TDS Case Lost !!! - Going to Appeal

prudryden

Out of interest, does anyone know the reasoning for keeping Gas Certs that are no longer valid and have been replaced by a current one? Wouldn't it be similar to an MOT - once you have passed, then the previous years are obsolete? Or like writing a will, a new one makes the older one invalid.

Sort of thinking aloud here.

Premier_2

prudryden wrote: »

Out of interest, does anyone know the reasoning for keeping Gas Certs that are no longer valid and have been replaced by a current one? Wouldn't it be similar to an MOT - once you have passed, then the previous years are obsolete? Or like writing a will, a new one makes the older one invalid.

Sort of thinking aloud here.

I'm not sure, other than it's the law obviously.

I guess the reasoning behind it was so that if an action was brought against a LL for not having a valid CP12 during a period if tenancy, the responsibility would lie upon the LL to prove either it was continuously covered or what period it wasn't covered for.

What I mean is that once a LL is made aware of an impending action, I guess the first thing he'd do is get a valid CP12 - but that doesn't have any details of how long the property was not covered.

Unlike the opinions of some posters here, I believe a Judge would take a very different view of a LL brought before a court because of say a 24 hour gap in cover compared to a gap of up to a year or more. Yes legally it's a crime and yes legally the LL should ensure the property is continually covered whilst tenanted and yes the tenant does deserve this, but sometimes this doesn't happen despite the best endeavours of a LL. If the LL cannot produce the previous years CP12, I guess it would be assumed he didn't have one for the whole of that period.

Unlike an MOT where the driver deliberately takes a vehicle onto the road without a valid MOT, perhaps it's seem more like a SORN, which could lapse by inaction rather than the offender actively doing something to cause the offence (if you see what I mean)

prudryden

I like the SORN analogy. That makes sense about the continuing coverage - thus the two years is needed in order to show the dates of the inspection. Thanks for that. Somethimes my thinking goes so lateral, it forgets about going in a straight line.

Bungarm2001

"I guess the reasoning behind it was so that if an action was brought against a LL for not having a valid CP12 during a period if tenancy, the responsibility would lie upon the LL to prove either it was continuously covered or what period it wasn't covered for."

Thats how I read it.

Bungarm2001

I guess many of us on here are never going to agree about the TDS and how the rules are being interpreted by the LL's, tenants and judges.

While I feel quite sorry that the tenant lost his case, I also feel for the LL who admittedly should know ALL the rules and regs associated with the letting business inside out, but sometimes, for what ever reason, doesn't.

I've posted this before on here; sometimes a very new LL or an 'accidental' one will not have done his research thoroughly, and will miss vital legislation, particulary something as recent as this one. LL's are after all human and prone to make mistakes, just like anyone else. No doubt someone will argue with me on that. On the other hand, there will always be LL's who will try to get away with it no matter what, or who think that certain laws just don't apply to them, or are not important.

Anyone new to this forum and reading posts concerning LL and tenant law/relationships would be convinced that all LL's are sleazy money-grabbing millionares ducking and diving the law at the expense of his tenant's comfort and safety. This plainly is not the case, nor is it the case that all tenants are totally blameless and innocent where deposit disputes come up. We would all do well to remember that we only ever hear one side of the story on here.

My personal view of this badly and hastily written piece of junk (TDS regs) is that in some cases, it has caused far more problems than it was designed to cure, and it will remain open to various interpretations until it is finally rewritten. (Hopefully soon)

Meanwhile, we are going to get more tenants jumping on the bandwagon rightly or wrongly thinking they are in for a windfall (3 x deposit awarded) and more LL's thinking whats the point in taking a deposit, and judges basing their decisions on how to interpret words such as 'is' and 'was'. Utter madnes to my mind.

When did this all get so complicated? What happened to the tenant/LL relationship where all it took was a phone call to settle something? or a note put in the post? or even a bi-monthly inspection? I know renting out properties is a business, but it is fundamentally a business that involves people BUT it seems in this industry we have lost a basic human function, i.e. actually talking to each other.

tbs624

Bungarm2001 wrote: »

......sometimes a very new LL or an 'accidental' one will not have done his research thoroughly, and will miss vital legislation, particulary something as recent as this one. LL's are after all human and prone to make mistakes, just like anyone else. No doubt someone will argue with me on that.

Of course I will Bungarm - let's bear in mind that old principle that ignorance of the law is no excuse/defence. If LLs don't, for example, declare their rentals income for tax purposes then the good old HMRC aren't going to benignly say "that's ok, you've just made a mistake - we all do" are they? They'll slap you with a sanction/fine. If you employ someone as part of your rental business and fail to honour employment regs, saying that you didn't know that you had to do x, or y won't get you off the hook.

I am stunned by the number of people who let out property but who fail to do even the most minimal research ( also by the number of both Lls and tenants who sign things without reading or understanding them but that's a separate issue ). You'd have to be living as a hermit to not have heard about tenancy deposit registration within the past 18 months.

Bungarm2001 wrote: »

On the other hand, there will always be LL's who will try to get away with it no matter what, or who think that certain laws just don't apply to them, or are not important.

....very much so and it is because of these very charmers that the registration system has come into force

Bungarm2001 wrote: »

Anyone new to this forum and reading posts concerning LL and tenant law/relationships would be convinced that all LL's are sleazy money-grabbing millionares ducking and diving the law at the expense of his tenant's comfort and safety. This plainly is not the case, nor is it the case that all tenants are totally blameless and innocent where deposit disputes come up. We would all do well to remember that we only ever hear one side of the story on here.

Hopefully the fact that there are a good number of decent LLs posting and giving plenty of support to tenants by answering their queries on here will go some way towards redressing those sort of views. We have of course had some cases where it's LLs posting for help, those who have been on the receiving end of non-paying tenants, difficult lodgers, house trashers etc. Maybe we should have a :jcouple of threads entitled " my LL/Tenant is fantastic because......".;).

Bungarm2001 wrote: »

Meanwhile, we are going to get more tenants jumping on the bandwagon rightly or wrongly thinking they are in for a windfall (3 x deposit awarded)

One of the problems IMO is that because the law has had the effect of making the tenant responsible for "policing" the compliance (or not) of their LL, then the legislation needed to have some way, not only of penalising the errant LL, but making it worth the tenant's while to do something about the situation.

I still think the best option would have been that the deposit gets registered immediately (if tenancy current) or refunded in full immediately (if tenant has moved out) but that no S21 may be served at all for the duration of any tenancy where the LL hasn't complied within that initial 14 days.

Bungarm2001 wrote: »

When did this all get so complicated? ......we have lost a basic human function, i.e. actually talking to each other.

As I say, it's the cr*p LLs that are to blame, just as on the other side, LLs take deposits because some tenants do fail to comply with their obligations too.

AFIAA the main complaints that tenants voice are around deposit issues, repairs issues & illegal evictions, and with LLs it's rent arrears, damage to property etc.

Each time any group anywhere fails to adequately self-regulate then the govt will wade in. It will happen too with those greedy LAs and their spurious admin fees & their lack of training.

shotton123

Can I ask did you appeal and did you win, because I am at that stage now, but with have moved on alot since then and not for the good of the tenant

Prancer wrote: »

At our court hearing today we lost our TDS case.

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".

He did though award us costs as he said it was the landlord's fault the case had been brought.

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.

We are definitely going to appeal, does anyone know of any appeals so far ?

N79

shotton123 wrote: »

Can I ask did you appeal and did you win, because I am at that stage now, but with have moved on alot since then and not for the good of the tenant

Clearly not, unless their name is Draycott, Fletcher or Tiensia.