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Getting my TDS deposit back

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  • Premier_2
    Premier_2 Posts: 15,141 Forumite
    10,000 Posts Combo Breaker
    HGLTsuperstar wrote: »
    The plot thickens. It was registered with the TDS but not until over a month after it was taken. TDS confirmed this is against the law. The deposit is being held by the LA as "stakeholder" and cannot be released without the written consent of LL who is still not answering. TDS say I can lodge a dispute through them but this will take about 2 months and then only if they say they can take the case on. And only then will I get my deposit back not any compensation for the fact that I need the money now (and am entitled to it). Not received any correspondence from LL or LA so don't even have a checking-out form or know how much, if any, of deposit LL wants to hold back.
    AAGGGGGHHHHHHHHHHHHHHHH!

    Why haven't you done this?

    If they won't consider the dispute due to the LL being delinquent in registering the details, you'll win by default
    http://forums.moneysavingexpert.com/showpost.html?p=13168235&postcount=14

    If you want the money back soonest, this would be the best route as court action will take longer.

    By failing to allow the scheme to act to resolve the dispute, it is you that the court may not be pleased with, and you certainly are not mitigating any loss if you consider you have any claim for the delay in getting your deposit back.
    "Now to trolling as a concept. .... Personally, I've always found it a little sad that people choose to spend such a large proportion of their lives in this way but they do, and we have to deal with it." - MSE Forum Manager 6th July 2010
  • Premier_2
    Premier_2 Posts: 15,141 Forumite
    10,000 Posts Combo Breaker
    moneysavinmonkey wrote: »
    ...If you win you will get your legal remedies (ie your deposit + maybe 3x) ...

    Why wind people up giving them false hope - you know there is no ability to claim 3x deposit once it is protected. :confused:
    http://forums.moneysavingexpert.com/showpost.html?p=13082557&postcount=1
    http://forums.moneysavingexpert.com/showpost.html?p=12947719&postcount=21
    "Now to trolling as a concept. .... Personally, I've always found it a little sad that people choose to spend such a large proportion of their lives in this way but they do, and we have to deal with it." - MSE Forum Manager 6th July 2010
  • neverdespairgirl
    neverdespairgirl Posts: 16,501 Forumite
    Premier wrote: »
    Why wind people up giving them false hope - you know there is no ability to claim 3x deposit once it is protected. :confused:
    http://forums.moneysavingexpert.com/showpost.html?p=13082557&postcount=1
    http://forums.moneysavingexpert.com/showpost.html?p=12947719&postcount=21


    Premier, you are being irresponsible and irritating when you keep saying that.

    The truth is, there is no defininte answer on this one. Some ppeople are getting it in small claims cases. Some aren't. The statute isn't entirely clear, and there is no case law yet.
    ...much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.
  • Premier_2
    Premier_2 Posts: 15,141 Forumite
    10,000 Posts Combo Breaker
    neverdespairgirl wrote: »
    Premier, you are being irresponsible and irritating when you keep saying that.

    The truth is, there is no defininte answer on this one. Some ppeople are getting it in small claims cases. Some aren't. The statute isn't entirely clear, and there is no case law yet.

    I am not being irresponsible. It may irritate you but I just don't wish to leave other people with false hopes.

    This is what the law says:
    213 Requirements relating to tenancy deposits
    (1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.
    (2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).
    (3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.
    (4) For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.
    (5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to—
    (a) the authorised scheme applying to the deposit,
    (b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and
    (c) the operation of provisions of this Chapter in relation to the deposit,
    as may be prescribed.
    (6) The information required by subsection (5) must be given to the tenant and any relevant person—
    (a) in the prescribed form or in a form substantially to the same effect, and
    (b) within the period of 14 days beginning with the date on which the deposit is received by the landlord.
    (7) No person may, in connection with a shorthold tenancy, require a deposit which consists of property other than money.
    (8) In subsection (7) “deposit” means a transfer of property intended to be held (by the landlord or otherwise) as security for—
    (a) the performance of any obligations of the tenant, or
    (b) the discharge of any liability of his,
    arising under or in connection with the tenancy.
    (9) The provisions of this section apply despite any agreement to the contrary.
    (10) In this section—
    “prescribed” means prescribed by an order made by the appropriate national authority;
    “property” means moveable property;
    “relevant person” means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant.

    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 the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(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.
    (2) Subsections (3) and (4) apply if on such an application the court—
    (a) is satisfied that those requirements have not, or section 213(6)(a) 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.
    (4) The court must also order the landlord to pay to the applicant a sum of money equal to 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).
    http://www.opsi.gov.uk/acts/acts2004/ukpga_20040034_en_19


    or in plain English:
    If a tenant is concerned that his deposit is not protected by a scheme and/or he has not been provided with the prescribed information and/or the scheme administrator does not confirm that their deposit is protected then he can commence proceedings against the landlord under HA 2004, s 214. Although it appears that if, by the time of the hearing, the landlord has complied with the requirement there is no sanction. If the court finds that the landlord is in breach then it must order up to three times the amount of the deposit to be paid to the tenant within 14 days (s 214(4)) as well as ordering the deposit to be paid either into the custodial scheme or to the tenant (s 213(3)).
    http://www.propertylawuk.net/residentialdeposits.html

    It may seem unclear to you, but the evidence is clear. The article on propertylawuk was written by Michael Walsh (a pupil barrister and visiting acedemic tutor at King's College London) and Daniel Dover (a practising barrister with 10 years experience in property law). The site is maintained and by the general editor, Gary Webber, who with 22 years experience working as a barrister in property law, now works as a District Judge - just the type of judge who would possibly adjudicate over such matter in a county court.

    I think the post here speaks for itself.
    http://forums.moneysavingexpert.com/showpost.html?p=13082557&postcount=1

    Sorry if the evidence doesn't support your own opinion - feel free to post your own opinion as well if you like but remember:
    Pls be nice to all MoneySavers.
    There's no such thing as a stupid question, and even if you disagree courtesy helps.
    "Now to trolling as a concept. .... Personally, I've always found it a little sad that people choose to spend such a large proportion of their lives in this way but they do, and we have to deal with it." - MSE Forum Manager 6th July 2010
  • tbs624
    tbs624 Posts: 10,816 Forumite
    Premier wrote: »
    ......I think the post here speaks for itself.
    http://forums.moneysavingexpert.com/showpost.html?p=13082557&postcount=1

    Sorry if the evidence doesn't support your own opinion - feel free to post your own opinion as well if you like but remember:

    Yes so let's include from that post:
    Prancer wrote: »
    ......We argued the point of two other cases where we knew judges had concluded that subsequent protection did'nt equate to compliance but he'd already made his decision and said he didn't have to follow those as they did not come from a higher court.

    He did though give us permission to appeal saying it would be in the public interest as it's wrong that so many judges disagree and give different verdicts. He also admitted he could be wrong on his interpretation of the law.
    My own highlighting.

    It's worth bearing in mind that put any two of m'learned friends in one room & give them the same pieces of info , and the chances are they may not concur with one another's opinion. If it was all that straightforward no-one would ever need a judicial system, simply a State body that says "this is how it is".

    Premier - the content of some of your posts *can* be helpful but sadly you have developed a unpleasant pattern of persistently hijacking threads with pointless arguing whenever anyone disagrees with you, often repeatedly harping on at one specific poster within a thread.

    You then compound it by telling everyone else that they are "arguing for the sake of it" & reminding others of the very courtesy that you yourself fail to extend.

    It's almost as if you have a need to prove something on a very basic level and it's really becoming tiresome . There's nothing wrong with healthy discussion/disagreement but just don't take it to nth degree all the time

    There is room for everyone's views and the fact that we may all have differing opinions/interpretations of any one situation is what makes life interesting.

    :smiley:l
  • neverdespairgirl
    neverdespairgirl Posts: 16,501 Forumite
    Premier wrote: »
    It may seem unclear to you, but the evidence is clear. The article on propertylawuk was written by Michael Walsh (a pupil barrister and visiting acedemic tutor at King's College London) and Daniel Dover (a practising barrister with 10 years experience in property law). The site is maintained and by the general editor, Gary Webber, who with 22 years experience working as a barrister in property law, now works as a District Judge - just the type of judge who would possibly adjudicate over such matter in a county court.

    I think the post here speaks for itself.
    http://forums.moneysavingexpert.com/showpost.html?p=13082557&postcount=1

    Sorry if the evidence doesn't support your own opinion - feel free to post your own opinion as well if you like but remember:

    What is clear to me is that the statute itself is not crystally-sparkling.

    There is no definite answer to this. Some lawyers, incl. ones you've linked to, think that provided the deposit is protected by the time the matter comes to court, there is no 3 x penalty. Others don't. From what I hear through OH about law centres, judges aren't all acting one way or the other - some award it, some don't. So it's not clear.

    My personal statutory interpretation is that the 3 x deposit is payable if the 14 day rule wasn't complied with, even if the deposit is protected by the time it comes to court.

    Under s.214(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 the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or     [snipped]

    So a tenant can apply to the court where the "initial requirements" have not been met. Under s.213(3):

    Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received

    Under s.214(4):

    The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

    That's a "must", so the court is obliged to order the LL to pay that sum if the test in the statute is met.

    The question therefore is under what circumstances the test is met for the LL to have to pay 3 x the deposit. That's set out in s.214(2):

    (2) Subsections (3) and (4) apply if on such an application the court—
    (a) is satisfied that those requirements have not, or section 213(6)(a) 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.

    So under s.214(4) the order for 3x the deposit is to be made if "initial requirements of an authorised scheme" have not been met.

    Under s.213(3), the requirements are:

    Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received. (my emphasis)

    So it therefore appears to me that the 3 x award is to be made if the intial requirements, including the requirement to do it within 14 days, have not been met. Protecting the deposit later doesn't bring the LL within the requirement to have protected it within 14 days. If the LL is late, it appears to me that he can't meet the requirements to avoid the 3 x rule, he's out of time.

    As I say, it's my opinion, and I could well be wrong. A court with power to set precendent might very well disagree with my interpretation as above.

    BUT, and this is the important thing, at the moment it's not clear. So you can't just state, as you have, that it is clear!
    ...much enquiry having been made concerning a gentleman, who had quitted a company where Johnson was, and no information being obtained; at last Johnson observed, that 'he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney'.
  • redcar_2
    redcar_2 Posts: 631 Forumite
    I can feel another quoting of a huge wodge of statute coming up from premier!

    I can only assume he is a landlord who has not been totally following all the rules as he feels so driven to defend this point and others (ie missing gas checks) whilst being able to be more evenhanded and able to see both sides on other problems.
  • Premier_2
    Premier_2 Posts: 15,141 Forumite
    10,000 Posts Combo Breaker
    tbs624 wrote: »
    Yes so let's include from that post:

    Well if you insist: (the highlighting is included in the original post as made by Prancer)
    ...The landlord had subsequently protected our deposit on receipt of the court claim and the judge ruled that because the Housing Act Section 214 (2) (b) states : "Subsections (3) and (4) apply if on such an application the court -
    is not satisfied that the deposit is being held in accordance with an authorised scheme" there was nothing he could do. It would have to have said "was" not "is". ...
    "Now to trolling as a concept. .... Personally, I've always found it a little sad that people choose to spend such a large proportion of their lives in this way but they do, and we have to deal with it." - MSE Forum Manager 6th July 2010
  • Premier_2
    Premier_2 Posts: 15,141 Forumite
    10,000 Posts Combo Breaker
    redcar wrote: »
    I can feel another quoting of a huge wodge of statute coming up from premier!

    I can only assume he is a landlord who has not been totally following all the rules as he feels so driven to defend this point and others (ie missing gas checks).

    Don't assume ;)

    ...and please try to reference comments if you wish to try and discredit me by suggesting things out of context so that others can actually decide for themselves the intent in which it was posted :)

    Better still, please keep to the subject matter in hand rather than trolling or making personal attacks on fellow moneysavers. Remember:

    Pls be nice to all MoneySavers
    "Now to trolling as a concept. .... Personally, I've always found it a little sad that people choose to spend such a large proportion of their lives in this way but they do, and we have to deal with it." - MSE Forum Manager 6th July 2010
  • redcar_2
    redcar_2 Posts: 631 Forumite
    I think the problem in prancer's case was a failure to make the point that schemes themselves require registration within 14 days so if that is missed then the deposit is not being held in accordance with the scheme. The is underlined by schemes (TDS) refusing to arbitrate if the 14 day deadline is missed.
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