TDS - Non Compliance Case

AWT19

Hi there.

Quick Summary of this claim for non-compliance of Tenancy Deposit Scheme:

- Moved out in Jan
- Deposit Unprotected
- LL very difficult to get deposit back from
- Sent LBA, almost all of deposit returned after 1 month (£100 spurious deduction)
- Lodged N208 claim form for case against non-compliance of TDS.
- Received defence in mail with counterclaim
- Defence denies the landlord is the 'landlord'
- Defence admits to non-compliance
- Defence paid back remaining deposit as part of defence (after 3 months) so denies penalty applies
- Counterclaim to damages to property
- LL wont allow us a copy of the final inventory to dispute counterclaim (which we completed when we moved out - in was 100% fine).

Questions I would like answers, if possible, to:

1) Given the above, are we able to still push for the 3x penalty?

2) Given the LL owns the property (from Land Registry Title) Managed the property, received rent and admits to letting the property to us in the defence, will this defend it for him, given that the TA was with a company the LL is trading as?

3) Can we get the defence struken off? Neither of the points the defence has made dispute the non-compliance which is what this case is about.

4) Given he wont allow us a copy of the inventory, surely this must go against him? And we can ask for the counterclaim to be struken off also?

All thoughts welcome / appreciated.

Thanks!

laffer

Presumably this is before the Courts then (or is it before the arbitration scheme). You should look at whether any order for discovery has been made. Discovery should enable you access to the documents you need. Are they being represented?

princeofpounds

1) the legislation is not entirely clear here. Many lower courts are letting landlords off without penalty for retroactive compliance. Makes the whole thing a bit of a nonsense really but that's how it is. I am not aware of any precedent-setting higher court decisions but there might be one by now.

2) it sound like a flimsy defence given the facts you have presented, and I'm sure you will present them in court. Especially if the 'company' is a sole trader as opposed to ltd. Is his 'company' registered at companies house?

3,4) you can't get things 'struck off'. He will get the chance to put it to court. If he is talking rubbish the judge will probably dismiss it quickly. Make sure you defend his claim

clutton_2

if the LL is including the inventory as part of his case papers which he sends to court, then he is duty bound to send you a copy of all the docs he sends to the court.

if he does not - then he cannot suddenly produce the inventory in court on the day of the case

if he is not the LL - why is he pleading guilty to non-compliance ?> he can't have it both ways

you can write to the court and ask the court to "strike out " the case - but they dont have to. I did just that and was successful last year, but only because the other side refused to produce evidence requested by the court.

tbs624

"- Defence paid back remaining deposit as part of defence (after 3 months) so denies penalty applies"
My view is that the LL, having admitted non-compliance with the tenancy deposit regs, would have to have either paid your deposit back *in full* or scheme- registered it prior to any court hearing to avoid being ordered to cough up for a penalty payment.

The LL cannot withhold the inventory from you if it is forming part of his case for a claim against you for damage to the property. Have you requested a copy of it in writing and, if you have, have you kept a copy of your letter?

The LL is ultimately responsible for the registering of a tenant's deposit so it should be irrelevant whether it is his "trading as" company name that appears on the tenancy agreement.

AWT19

laffer wrote: »

Presumably this is before the Courts then (or is it before the arbitration scheme). You should look at whether any order for discovery has been made. Discovery should enable you access to the documents you need. Are they being represented?

Sorry... not legally gifted here, Whats an order for Discovery? do I need to arrange for it?

Surely if I havent received the final inventory as part of the defence, they cant use it in court?

Thanks!

AWT19

princeofpounds wrote: »

1) the legislation is not entirely clear here. Many lower courts are letting landlords off without penalty for retroactive compliance. Makes the whole thing a bit of a nonsense really but that's how it is. I am not aware of any precedent-setting higher court decisions but there might be one by now.

2) it sound like a flimsy defence given the facts you have presented, and I'm sure you will present them in court. Especially if the 'company' is a sole trader as opposed to ltd. Is his 'company' registered at companies house?

3,4) you can't get things 'struck off'. He will get the chance to put it to court. If he is talking rubbish the judge will probably dismiss it quickly. Make sure you defend his claim

The thing is, the deposit was never protected, only returned. Will this make my case stronger? And his company isnt registered at companies house.

We have asked for it to be struck off. Will let you know how we get on.

AWT19

clutton wrote: »

if the LL is including the inventory as part of his case papers which he sends to court, then he is duty bound to send you a copy of all the docs he sends to the court.

if he does not - then he cannot suddenly produce the inventory in court on the day of the case

if he is not the LL - why is he pleading guilty to non-compliance ?> he can't have it both ways

you can write to the court and ask the court to "strike out " the case - but they dont have to. I did just that and was successful last year, but only because the other side refused to produce evidence requested by the court.

I havent seen a copy of the inventory, so hopefully he cant use it in court. thanks for the advice, I think the LL is saying he isnt the LL now, so none of this applies. Futile!

princeofpounds

Will this make my case stronger?

Possibly. Visit landlordzone forums, I think they have a thread that's been monitoring case outcomes.

his company isnt registered at companies house

Good. That *probably* means that he is a sole trader trading under that company name. So he is one and the same legal entity as the company. The only difference would be if he was some form of foreign corporation or odd kind of partnership or trust, but I suspect that's v unlikely for your average duff landlord.

AWT19

tbs624 wrote: »

"- Defence paid back remaining deposit as part of defence (after 3 months) so denies penalty applies"
My view is that the LL, having admitted non-compliance with the tenancy deposit regs, would have to have either paid your deposit back *in full* or scheme- registered it prior to any court hearing to avoid being ordered to cough up for a penalty payment.

The LL cannot withhold the inventory from you if it is forming part of his case for a claim against you for damage to the property. Have you requested a copy of it in writing and, if you have, have you kept a copy of your letter?

The LL is ultimately responsible for the registering of a tenant's deposit so it should be irrelevant whether it is his "trading as" company name that appears on the tenancy agreement.

TBS, very helpful as always. He has paid it back in full, but only after the claim was made. What did you mean by *in full*? This was also 3 months after we moved out, and clearly only to defeat this.

I have requested a copy of the inventory on numerous occasions, even by registered post, but he still wont budge. Hopefully because he hasnt included the inventory with his counterclaim in the defence, he cant use it in court, so will have a tough time trying to say we damaged the place (which we didnt).

I'm just concerned that because he has now returned the deposit in full, (after the claim, after much difficulty) that will get off scot free. Surely the TDS is designed to prevent this kind of behaviour?? A tenant shouldnt have to wait 3 months and have to file a claim first!

AWT19

princeofpounds wrote: »

Possibly. Visit landlordzone forums, I think they have a thread that's been monitoring case outcomes.
QUOTE]

I couldnt find it?