Landlord TDS dispute

tbs624

N79 wrote: »

1. I am not disagreeing with anything said in the rest of TBS's post - all reasonable advice.

2. How is a LL asking a T to move our harassmet or unlawful eviction? I do not believe that it would be good to expand the definition of harassment to include asking Ts to leave (if asked once and in a non threatening manner).

'morning N79 I'll clarify my thoughts on the matter.

It's bad enough when LLs miss the deadline at all, but when a tenancy continues all the way to the end of the FT and often into a Periodic as well, there is quite frankly no excuse.
From the Housing Act 2004

215 Sanctions for non-compliance

(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—
(a) the deposit is not being held in accordance with an authorised scheme, or
(b) the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.

(2) If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.
(3) If any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), no section 21 notice may be given in relation to the tenancy until such time as the property in question is returned to the person by whom it was given as a deposit.

(4) In subsection (3) “deposit” has the meaning given by section 213(8).
(5) In this section a “section 21 notice” means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

If a T acting under a S21 notice unlawfully given to him/her by the LL (unlawfully because the LL has failed to comply with the law ) then the LL has done something to make the T believe that they have no option other than to surrender possession.

From the Protection from Eviction Act 1997:

1 Unlawful eviction and harassment of occupier

(1)In this section “residential occupier”, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises.

(2)If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.

So if a T leaves after that S21, unlawfully given, could they be said to have been unlawfully deprived of occupation? If you take a FT you could maybe say that the T knew they had to go at the expiry of the FT anyway, but we know that they don’t have to go then if they haven’t been given notice that repossession will be sought because the Tenancy will by default become periodic.

N79 wrote: »

Rather than asking for every more rediculous extensions to legislation which will be used by "professional Ts" to make life difficult for LLs (defending malicious accusations of harassment and unlawful eviction are expensive, time consuming and both are criminal) we should aim at sorting out what we currently have and make the deposit protection scheme actually work. I find it incredible that only the English and Welsh could be so incompetent as to fail in introducing such protection for Ts and effective enforcement against rogue LLs.

It will be interesting to see whether Scotland can make a better job of it, learning from the problems south of the Border, including the retaliatory evictions, at the earliest possibility, that are brought about by thoseLLs whose Ts who have the “audacity” to insist that the LL does register the deposit.

Improvements to the law in E&W will only come about if Ts who are still experiencing deposit return problems (and decent LLs who loathe the actions of the non-compliant ones) persistently voice their concerns via their MPs, TROs and the Housing Minister.

N79 wrote: »

The three times deposit and no S21 could be a very effective enforcement action - especially as the three times is absolute and can not be set off against Ts arreas so even Ts that trash a house and cause 10 times more damage can still walk away with their money. That is already a heavy enough sanction.

It could be if it was being applied in line with the declared intent of the law's introduction, which currently we know it isn't: differing courts interpretation of the legislative wording is enabling some LLs to "get away" with non-compliance. I absolutely don't condone any T trashing a rented property btw, and “professional Ts” could be thwarted simply by a LL behaving properly from the start and getting the deposit registered.

As I've previously posted in other threads, IMO the biggest incentive for LLs to comply would be simply to say that if you don't scheme register the deposit within that specified time frame then you may not serve a S21 at all for that tenancy. (To be generous to errant and/or "thick" LLs I'd extend the specified period to 21 days;)) You'd only need a few reports in the papers of "poor" LLs who were stuck indefintely with a real PITA tenant and suddenly all those who let property would make sure they were getting those deposits registered.

N79 wrote: »

Sorry, I will now get of my soapbox!

Don't apologise for being up there - we're all on one from time to time, and debate is good

tbs624

Planner wrote: »

Just a quick note on the links that tbs624 has posted, the first one (the NUS one) shouldnt be used as it is inaccurate, claim form N208 and not claim form N1 should be used.

Thanks for your post Planner However, the NUS pack has 32 pages & contains much useful general info for Ts on the issue of tenancy deposit claims.

Other readers of this thread may like to note Tessa Shepperson's comments in her LL Law blog, on the use of N1/N208. (TS is a solicitor who specialises in LL&T Law for those who may not have seen her website or read her books- she also drafts some of the Lawpack documents).

Premier_2

kj616 wrote: »

This is exactly right, yes. The deposit was about £2,500 (don't have exact figure to hand). LL proposes to retian £600 of the deposit, but at present he hasn't retunred any of it....

So is everyone in agreement that my claim should only be for £2,500 (the value of the deposit) ....

Ask the LL for the return of the undisputed £1900 immediately - as you say he only proposes to keep £600 which presumably he can account for, although you have cause to dispute this deduction.
Then your claim (after you have exhausted negotiations and assuming the LL doesn't budge in his position) will be for the disputed £600. If for no other reason, it'll make the court costs lower.

As you say in your OP, you "only just moved out" so I don't think you've really tried to settle this matter between yourselves - something a court will expect you to have done. Court action should be seen as the last resort when all other endeavours have failed, not the first port of call.

Planner

tbs624 wrote: »

Thanks for your post Planner However, the NUS pack has 32 pages & contains much useful general info for Ts on the issue of tenancy deposit claims.

Other readers of this thread may like to note Tessa Shepperson's comments in her LL Law blog, on the use of N1/N208. (TS is a solicitor who specialises in LL&T Law for those who may not have seen her website or read her books- she also drafts some of the Lawpack documents).

Im sure it does, A quick glance through the contents section brought the N1 issue to light though, not a glaring mistake at the time of publication, as at the time which form to use was still up for discussion, but things have obviously moved on since publication of that document so use with caution and ignore the N1 advice section.

In terms of 'Tessa Sheppersons' comments, again times have moved on a little. You should be careful tbs624 about posting such dreadfully outdated links.

kj616

As you say in your OP, you "only just moved out" so I don't think you've really tried to settle this matter between yourselves - something a court will expect you to have done. Court action should be seen as the last resort when all other endeavours have failed, not the first port of call.[/quote]

Thanks for this.

I understand the importance of making every effort to settle amicabley and I'm currently in (written) communication with LL.

I will continue with my efforts to have the depsoit returned, although I feel recourse to the courts is inevitable.

I'm still seeking clarification on exactly which claim form to use though! The court advised to use Part 7. Most other things I've read suggest Part 8 - any ideas anyone??

Has anyone made a claim themselves?

Planner

The court people you spoke to are wrong, you should keep in mind that they are just receptions and 'temps' and have no legal experience, I suspect a couple of GCSEs more and they would have got a better job serving in McDonalds!

The correct form for TDS non-complaince claims is 100% N208 Part 8.

Premier_2

kj616 wrote:

Thanks for this.

I understand the importance of making every effort to settle amicabley and I'm currently in (written) communication with LL. However, my initial response to his claimsm, in which I explained why I felt his planned deductions were unreasonable, was met with an email form him threatening to double the amount he originaly planned to take (for no other obvious reason than I refused to agree with him).

That said, I will continue with my efforts to have the depsoit returned, although I feel recourse to the courts is inevitable.

I'm still seeking clarification on exactly which claim form to use though! The court advised to use Part 7. Most other things I've read suggest Part 8 - any ideas anyone??

Has anyone made a claim themselves?

Have you thought about using a mediation service?
It seems both parties have some issues with each other here and a mediation service may help you come to an amicable resolution.

Premier_2

Planner wrote: »

...The correct form for TDS non-complaince claims is 100% N208 Part 8.

That may be so, but this isn't necessarily a claim about TDS non-compliance. In fact, there is no claim at all at present until the OP decides on what is appropriate to claim, if anything.

Planner

Premier wrote: »

Have you thought about using a mediation service?
It seems both parties have some issues with each other here and a mediation service may help you come to an amicable resolution.

Personally I think this is an unreasonable suggestion. If the deposit had been protected in accordance with the law, the O/P would now be using the particular TDS arbitration service and not paying to use the court arbitration service.

The 'offence' of TDS non-compliance is an absolute one for which there is NO defence.

Premier_2

Planner wrote: »

Personally I think this is an unreasonable suggestion. If the deposit had been protected in accordance with the law, the O/P would now be using the particular TDS arbitration service and not paying to use the court arbitration service.

The 'offence' of TDS non-compliance is an absolute one for which there is NO defence.

I don't agree that this is an unreasonable suggestion at all.

I agree the deposit should have been protected in the first instance, but it wasn't. There's nothing that can be done about that now.

What remedy is the OP seeking? As I understand it, the position now is that the OP wants his deposit returned. There is no reason to pay a court anything to achieve this. It can simply be done between the two parties involved. A mediation service may well help given the stance that has already been portrayed by the OP (including what the OP claims the stance of the LL is) in this thread.