Advice please: should I sue my landlord? (deposit dispute)

Premier_2

Aurore wrote: »

Thanks for all your comments!
But can he do this protection retrospectively? I already left the flat!
What happens if I start the claim and before the hearing, he reimburses me all the deposit ? Does that cancel my claim? Does this mean I have to bear all the legal fees?
Is it fair to say that whatever happens (even if he reimburses me the deposit before the hearing), he did not comply with the deposit protection law? and I have a fair chance of winning the case for 3 times the deposit?
Thanks!

Surely you are not seeking a remedy of getting the deposit protected, rather to have it returned to you now that the tenancy is over.

If the LL returns the deposit you have no case.

As I understand it, the LL has already returned the deposit to you (less allowable costs for dilapidations) so I'm unsure what remedy you really want here.

Could I suggest that the remedy you really want is to recover the amount of money that has been deducted from the deposit? Was the amount fair? If not, that should be the basis of your claim. Get some independent legal advice first!

Planner

Premier wrote: »

Surely you are not seeking a remedy of getting the deposit protected, rather to have it returned to you now that the tenancy is over.

If the LL returns the deposit you have no case.

As I understand it, the LL has already returned the deposit to you (less allowable costs for dilapidations) so I'm unsure what remedy you really want here.

Could I suggest that the remedy you really want is to recover the amount of money that has been deducted from the deposit? Was the amount fair? If not, that should be the basis of your claim. Get some independent legal advice first!

Then this negates the whole point of the TDS scheme. If I was a landlord, I never need protect the deposit as long as I return some of it (25%?) at the end of the tenancy. I would then be safe in the knowledge that all that my former tenant can chase me for is the other 75%?.

This is definatley a TDS non-compliance claim, and the O/P is entitled to the x3 compensation. The O/P will need to ring the three TDS schemes to see if it is possible for the landlord to protect an equal sum to the original deposit that has been taken and subsequently returned.

The remedy sought in this case is return of the full deposit and the x3 compensation.

Premier_2

Planner wrote: »

Then this negates the whole point of the TDS scheme. If I was a landlord, I never need protect the deposit as long as I return some of it (25%?) at the end of the tenancy. I would then be safe in the knowledge that all that my former tenant can chase me for is the other 75%?.

This is definatley a TDS non-compliance claim, and the O/P is entitled to the x3 compensation. The O/P will need to ring the three TDS schemes to see if it is possible for the landlord to protect an equal sum to the original deposit that has been taken and subsequently returned.

The remedy sought in this case is return of the full deposit and the x3 compensation.

Not at all. The TDS was created to ensure deposits are protected so that it is easier to recover the deposit at the end of the tenancy. The rules of the TDS require appropriate information to be given to the tenant within 14 days. This would allow the deposit to be protected (or returned) whilst the tenancy was still in place. Now the tenancy is ended without the deposit being protected, the TDS offers little support - it wasn't designed to.

It's now back to the old method of making a claim against the LL for the amount of deposit that the T believes the LL has unreasonably withheld. The judge will decide the outcome based on the evidence the claimant has to support the claim and the evidence the LL has to defend the claim (if necessary)

The T is not entitled to 3x the deposit as this is only compensation for holding and not protecting a deposit. The deposit is not being held - it has by the admission of the OP been returned less the costs for dilapidations which have been fully itemised.

Aurore_2

Thanks, Premier, yes it didn't know what I wanted at the beginning.
I must admit that at the beginning, all I wanted was my deposit back minus the electricity bills. I was more than cooperative with the landlord: no rent arrears, I even advertised the flat on my company board for him...

Now, I feel very cheated and extorted. Even if I ever have 100% of my deposit back, I want him to understand that he couldn't get away with that kind of behaviour with any other tenant.
So, now, I want the 3x compensation also because I understand that I can sue him "independently" (of the deductions - justified or not), sue him for non compliance. Could the unjustified deductions be considered "aggravating circumstances" in the case? what do you think?
Should I write all the details about these deductions dispute in my 208 form as aggravating circumnstances?

I would tend to agree with Planner that the DP scheme was put in place so that there is no risk of this kind of cheating happening. Isn't it too easy for landlord just to protect the deposit restrospectively?... even if there is no tenancy agreement in place, just to avoid the claim? What is there now to protect if there is no tenancy? The protection can not be valid if there is nothing to protect!

I have just checked with all 3 schemes, there was no protection! They all confirmed to me that in all situations, the protection should have been done within 14 days. And all told me to seek legal advice.

Do you have experience of that type of legal action? Do you think my case is straightforward? Do I need a solicitor? Do you know the cost of the solicitor?
Thanks!

Planner

Premier wrote: »

Not at all. The TDS was created to ensure deposits are protected so that it is easier to recover the deposit at the end of the tenancy. The rules of the TDS require appropriate information to be given to the tenant within 14 days. This would allow the deposit to be protected (or returned) whilst the tenancy was still in place. Now the tenancy is ended without the deposit being protected, the TDS offers little support - it wasn't designed to.

It's now back to the old method of making a claim against the LL for the amount of deposit that the T believes the LL has unreasonably withheld. The judge will decide the outcome based on the evidence the claimant has to support the claim and the evidence the LL has to defend the claim (if necessary)

The T is not entitled to 3x the deposit as this is only compensation for holding and not protecting a deposit. The deposit is not being held - it has by the admission of the OP been returned less the costs for dilapidations which have been fully itemised.

Correct. The tenancy deposit scheme was created to ensure deposits are protected, to hasten their recovery at the end of a tenancy and to ensure landlords dont withold them unfairly.

The fact that the tennacy has ended makes little difference (unless you have ecvidence to the contary). The law says that a) deposit must be protected b) the prescribed information must be sent. This isnt the case here, so it is a clear TDS non-complaince claim. The fact that the deposit has been returned, also makes no difference. None protection of deposits and none supplying of prescribed information is an absolute offence for which there is no defence.

If the O/P just want the remaining deposit then a 'traditional' N1 claim is in order. If they want the deposit + the x3 compensation then a N208 claim is required. I think the fact that the deposit has been returned limits the Landlords 'right' to retrospectivley protect it (check with the TDS schemes), and definatley doesnt limit the O/P right to claim.

Premier_2

Fight your own battles, let others fight theirs.

You can't sue someone for damages on the supposition that they may try and make the same mistake that they have made with you.

As you say you "feel very cheated and extorted". By that I believe you feel the deductions made were unreasonable. If you can convince the judge of that you will get judgement for them to be returned so the LL will not have 'got away with it'.

Don't let the idea of possibly getting 3x the original deposit back as well cloud your judgement here. I don't think it applies and even if it did, as already explained earlier in this thread it is very easy to avoid. The compensation was not intended to offer Tenants extra bunce or penalise LLs for making a mistake, but to force LL to protect a deposit during a tenancy. If the threat was not there, a LL could simply wait until a court ordered a deposit to be protected. The whole idea of the TDS was to restrict the amount of court actions due to some LL not returning deposits art the end of tenancies, not to bring more before a court becuse a LL failed to protect the deposit in the first instance.

Remember, even if the judge awards you judgement, you might still not get any money back - see the cases against Tariq Zaman as an example.
http://www.bbc.co.uk/blogs/watchdog/2008/12/providence_properties_update.html

Premier_2

Planner wrote: »

...The fact that the deposit has been returned, also makes no difference. ...

Yes it does.

The remedy being sought is to protect or return the deposit. The law allows for either at the discretion of the court. e.g. what's the point of protecting a deposit if the tenancy is already ended?

For clarification, here is the relevent satute:

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

In this case it could be argued that the LL has complied not only before the hearing, but before the claim!

The dispute should therefore be about the reasonableness or otherwise of the itemised deductions.

Planner

There are lots of TDS cases out there Aurore where the tenancy has ended and the former tenant successfully sued for the x3 compensation (im sure there are also ones out there where the tenant hasnt been successful).

You are correct, your landlord will never learn if he isnt slapped for doing wrong. If you are happy to be the one doing the slapping (with a possible reward of x3 for doing so), then what is there to lose?

Primer, from the Act above (a) would apply, as the deposit hasnt been returned in full.

As previously stated, it will be down for the O/P to find out if it is now possible for the landlord to retrospectivley protect the deposit now that part of it has been returned.

Premier_2

Planner wrote: »

There are lots of TDS cases out there Aurore where the tenancy has ended and the former tenant successfully sued for the x3 compensation (im sure there are also ones out there where the tenant hasnt been successful).

But are there any where the LL has already protected or returned the deposit?

Planner wrote: »

You are correct, your landlord will never learn if he isnt slapped for doing wrong. If you are happy to be the one doing the slapping (with a possible reward of x3 for doing so), then what is there to lose?

The court costs which may be a lot more than £150 if you try your approach. I believe an allocation questionaire cost of £200 will apply and a hearing fee of (I think) £300 ... and that's before allowable expenses are taken into consideration which can be significant dependant on where the matter is heard.

It might be cheaper to make a purely financial claim. If the OP were to do this purely for the amount deducted this could be £65 (or £60 online), free allocation questionarire and £75 hearing fee if it got that far. Chances are the matter would be resolved via a court mediation service which is free before it got to any hearing.

Planner

Premier wrote: »

But are there any where the LL has already protected or returned the deposit?

The court costs which may be a lot more than £150 if you try your approach. I believe an allocation questionaire cost of £200 will apply and a hearing fee of (I think) £300 ... and that's before allowable expenses are taken into consideration which can be significant dependant on where the matter is heard.

It might be cheaper to make a purely financial claim. If the OP were to do this purely for the amount deducted this could be £65 (or £60 online), free allocation questionarire and £75 hearing fee if it got that far. Chances are the matter would be resolved via a court mediation service which is free before it got to any hearing.

Yes there are claims out there where both have applied, otherwise it would have been pretty pointless in me quoting them!

Its my understanding that N208 claims dont have hearing fees and allocation questionaires, I dont know this for sure, but in the various claims I have been involved in and no of, there has been the £150 fee only.