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LL did not protect deposit despite letter before action - Help please with drafting particulars of claim

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I would welcome some suggestions from Forum Members please as to what I should with regards to a landlord who is taking her time in restoring central heating in the house which I am renting. I have been without heating now for a week. Prior to this, the boiler had broken down a number of times and the landlord was told by two of the engineers that the boiler was obsolete and needed replacing. I have been in touch with the LL and made the point that the situation is becoming untenable, but all I got back was that she is dealing with the matter.

 

I would be grateful for some suggestions about what options are available to me so that I can use some leverage to get the LL to act and act urgently?

 

I hope members can help. Many thanks in advance. Mack

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Hello there. I'm sorry to hear that you're having problems.

 

I've moved your thread to the lettings forum, where the guys should have answers for you. Please bear with us until they're able to get here. :)

 

HB


Illegitimi non carborundum

 

 

 

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Background

I posted the following before:

Landlord is taking too long to restore heating in rented house

[i would welcome some suggestions from Forum Members please as to what I should with regards to a landlord who is taking her time in restoring central heating in the house which I am renting. I have been without heating now for a week. Prior to this, the boiler had broken down a number of times and the landlord was told by two of the engineers that the boiler was obsolete and needed replacing. I have been in touch with the LL and made the point that the situation is becoming untenable, but all I got back was that she is dealing with the matter]. NB: The heating issue was resolved 3-weeks after I first reported it to the LL.

 

I would be grateful for help/steer from Forum Members please in drafting particulars of claim in relation to unprotected deposit. The 14 days that I gave the LL to respond have lapsed. I am now have no choice but to seek redress in the courts in accordance with the legal provisions. But I have difficulty in constructing the particulars of claim, that is why I am seeking help from Forum Members please. Might any Forum Members be in a position to help me draft the particulars of claim please based on the following information:

 

I paid the deposit into stages - on the date of the viewing (but I cannot remember this date, I have an undated receipt) I paid the LL £100, following which I paid the balance of £1250 on 26/05/11 which was inclusive of £625 rent for July 2011 (Summary breakdown: deposit - £725; July rent - £625). I have receipts for both payments. I moved into the property on 1 July 2011.

 

I need to include the disrepair within the claim, perhaps under performance?

 

Here is the content of the letter before action sent on Saturday 2 April 2016 by first class recorded post. This letter is modified from template which I found on the shelter website. I know that the letter was received and I have a copy of the signature which I obtained from the Royal Mail tracking website.

 

I would be most grateful for any help you can offer with regards to framing the particulars of claim please.

 

Letter before action (copy):

 

LETTER BEFORE ACTION: FAILURE TO PROTECT MY TENANCY DEPOSIT IN ACCORDANCE WITH SECTION 213 OF THE HOUSING ACT 2004.

As you are aware, I am under an Assured Shorthold Tenancy Agreement (hereafter referred to as the Agreement) at your property located at the above mentioned address. I confirm we signed the Agreement on 26 May 2011 and I took occupancy of your property from 01 July 2011 to date.

 

On 26 May 2011, I paid you £1250 and prior to this I paid you £100 - bringing the total amount paid to you to £1350, of which £625 was advance payment for July 2011 rent. This left the sum of £725 which you held back as deposit. I confirm that I took up the tenancy from 26 June 2011, but physically moved into the property on 1 July 2011.

 

Section 213 of the Housing Act 2004 requires that you protect my deposit with a government-backed scheme within 30 days of the payment of my deposit. You are also required to provide me with details of the scheme you have used along with certain prescribed information.

 

It appears to me that you have failed to:

(a) protect my deposit with a government-backed scheme.

(b) protect my deposit within the requisite 30 days of the payment of my deposit.

© provide me with the prescribed information about the tenancy deposit scheme you used, within the required 30 days of the payment of my deposit.

 

Section 214 of the Housing Act 2004 provides that, where the court is satisfied that you failed to comply with your obligations under the law relating to tenancy deposit protection, it must order that you pay me up to three times the amount of the deposit paid.

I will also be asking the court to order that you pay my deposit into a custodial tenancy deposit protection scheme.

 

I hope it is not unreasonable to let you know that I am open to reasonable offers in order to settle this matter.

 

If I do not receive payment of an agreed amount being the penalty for failing to comply with your legal obligations or a substantial response from you by 21 April 2016, I will issue Court proceedings in the County Court without further notice or delay.

 

I will also be asking for an order to cover my costs, in accordance with Court rules and regulations.

 

I will be relying on the Court’s Civil Procedure Rules Practice Direction: Pre-action Conduct. I therefore draw your attention to paragraph 13 concerning the Court's powers to impose sanctions for failure to comply with the Practice Directions, and inform you that ignoring this letter before action may increase your liability for costs.

 

Disrepair and non-compliance with gas safety requirements

I have previously raised the issue of boiler maintenance, noting that the boiler has not been subject to any annual maintenance and certification as required by law. As you are clearly showing no interest in remedying the situation to which I have previously drawn your attention on several occasions, I have no choice but to seek advice from the Council.

 

Please note:

(a) Since the boiler broke down, we have endured cold conditions in the house which caused a physical interference with our enjoyment of the property or with our ordinary and lawful enjoyment of the premises.

(b) I have previously made you aware that the boiler was ‘condemned’ on 24 March 2016 due to the danger of carbon monoxide emission which is potentially a lethal situation. We have been without heating for just over a week to date.

© The boiler was operating without a gas safety certificate for a number of years when it was your obligation to ensure that a safety check was under taken annually.

(d) No annual gas safety checks were carried out to make sure gas installations in the property were operating safely and that we were living in a safe environment.

(e) No landlord gas safety certificates have been provided to me as the tenant, contrary to the legal requirements.

(f) The boiler, which was an obsolete model, broke down on numerous occasions.

(g) You seemed unconcerned and instead, you focused your attention on how much the previous repair cost you.

(h) The boiler operated poorly which affected the heat distribution in the house, causing areas around the windows to be affected by severe mould.

(i) I did not receive any records for electrical safety in the house.

(j) I was not provided with an energy performance certificate at the commencement of the tenancy.

 

I look forward to hearing from you.

Yours sincerely

Edited by Mak6
Editing repetitions

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Hello there.

 

I've merged your two threads, to keep the information together.

 

HB


Illegitimi non carborundum

 

 

 

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LBA is far too detailed IMO

A simple statement statement that you will apply to Court for deposit non-protection action after 14 days, would suffice

Court can only Order deposit is returned + adjudged Penalty, if you win, otherwise 'double jeapordy' should prevent new claim.

How did you source the property LA or LL direct?

How do you know deposit was not duly protected?

 

 

3 weeks ii not undue amount of time to source parts/new boiler & qualified fitter, esp over Easter hols.

How did you serve original Notice?

 

 

I am not condoning any of the LL 'oversights', but keys to property should not have been provided until full deposit and first moth rent was received in cleared funds.

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Thank you Mariner51 for taking the trouble to read my post, and for getting back to me. I will answer your questions in the order in which they appear:

(i) I sent the LL a 'letter before action' but did not achieve an outcome, instead the LL sent me an e-mail as follows (copied and pasted in red font below):

WITHOUT PREDIJUCE

I am not prepared to enter into your pettiness…clearly you have a lot of time on your hands hence the longpointless letter. Iwill not be replying to your letter unless there is something else wrong with the house youlive in.

Yours faithfully

(ii) I do not understand that 'double jeopardy' bit in your comments. I know what 'double jeopardy' means but I cannot follow the context in this case.

(iii) I sourced the rental property following an advert put in the local paper by LL direct.

(iv) I have checked with the deposit service providers, I never received the prescribed information, and finally, the LL has ignored my letter before action.

(v) 3 - weeks is too long to go without heating and hot water for a property I am paying rent for. I happen to own a house which I am renting in another part of the country and my tenants are fully protected with 24/7 breakdown cover. I can never expect them to go for that length of time without central heating and hot water - I would be irresponsible if I did. My LL already knew that the boiler had seen better days, and was advised by two engineers on separate occasions to replace it. Her responses were partly putting the blame on me, and I have taken exception to that.

(vi) I have never served a notice on the LL, except sending her the letter before action.

(vii) Deposit and first month rent were given to the LL in cash a month before I took up occupancy of the property.

 

I hope that clarifies the situation Mariner51. But please do not hesitate to ask me to clarify anything else.

 

Many thanks once again.

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So sue for non-protection of deposit. LL could be advised to request claim to be via full CC path, as Statute requires, not SCC; that would require you to pay the full hearing fee of £1000+ upfront.

You confused me by saying you paid deposit in 2 stages with initial payment of £100 on unknown date.

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Just a quick look in

 

You are still having boiler issues

Landlord did not protect deposit.

 

I would maybe focus on the Heating issues and leave the second claim for the deposit till after you have found somewhere else to live. That is a very handy card to keep in your pocket should he try and retain the deposit.


PLEASE HELP US TO KEEP THIS SITE RUNNING

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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"The heating issue was resolved 3-weeks after I first reported it to the LL."

 

 

Also no indication of current status of T or when AST agreed.

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"The heating issue was resolved 3-weeks after I first reported it to the LL."

 

 

Also no indication of current status of T or when AST agreed.

 

Thank you SabreSheep and Mariner51 - Please note that I am still occupying the property in question. The AST was agreed on 26/05/2011.

 

Many thanks once again.

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OK so boiler issue is fixed.

 

Just be aware that if you issue a claim now, your landlord may seek a section 21 against you out of spite, I am guessing you are now on a rolling tenancy

 

SO you may want to issue the claim when you have somewhere else to go.

 

Im just being pragmatic here and suggesting you use the cards you hold at the opportune time :)


PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 

 

 

 

The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Thank you SabreSheep. Yes, I have thought about that - and I have decided that I will cross that bridge when I reach it. I have a house in another part of the country which I am currently renting out. So I can potentially give my tenants 2 months notice and move back into my house.

 

I have spent a lot of time researching this topic and I have more or less drafted particulars of claim which I hope to file this week.

 

Thank you once again SabreSheep.

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Report back from the Court:-

Thank you to all Members who contributed to this thread. I would not have got this far, nor would I have had the means to collate a competent case file and present get me to the present position. There are two cases which were rolled into one court sitting: (i) non-protection of deposit; (ii) disrepair (with a counterclaim by the LLs).

 

Court proceedings

1. The Judge said that the 2-hour allocated for the two matters was not long enough.

2. He asked us to find some commonality between us, and decide an outcome outside of Court. We were asked to go away for an hour.

3. My partner and I found the defendants to be full of bravado, sarcasm and innuendo - despite our best efforts to engage, discussions were inconclusive.

4. We went back to the Judge's Chambers; the Judge said that he will use the remaining time to identify the issues so that he can draft directions.

5. The Judge spent over 1.5 hours going through the case files, and advising the defendants on what they should do. Other than the counterclaim, the defendants had not filed any defence whatsoever.

6. If the case had been heard on the day, the defendants had no defence on record.

7. The Judge gave the defendants generous timescales to file their defence, spelling out exactly how they should approach each item of contention.

8. The Judge was openly hostile to my partner and I, we kept our cool, kept quiet, listened and took notes. He behaved as if we were not there.

9. There is a Notice on the Court Notice Board "Court Staff cannot ......recommend a course of action" - but that's what happened exactly.

 

In view of the fact that the defendants were given until the end of December 2016 to file a their defence, the cases will not be heard until 2017.

 

In my opinion, had the hearing gone ahead that day, the LLs would have had no defence upon which to base their testimony. Therefore I feel that the 'pendulum' has very much been swung in favour of the defendants and the case management protocols & timeframes have been compromised.

 

I would welcome and indeed would be grateful for your thoughts and suggestions on this situation, please. I confirm I have been factual with my observations as this is the only way I can expect to be helped in the same way that Members have helped me in the past. I thank you in advance.

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The Judge is not 'Court staff', unlike ushers, clerks etc and will often provide advice/direction to both sides in a dispute to reduce Court costs/time. You heard all recommendations made to other Party and can amend your evidence as reqd before the adjourned hearing. (which is/was when?).

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judge has decided that the claim is complex so has ordered the defendant to come up with a defence. This may well be poor when it comes to it but at least it will stop them from appealing, which will take up more time and money. The judge is trying to keep everyones costs and time to a minimum and so the order is not that unusual. Look carefully at any case directiond given to you and follow them to the letter. When the hearing proper starts the judge will be niot best pleased if either party is not fully prepared.

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Thank you very much mariner51 and ericsbrother for your enlightened opinions; which in turn have enlightened me!

 

I had been hugely troubled by the Judge's behaviour towards my partner and I. But having read your comments, I have to react differently to what happened. Besides, the Judge's comments does not alter my evidence which I feel is quite robust. Your comments have been extremely helpful because my thoughts had become transfixed in one place, but you have shifted my thinking to a more constructive way of looking at the situation.

 

I cannot thank you enough. The hearing is going to take place hopefully, early next year since disclosure is now scheduled to happen in December 2016.

 

As always, your help makes a difference to people like my partner and I, and many others who seek help from this community of kind-hearted people.

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I don't understand what's complicated about not protecting the deposit.

LL either did or did not. Full stop.

I understand the disrepair that the LL could mess about with by producing useless and irrelevant paperwork.

What was his counterclaim for?

I hope you've not stopped paying rent while taking him to court...

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