Housing Act 2004 - Tenancy Deposit Scheme

AWT19

Hi there, I would appreciate some views / feedback on my case.

I'm in the process of taking my former landlord to court.

The situation is this:

1) The landlord has not protected our deposit.
2) We had difficulty getting our deposit back and it was only after a Letter Before Action that we received it back, a significant period after terminating the tenancy.
3) The landlord deducted a small amount (5%) that we dispute.
4) We plan to take him to court to recover the small amount and therefore have the judge order the 3x fine as penalty.

My question is:

1) Is there a dependence on S14(3) for S14(4) to be ordered?

If the landlord pays the small amount back, the judge cannot order [S214(3)(a) that he must pay the deposit back in full] because he has already returned it in full. Is he still able to order [S214(4) the 3x penalty]?

Is there any case studies or precidence around this?

2) Am I right to assume that we dont even need to provide a reason to dispute the deduction because under the Housing Act 2004, if the deposit is not protected, it must be paid back in full to the tenant?

Many thanks for your help!

clutton_2

i would go to https://www.landlordzone.co.uk and ask this exact question - there are both barristers and solicitors specialists in LL&T legislation post on there on a daily basis

Sillalewies

AWT19 wrote: »

Hi there, I would appreciate some views / feedback on my case.

I'm in the process of taking my former landlord to court.

The situation is this:

1) The landlord has not protected our deposit.
2) We had difficulty getting our deposit back and it was only after a Letter Before Action that we received it back, a significant period after terminating the tenancy.
3) The landlord deducted a small amount (5%) that we dispute.
4) We plan to take him to court to recover the small amount and therefore have the judge order the 3x fine as penalty.

My question is:

1) Is there a dependence on S14(3) for S14(4) to be ordered?

If the landlord pays the small amount back, the judge cannot order [S214(3)(a) that he must pay the deposit back in full] because he has already returned it in full. Is he still able to order [S214(4) the 3x penalty]?

Is there any case studies or precidence around this?

2) Am I right to assume that we dont even need to provide a reason to dispute the deduction because under the Housing Act 2004, if the deposit is not protected, it must be paid back in full to the tenant?

Many thanks for your help!

Hay AWT19

I was hoping maybe you would be able to give me advise on my situastion. we moved out of our property still paying for it as our AST only expires in May but the landlord changed the locks excluding us from the property and now the tenancy is now not valid as they did not even notify us.

I have checked with all 3 deposit scheme companies and our deposit has not been secured by any. what should I do now to take this further as to get our depost back.

thanks

AWT19

Sillalewies wrote: »

Hay AWT19

I was hoping maybe you would be able to give me advise on my situastion.
thanks

Try contacting Shelter, http://england.shelter.org.uk/, 0808 800 4444.
I found they were extremely knowledgable and helpful.

N79

AWT19 wrote: »

Hi there, I would appreciate some views / feedback on my case.

I'm in the process of taking my former landlord to court.

The situation is this:

1) The landlord has not protected our deposit.
2) We had difficulty getting our deposit back and it was only after a Letter Before Action that we received it back, a significant period after terminating the tenancy.
3) The landlord deducted a small amount (5%) that we dispute.
4) We plan to take him to court to recover the small amount and therefore have the judge order the 3x fine as penalty.

My question is:

1) Is there a dependence on S14(3) for S14(4) to be ordered?

If the landlord pays the small amount back, the judge cannot order [S214(3)(a) that he must pay the deposit back in full] because he has already returned it in full. Is he still able to order [S214(4) the 3x penalty]?

Is there any case studies or precidence around this?

2) Am I right to assume that we dont even need to provide a reason to dispute the deduction because under the Housing Act 2004, if the deposit is not protected, it must be paid back in full to the tenant?

Many thanks for your help!

All the below is my opinion only etc.

OK - Q1 there have been no higher court decisions on this. There have been decisions on both sides in the lower courts with approx 2/3s of cases that I am aware of favouring the independent interpretation and 1/3 favouroring tying the two together (ie, refusing to award the penalty becuase no order under s214(3) can be made). It will depend on the judge on the day and the relative persuasiveness of your and your LL's submissions. However, in your case since the LL still retains 5% of the deposit the judge can make an award under 214(3) unless the LL returns the remaining 5% before the court case. If the LL does this then in my view you will need the "independent" interpretation to get the 3x deposit bonus.

Q2. No because 214(3) allows the judge to either return the deposit in full or protect the deposit. If the judge chooses to protect the remainder of the deposit then you will need to go through the deposit protection scheme arbitration to get the deposit returned. It is worth noting though that the LL must prove deductions - you do not have to disprove them.

Good luck. Obviously you should win but for parliament's rubbish drafting. Let us know how you get on with your case.

AWT19

N79 wrote: »

All the below is my opinion only etc.

Thanks alot N79. Thats pretty much what I was thinking, and what I was looking for. Fingers crossed that he doesnt return the remaining amount. Its basically for the final inventory, which is written in the contract, so he should try and dispute this, and try and keep it. We hope that he does.

Am I right to assume that we dont actually need a reason to dispute it though? The fact being that we havent been given the recourse to dispute this entitles us to the full deposit refund and therefore the penalty?

N79

AWT19 wrote: »

Thanks alot N79. Thats pretty much what I was thinking, and what I was looking for. Fingers crossed that he doesnt return the remaining amount. Its basically for the final inventory, which is written in the contract, so he should try and dispute this, and try and keep it. We hope that he does.

Am I right to assume that we dont actually need a reason to dispute it though? The fact being that we havent been given the recourse to dispute this entitles us to the full deposit refund and therefore the penalty?

You are entitled to have either the remaining deposit refunded or the remaining deposit protected at the courts discretion. You can, of course, submit a preference and a reason.

I would suggest that either the judge will feel you have a claim on the remaining deposit, in which case they will return it to you and if they feel the LL has a claim then they will return it to you and make an order that you pay it to the LL (if there is an appropriate counter claim being heard as well) but your milage may well vary.

Edited

Sorry, that is still not very clear. You do not need to have a reason to ask the courts intervention with regard to the remaining deposit but remember you are not asking the court to return the 5% of the deposit, you are asking it to apply the deposit protection requirements. The court may return the deposit to you but equally, given that it is in dispute, they may well feel that it should be protected. It is even possible that the court will decide to completely sort out both the matter of non protection and the dispute (especially if the LL puts in a counter claim for damages).

Even if the LL puts in a claim for damages then the 3x fine is absolute - the court can not set them off against one another. One entirely possible outcome is for both of you to get an order to pay an amount to each other if the LL can convince the court that further deductions are warranted.

AWT19

Ok, so I see it like this. If he doesnt pay us the remaining deposit, we go to court and the judge can rule either the money must be returned, or protected and then put through arbitration, depending on his view and our preference. Either way he must award the 3x fine.

If the LL pays the money back, then we're 2/3rds chance of winning based on the requirement for an 'independent' ruling on 214(3) and 214(4).

Sound about right?

Piece of cake :-)

N79

Yup - although I should stress that it is 2/3rds of the cases that I am personally aware of (18 in total).

Let us know how you get on.

AWT19

I can see if the judge ruling in favour of the LL if the deposit is returned immediately at the end of the tenancy... otherwise I guess it should go to the T. Will see. Will keep you posted either way. Currently have my solicitor writing a LBA requesting the 3x so will see what happens.

tbs624

Sillalewies wrote: »

Hay AWT19

I was hoping maybe you would be able to give me advise on my situastion. we moved out of our property still paying for it as our AST only expires in May but the landlord changed the locks excluding us from the property and now the tenancy is now not valid as they did not even notify us.

I have checked with all 3 deposit scheme companies and our deposit has not been secured by any. what should I do now to take this further as to get our depost back.

thanks

Welcome as a newbie poster

As ATW19 says, Shelter can advise you, but you can also start a new thread of your own (button top left of page on main HBR&S page). It makes it harder to follow the original thread, and any responses to your own query, if you "piggy back"