them referring to the incorrect format of property type and bills/pricing. The defendant notes that this was no fault of his own but the claimant’s agent’s fault and will provide evidence of this to the strictest of element. When the correct tenancy was sent out to the defendant by the claimant’s agent after notification by the defendant it was signed by the defendant and returned, but no guarantor form was signed for the student property contract was signed and returned. This makes any prior tenancy agreement for a ‘residential’ property legally void as the property is not and was not a residential rental and was not in the tenancy in question, the property is a student property and any prior guarantor forms correlating to this are thus void as agreed by the claimants agents in prior discussion. The defendant can provide strict evidence of this matter and the claimant will be put to strict proof that the guarantor form in question relates to the correct tenancy agreement.

 

4. Due to circumstances outside the control of the defendant, the relevant course of study for the defendant, was unexpectedly cancelled by the relevant university due to a lack of sign up and lack of accommodation at the university being available and the defendant was forced to transfer to another University who did the same course, the nearest being in Huddersfield, West Yorkshire. The defendant provided the agent of the claimant evidence of this matter and that it was no fault of his own and the fundamental purpose of the contract was legally frustrated because of this. The defendant at his immediate awareness notified the agents of the claimant in the frustration of contract and should not be held liable. In line with the principles set out in Krell v Henry, the Defendant was released from any further obligation in respect of the tenancy and in this case the defendant should also have been released out of the tenancy and this will be argued to the strictest of statue.

 

5. It is strictly denied that the Claimant's letting agents were not informed until a ‘few’ weeks before the tenancy was due to start. In fact, the letting agents were informed of the frustration of contract on July 1st 2013 (2 months before the move in date and official contract start date) by letter delivered by hand and the defendant has witnesses to this who are willing to testify in court against the claimant, including the co-tenant – XXX. Further to this the defendant made numerous phone calls to the claimant’s agent to chase the matter up which the defendant has evidence of in July 2013 to the agent of the claimant. The agent of the claimant was negligent in their duty and only responded in August 2013 due to there ‘leave’ and ‘schedule’ and the defendant was told on numerous occasions that only this ‘property’s listed agent’ could deal with any enquiries regarding the property meant the defendant notified the claimant and their agent as soon as possible and it can only be stated that the claimant’s agent notified the claimant at a later date then the original notice issued by the defendant and the defendant relays this is no fault of his own and is the fault of the claimants agent. Copies of the frustration of contract to notify the claimant’s agents will be provided and written correspondence from the claimant’s agent. This left the Claimant's letting agents and the claimant with more than enough time to re-let the property and this will be argued to the strictest of proof using evidence provided by the defendant.

 

6. Upon the Claimant's letting agents receiving the notice on July 1st 2013, the claimant was under an obligation to mitigate her loss by re-advertising the property in order to let it to another tenant. The Claimant is put to the strictest of proof and evidence as to what steps were taken to mitigate her loss by herself and to re-advertise the property’s vacancy by herself and her agents between July 2013 and the end of the tenancy on June 2014, if the claimant cannot provide evidence of this, as per the principles set out in Krell v Henry, the Defendant was released from any further obligation in respect of the tenancy and in other principles tenants only pay the relevant advertising costs necessary/that were paid to re-advertise the vacancy of property.

 

7.The strictest of question will be put to the claimant and her agents as to why they rented the property out to the co-tenant (Mr Valentine Kagundire) when they were aware a frustration of contract had occurred 2 months before the tenancy start date and they would make a loss when the contract was a ‘2 tenant- tenancy’ for a ‘2 bedroom tenancy property’ and why they did not terminate the contract to both tenants, which would have been the logical thing to do in order to rent out the property to other students and keep 100% profit.

The defendant will provide evidence that properties of these type and similar location/size/vacancies are rented out at a rapid speed on a regular basis by experienced and correctly trained estate agents and thus if the property was advertised correctly it would have been easily re-rentable and no loss would have been made which is fault of the claimant and the claimant’s agents and not the defendant, who authorized the agent to re-advertise the vacancy. The claimant seeks ‘full rent’ as payment of the monies owed, however the tenancy agreement included bills capped to £100 a month per tenant, as there was a co-tenant who did keep to the tenancy in question (xxxx), these bills would have been paid by the last tenant and therefore the claimant will be put to the strictest of evidence that the bills were over £100 on every tenancy month in question and that the claimant is not trying to overzealously inflate costs and thus the defendant will again question the claimant to the strictest of proof that she has mitigated her losses as per CPR court guidelines.

 

8. The DPS Deposit which was paid to Frank Marshalls (the agent of the claimant) and was never returned to the defendant at any point neither was any notice that it would be held and this will be put to strict question against the claimant that deposit protection laws were not broken. The defendant gave Frank Marshall authorization to keep this deposit to re-advertise the property and cover any costs involved with doing so which means the defendant has already covered the advertising costs and storage costs which the defendant used/the frustration of contract caused to the claimant and her agents. The claimant has not listed anywhere in her claim any mention that the deposit of £300.00 was held by herself the claimant and her agents. On speaking to the DPS in a recorded audio phone call on 01/06/15, the DPS confirm that the claimant’s agent have already made a claim for this deposit money due to ‘rent arrears’ and thus the claimant has not made any mention of this, therefore her claim amount should include a £300 deduction of the rent/total which it does not, therefore the claimant will be put to the strictest of proof that they have not received any deposit funds back and why they are not including this.

As this deposit was not returned to the strict question will be bought to the claimant as to why they did not ensure their agents were following the correct DPS deposit protection schemes and the claimant as a ‘landlord’ was not also following the government deposit law and also why the defendant has not deducted this fee from her total claim costs.

Furthermore it is outlined by the courts under legislation that if you rent your home on an assured shorthold tenancy that started after 6 April 2007. In England and Wales must be registered with a deposit scheme.

The TDP/DPS also state that ‘once your landlord has received your deposit’, they have 30 days to tell you:

 

  • the address of the rented property
  • how much deposit you’ve paid
  • how the deposit is protected
  • the name and contact details of the tenancy deposit protection (TDP) scheme and its dispute resolution service
  • their (or the letting agency’s) name and contact details
  • the name and contact details of any third party that’s paid the deposit
  • why they would keep some or all of the deposit
  • how to apply to get the deposit back
  • what to do if you can’t get hold of the landlord at the end of the tenancy
  • what to do if there’s a dispute over the deposit

From the above the defendant will bring strict question as to when the claimant provided evidence of it’s dispute resolution service, the name and contact details of ‘any third party’ that paid the deposit (the estate agent of the claimant’s specific staff name or contact details.) and what to do if the landlord is not contactable or if there is a dispute over the deposit (in all paperwork there was never any contact details for the claimant). The defendant will bring evidence that this information was not provided in the tenancy and at any point by the claimant or the claimant’s agents.

Furthermore the TDP deposit laws state ‘Your landlord must return your deposit within 10 days of you both agreeing how much you’ll get back.’ Strict question will be bought to the claimant on when they informed the defendant of this and followed TDP statutory law.

In this element strict argument will be bought that the landlord did not follow this protocol and deposit laws. All costs incurred by the claimant or the ‘landlord’ have been already paid out via the DPS scheme and the defendant does not owe any of the monies asked by the claimant due to the facts provided.

 

I hereby confirm that the facts and statement given was true to the best of my knowledge.

 

 

Signed: Dated:

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