Tenancy deposit certificate information

[mrkjd]

Our landlord is revenge evicting us after we pushed for repairs to the property.

 

On reviewing our tenancy documentation it is clear the agent he used did not provide all the prescribed information required.

 

We want to sue for the deposit return plus penalty award.

We are aware the landlord is ultimately responsible but the agent signed the deposit scheme forms and managed the process.

 

We feel the landlord may suggest it was therefore not their fault and minimise the penalty whilst the agent deals with many properties and our expectation of going thru them was for due diligence and process to be followed which warrants a higher penalty.

 

So we want to sue both parties

. Is this advisable and if so,

how would any award by the judge be applied?

 

As a relevant factor,

we are suing in respect to the original deposit against a tenancy agreement for 12 months in 2013-2014.

 

We signed another 12 months 2014-2015.

 

From what I've read elsewhere it appears we can sue twice ie for the failure to comply with the PI of the 2007 Order for the first agreement then again for the second agreement

. Indeed that 2nd agreement then rolled over to monthly renewable so is that a 3rd instance of noncompliance?

 

So the deposit amount is£1200.

We wish to apply for the maximum penalty of 3x 1200 being 3600 plus the deposit of 1200 making a total of £4800.

And if this apples for both 12 month terms then the total settlement is £9600.

Is this correct?

[AndyOrch]

Hi and Welcome to CAG

 

Often there is only one defendant (person being sued) at a time.For example, if you have an employment contract and it is breached you sue your employer and that is it. However, there are other instances where multiple parties may be responsible for the harm, requiring the joinder of many individuals and entities to the lawsuit.However this is a very complex area of law and you may require professional legal advice.

 

I think you need to decide which defendant is liable and more worthwhile going after.You cannot recover more than you are entitled to. You may sue both parties, but you will only get the amount you as a Claimant are entitled to. If you received more than you were entitled to you would be unjustly enriched.

 

Here is the relevant CPR with regards to adding parties later to a claim if required.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19

 

Regards

 

Andy

[mariner51]

Age, time and frequent changes to deposit protection legislation/case law has dimmed my memory.

You may be able to jointly name both LL & LA on the claim, Judge would decide & apportion liability.

In theory, non-protection claims should be via Part 8 CC path with an initial fee of £1000+ and risk of other Parties full legal expenses if you lose. Since the SCC claim limit was raised to £10K, many cases are heard by SCC, at Judge's discretion, where allowable expenses are capped, or he could refer it to Part 8 path.

I believe the Deregulation Act, or was it the Localism Act, gave LLs a 3month Grace period to protect a deposit for a continuing, pre-existing Tenancy.

Also the Principle is that most Legislation is not back datable and claims are decided on legislation/case law pertaining at relevant time of 'offence'.

 

Andy & I suggest you engage one experienced in this field.

[mrkjd]

Thank you both for your contributions. I think I'll just sue the landlord and he can have a dust up with the agent if he feels he cocked up (maybe not the correct legal term!)

 

The Part 8 CC path requirement is interesting - why would a plaintiff have to go down that path? Could the defendant insist that path is used prior to the hearing or is it for the SCC judge to decide? So for clarity, are we agreeing that there are 2 separate noncompliance acts here - 1 for the initial 12 months, and another for the following 12 months for which separate agreements were signed?

 

My view is that this is the case and as the purpose of the penalty is to encourage compliance it is applicable whereas if it was compensatory this may not be the case as the "losses" would merge.

 

We can't afford professional legal help and are not eligible for legal aid so we have to fight this ourselves. The specifics of the case do appear strong in reviewing them against various case law so we would probably go down the CC path if required.

Edited August 11, 2016 by honeybee13
Paras.

[mariner51]

So you want 2 revenge Penalties for 1 so called revenge eviction (in your opinion).

If LL evicted you after serving s21, that is a 'No Fault' procedure, and no reason can be assumed.

Eviction is always a shock for the T, esp if hearing costs awarded against them.

 

 

I would not like to prejudge the Judge, but if he feels as you, he can award a discretionary Penalty of 1-3x deposit for each breach, but for multiple claims involving same LL & T, Judges' often award lowest amount for each breach, so T gets their lawful due, but is not unduly 'enriched'. It is not compensation per se.

[Steve__M]

it is clear the agent he used did not provide all the prescribed information required.

 

What was clearly missing? As a landlord, I serve the tenants with a standard 15 page form generated by the Deposit Protection Service based on the deposit details! It's not obvious to me which bits are mandatory.

 

Have they finally provided you with all the details. If not, the Section 21 notice that (presumably) has been issued is not valid.

[mrkjd]

I have read several posts on SAR in respect to financial issues and elsewhere discussions with landlords about the same but I have seen little on what tenants can expect to receive when making a SAR to an agent.

 

It is a little difficult to specify data I would like when I am not conversant with what an agent would keep! I would like to see communications between the agent and landlord in respect to regular inspections of the property for which i was present (and for which I feel a copy of reports should have been given for joint agreement). I would like to see my tenant file. I would like to see any communications about me in respect to my deposit and referencing. Anything else?

[dx100uk]

merged with existing thread

 

 

an sar is for everything personal they hold concerning 'you'

you do need to specify anything as such

 

 

not sure with regard to your issue if its applicable mine

i'll let those that have already helped you comment

 

 

dx

[mariner51]

AIUI a SAR will only provide info held, naming Subject specifically. You may have been present at inspections but not named. You could try a separate FOI request or couch your SAR to include all pertinent info held during youe occupation

of

between .

[legalistic]

mrkjd, my feeling is that you ought to be suing only the agent. He had a contractual duty to manage the tenancy. The LL surely can't be liable if he has paid the agent to do the job. This area of law is very messy and endlessly changing. I've looked, though, at advice to agents on managing tenancies and it says the agent can be liable. Agents don't normally get basic things, such as prescribed information, wrong. They usually have preprinted forms etc. Are you sure there has been an error. I don't think you can rely on the new law of retaliatory eviction as your tenancy was before 1 October 2015.

[mrkjd]

I just submitted a claim against my landlord using MoneyClaim Online but have noted a couple of possible issues:

 

I put the landlords home address down but then noticed that the tenancy agreement says notices "may" be sent to the agents address. Can I change the address online? Do I need to since it only says "may" rather than "shall" or "must"

 

I have also been advised that I should have included the agent as a defendant. Can I add a defendant?

 

I have looked on the Moneyclaim website and user guide but can't seem to find anything on these 2 points. Can anybody advise me on here?

[AndyOrch]

I just submitted a claim against my landlord using MoneyClaim Online but have noted a couple of possible issues:

 

I put the landlords home address down but then noticed that the tenancy agreement says notices "may" be sent to the agents address. Can I change the address online? Do I need to since it only says "may" rather than "shall" or "must"

 

I have also been advised that I should have included the agent as a defendant. Can I add a defendant?

 

I have looked on the Moneyclaim website and user guide but can't seem to find anything on these 2 points. Can anybody advise me on here?

 

Thought we had discussed this in post#2 ?

[legalistic]

mrkjd, unless I have missed it you have not said whether you are challenging the eviction and whether your claim for penalties is actually a counterclaim in response to the LL's possession claim.

 

 

Incidentally a managing agent cannot obtain a possession order.

 

 

Only the LL can do that. (Chesters Accomodation Agency v Abebrese (1997) The Times 28 July CA).

 

 

You say you have sued the LL.

S/he can join (add) the agent as a defendant or choose to later claim any penalties from the agent whose responsibility the PI was. Or the procedural judge may give directions as to defendants.

[mrkjd]

It is not a counterclaim

- we discovered the problems rev PI when reviewing the tenancy documentation after a S21 was served and have decided to peruse that matter seperately thru the SCC.

 

 

The S21 is also flawed and we intend to make the court aware of that if/when the landlord applies to the court for possession.

 

 

Assuming the landlord gets the next S21 correct we will happily comply and leave by the expiry date.

We also have a compensation claim ongoing in respect to damp issues which may or may not go to court but my understanding is we have up to 6 years to decide.

 

 

Thanks Legalistic for pointing out that the LL can sue his agent seperately.

We thought this might be the case as the "mistakes" seem to derive from their handling of the PI.

 

 

The reason for considering adding the agent is that,

we were dealing with a longstanding and professional intermediary and so any award by the courts would likely reflect that and could apportion liability between the agent /landlord directly whereas expectations of the court on the landlord alone may be less rigorous.

[mrkjd]

We didn't receive a tenancy deposit certificate from the DPS originally but chased it up and they claim it was sent and sent us a copy. Looking at the certificate however it doesn't show when the deposit was secured with them. I thought I read somewhere that the Cert has to show certain information but I can find no reference to this in the tenancy Deposit (Prescribed Information) Order 2007 and the DPS are saying they don't have to provide the date. This seems odd as surely that is key information? Does anybody on here know if there is a requirement for certain info on the certificate and provide a reference to it for me to check?

[mrkjd]

Sorry - I should add these copies were sent by email. We also never got a copy sent by snail mail which their T&Cs suggest should be the case

[honeybee13]

Hello there.

 

I've moved you to the lettings forum, the guys here should be able to help you.

 

HB

[Steve__M]

The form that I send my tenants is automatically generated by the DPS website from information I provide, and I see it does not include the dates they received the money.

 

Technically, the deposit is not fully protected until you are provided with the Prescribed Information, so the date on your email would be the relevant date rather than the date they gave the money to the DPS.

 

The form I get says:

 

I/We (being the Landlord) certify that –

(i) The information provided is accurate to the best of my/our knowledge and belief

(ii) I/We have given the Tenant(s) the opportunity to sign this document by way of confirmation that the

information is accurate to the best of the Tenant(s) knowledge and belief

 

Personally, I believe that it is acceptable to serve it by email as it is also acceptable to serve legal documents by email.

 

The risk that the landlord takes is that it is sent to the wrong email address or that the tenant provided an email address that he or she doesn't actually use, or it goes into the spam folder.

 

Normally, I send my DPS forms by email and ask the tenant to reply confirming that the information is correct. If they didn't reply I would print it off and send it to them.

 

Seems like a better solution than wasting 17 pages of A4 and ink!

 

If you believe that the Prescribed Info was never sent, I guess you would have to be pushy with them to provide evidence that it was sent or that the deposit was protected in time (e.g. forward you a copy of the original email or provide the DPS transaction receipt).

 

You have 6 years to issue a claim, so you could decide to wait till you move out - perhaps using the fact as leverage to get your deposit back easily.

[mrkjd]

The form that I send my tenants is automatically generated by the DPS website from information I provide, and I see it does not include the dates they received the money.

 

Technically, the deposit is not fully protected until you are provided with the Prescribed Information, so the date on your email would be the relevant date rather than the date they gave the money to the DPS.

 

The form I get says:

 

 

 

Personally, I believe that it is acceptable to serve it by email as it is also acceptable to serve legal documents by email.

 

The risk that the landlord takes is that it is sent to the wrong email address or that the tenant provided an email address that he or she doesn't actually use, or it goes into the spam folder.

 

Normally, I send my DPS forms by email and ask the tenant to reply confirming that the information is correct. If they didn't reply I would print it off and send it to them.

 

Seems like a better solution than wasting 17 pages of A4 and ink!

 

If you believe that the Prescribed Info was never sent, I guess you would have to be pushy with them to provide evidence that it was sent or that the deposit was protected in time (e.g. forward you a copy of the original email or provide the DPS transaction receipt).

 

You have 6 years to issue a claim, so you could decide to wait till you move out - perhaps using the fact as leverage to get your deposit back easily.

 

Thanks for the detailed reply Steve. There is a seperately issue with PI that we are persuing but my query here was with specific regard to the certificate issued by DPS. Seems odd to me that a certificate would not include information to demonstrate to the recipient that the issuing authority acknowledged conformance required under the terms! To have to assume the email date is the deposit date does not seem satisfactory to either tenant or landlord

[honeybee13]

I have merged this thread with your previous one because there could be information that's useful to the people advising you.

 

HB