Getting my TDS deposit back

becky_rtw

moneysavinmonkey wrote: »

OP.

I'm shocked that TDS say they may not handle your claim - what the hell do they do then!!! Did they mean just the bit about the compensation perhaps?

Hi MSM - they've said this to me also - if its not protected within the 14 days (mine was 4 months late) they said they wont get involved in any disputes - I think this is the scheme where the LL/LA keeps the money but just 'insures' it with TDS which could be why. Anyone else had this problem?

moneysavinmonkey

hmm.

thanks for this info becky_rtw....

are you saying that TDS wouldn't let you claim back your deposit at all (even if you just submitted a normal claim) or just wouldn't get involved in the dispute over whether it had been protected in time?

If the first is true it seems that (at least with the TDS scheme) if the deposit isn't registered in time there is effectively no protection for the tenant.

Is there anyway that you can get some written confirmation from the TDS scheme that they will not let you file a claim in these circumstances under the scheme rules? If you then made a claim for 3x deposit in small claims court this could produce this as evidence that you deposit was still not (really) protected.

redcar_2

I've seen this on landlordzone too where TDS said they would not arbitrate even though the guy's deposit was lodged and in time, as there were missing clauses in the contract.

See this thread.

http://www.landlordzone.co.uk/forums/showthread.php?t=11324

He is currently suing http://www.landlordzone.co.uk/forums/showthread.php?t=12581 but its getting quite complicated - from a lurker's perspective!

moneysavinmonkey

Thanks for the link redcar

Be interested to have the comment of Premier.. this is an interesting development. Assuming all the schemes refuse to arbitrate any disputes where the deposit is registered late then it seems the landlord can not defend a 3x penalty claim by belatedly protecting the deposit?

Premier_2

moneysavinmonkey wrote: »

Thanks for the link redcar

Be interested to have the comment of Premier.. this is an interesting development. Assuming all the schemes refuse to arbitrate any disputes where the deposit is registered late then it seems the landlord can not defend a 3x penalty claim by belatedly protecting the deposit?

What's there to comment on?

The law as written states:

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).

According to redcar the law "is relatively clear on this"

So clear that 214(4) states:

(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.

But note that:

(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.

213(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

but of particular note not

213(6)(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord.

But I'm not going to argue with you. I have posted the law as written, and a link to a company that specialises in property law, maintained by Gary Webber, a practising barrister for 22 years specialising in property law. You are of course, free to come to your own conclusions.

Someone spending money on a case in a county court means nothing. Even if they happen to win, it won't set any legal precident - legal precidents are not set by small claims courts.

becky_rtw

moneysavinmonkey wrote: »

hmm.

thanks for this info becky_rtw....

are you saying that TDS wouldn't let you claim back your deposit at all (even if you just submitted a normal claim) or just wouldn't get involved in the dispute over whether it had been protected in time?

If the first is true it seems that (at least with the TDS scheme) if the deposit isn't registered in time there is effectively no protection for the tenant.

Is there anyway that you can get some written confirmation from the TDS scheme that they will not let you file a claim in these circumstances under the scheme rules? If you then made a claim for 3x deposit in small claims court this could produce this as evidence that you deposit was still not (really) protected.

Hi MSM,

There is no dispute at present as I'm not at the end of my tenancy yet, but they said in event of one they would not be able to get involved! No idea why - the guy who I spoke to at TDS did infer that they are having a problem with late registration of desposits, because officially you are not allowed to register it if its beyond the 14 days, so rogue LL/LA's are changing the dates of tenancy on the TDS forms!

I agree if they wont get involved it leaves the tenant with no choice but small claims...no idea about 3 times thing though. Thats a question for you and Premier to argue about.

moneysavinmonkey

Thanks for posting that *again* Premier!!

I think maybe you have missed my point. I'm in agreement with you that the law SAYS that the 3x penalty doesn't apply in the case of >14 days registration. (literal/purposive interpretation is then up to the individual judge)

BUT as the law says:

(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.

In the case of becky_rtw & the OP their deposit is not being held in accordance with the authorised scheme - as confirmed by the TDS that they will not get involved in any dispute.

So at least in the case of 1 of the schemes it is not possible to validly protect the deposit late...due to the administration/rules of the scheme (not the law)...so 3x penalty is due, particularly if OP had written evidence of the schemes stance.

Any holes in this reasoning?

Premier_2

moneysavinmonkey wrote: »

Thanks for posting that *again* Premier!!

I think maybe you have missed my point. I'm in agreement with you that the law SAYS that the 3x penalty doesn't apply in the case of >14 days registration. (literal/purposive interpretation is then up to the individual judge)

BUT as the law says:




In the case of becky_rtw & the OP their deposit is not being held in accordance with the authorised scheme - as confirmed by the TDS that they will not get involved in any dispute.

So at least in the case of 1 of the schemes it is not possible to validly protect the deposit late...due to the administration/rules of the scheme (not the law)...so 3x penalty is due, particularly if OP had written evidence of the schemes stance.

Any holes in this reasoning?

If the LL is holding the deposit at the time of the court hearing, such deposit not being protected by a TDS, then yes

(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.

moneysavinmonkey

ah yes - final get out clause remaining to the landlord then is to pay back the whole deposit before the court hearing. Still a good outcome for the tenant!

Thanks Premier - i know you think that I'm just arguing with you for the sake of it, but I think that we have helped clear up the situation a little!! At one point I did think I would need to make a 3x claim so it was useful to rehearse against the defendant position... it turned out my deposit was protected (I tracked it down myself) although I have still not been given the required information so no Section 21 for me (until they give me the information anyway!)

moneysavinmonkey

Premier wrote: »

What's there to comment on?


But I'm not going to argue with you. I have posted the law as written, and a link to a company that specialises in property law, maintained by Gary Webber, a practising barrister for 22 years specialising in property law. .

by the way premier... that link says that Gary Webber was a practising barrister but is now deputy district judge (ie the kind that sits in county court)!! So it's possible he would decide a 3x deposit case - just though you might like to add this to your byline next time you post this same information! (although he didn't write the bit you quote, someone in the same chambers as him did)