New deposit laws

chili2001

N79 wrote: »

Selectively quoting the law is exactly how you could sink your otherwise strong case. 214 (3) states

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.

So you should not demand repayment but ask the court to action 214(3). You can, of course, as a seperate argument give reasons why you believe the court should opt for 214(3)a and not 214(3)b but you should be careful that you do not annoy the judge by taking away from the court their right to determine the appropriate outcome. It is important to seperate out the arguement that 214(3) should apply and which section of 214(3) you wish the court to apply.

Secondly, you should never tell the court what it must do but should request that they do something - abrasive language like that does nothing but get the back up of the judge. You should also prepare an argument for a favourable interpretation of "also" if your LL should repay or protect the deposit in advance of your hearing. However, there is no need to include this argument in your outline arguments on the court form.

So what your saying is the judge can basicaly do whatever he likes regardless of the law?

N79

chili2001 wrote: »

So what your saying is the judge can basicaly do whatever he likes regardless of the law?

Not at all. Nor am I trying to discourage you from taking your LL to court.

It is the judges job to uphold the law by interpreting it as he sees fit. However, the world is not black and white but full colour and so judges have to work to try to fit the law to given circumstances.

When a law is ambiguous (such as the ridiculous inclusion of the word also, a problem that could have so easily been remedied by leaving it out) then the judge has to decide what the law intended to be a just outcome. This is where the relative demeanour and moral merits of the LL and T's conduct comes into play. Given that 214 can be interpreted either way you need to give the judge a reason to favour you. Acting reasonable, as you have done, will do this. Your LL's unreasonable actions will count against them etc. In other cases where a T has trashed a property and failed to pay rent while a LL has acted reasonably but failed to protect the deposit (maybe due to an administrative error rather than deliberate ploy) then a judge may decide to run with an interpretation of the law that favours the LL in order to achieve a just outcome (ie LL has already repaid deposit but judge feels it unfair to further penalise the LL). That is why you should prepare by both being reasonable and preparing arguments to deploy against any supposed defence the LL may try.

BitterAndTwisted

Quite honestly Chilli, I completely understand your righteous indignation but taking this to a court other than the small claims, because you do want to see the landlord penalised for three times the deposit is risky: it's not cut and dried that a judge would award it and they have often chosen not to. You've already said that your ex-landlord is minted so he patently has the means to engage solicitors and barristers who will run rings around you in court, and possibly cause delay just to be vexatious and to test your mettle (and your means) for the battle ahead.

I say, take it to the small claims court and ask for the return of your deposit in full and that's it. It would be a much less risky route for you all round.

RabbitMad

chili2001 wrote: »

Cannot use small claim route for this claim.

I didn't particularly like your comment that I had £ signs in my eyes. In fact I thought it was pretty bloody rude considering you know nothing about me or this case

I'm suggesting that you use the small claims route just for the return of your deposit and highlight the fact to the judge that the LL hasn't complied with the legislation. the Judge can then decide whether to apply the act, even though you are not asking for it to be applied.

You only have to use the multi track route if you are asking for your deposit to be protected or returned under the legislation. You are asking for it to be returned as it is yours and the tenancy has ended. (on a side issue another judge bizzarly ruled that the legislation didn't apply as the ex-tenant was no longer a tenant and the legisaltion only applied to tenants.)

As for my rudeness - I wasn't being rude I merely stated that the comment "you deserved the money" made it sound like you had £ signs in your eyes. I was not judging you, but letting you know how that phrase could be interpreted. I am only trying to help here by making suggestions.

I don't like rogue LLs any more than I like bad tenants and if you bring a case I wish you all the best. What I don't want is for you to spend money you can ill afford bringing a case only to find you loose or the LL refuses to pay up .

mlz1413

chili2001 wrote: »

So what your saying is the judge can basicaly do whatever he likes regardless of the law?

N79's post are very good I just wanted to add that judges do have a history of making different judgments on similar cases and that is why case law comes into use.

Tenant deposits are a new regulation and so judges will be making decisions on indiviual cases.

I also agree with the argument that you should allow the judge to judge the case and not tell the judge how it should be.

chili2001

Decided to go down the small claim track should I need to as suggested. Wondered what to actually put on the claim form though? He says we caused damage that was there when we moved in. We of course deny any damage caused by us apart from general wear and tear (rented for 3 and a half years). He didn't suppy us with a moving in inventory (although we asked for one) and refused to answer the door when checking out to look at house with us. Then suddenly we have a phone call saying the house is a mess when it was clean and tidy. Surely this isn't "evidence" but simply our word against his? Shall I also just mention on my claim form that my deposit wasnt protected although of course I won't be claiming the 3x deposit back. Surely this can only strengthen my case?
The other major problem we have is that the house keys weren't returned to him until 18 days after we moved, although we did try several times but as he wouldn't answer the door we couldn't get a reciept for them and didn't want to stick them through the letterbox as he could still say now we hadn't returned them. The bad weather came and we had no post and was cut off from a post office (I live in a small Oxfordshire village). I sent the keys back recorded delivery as soon as I could, but I bet now he will say as we had the keys technically we were still under the terms of the contract and are still liable to pay rent for those extra days. Is there any way around this?

N79

I'm sorry to hear that you have decided not to persue your LL but I understand and respect your reasons. However see below you may need to change your mind.

chili2001 wrote: »

Decided to go down the small claim track should I need to as suggested. Wondered what to actually put on the claim form though? He says we caused damage that was there when we moved in. We of course deny any damage caused by us apart from general wear and tear (rented for 3 and a half years). He didn't suppy us with a moving in inventory (although we asked for one) and refused to answer the door when checking out to look at house with us. Then suddenly we have a phone call saying the house is a mess when it was clean and tidy. Surely this isn't "evidence" but simply our word against his?

You just need to claim for your deposit stating that the deposit was paid and has not been returned despite you fulfilling all your contractual obligations. It is for your LL to prove that any deductions are reasonable and due - not for you to prove that they are not. Therefore you do not need to provide any evidence that the house was left clean and tidy, absence any evidence to the contary from the LL then this is almost certainly what the court will assume anyway.

Shall I also just mention on my claim form that my deposit wasnt protected although of course I won't be claiming the 3x deposit back. Surely this can only strengthen my case?

This is not relevent to your claim and if I was the LL I would have apply to have it removed as irrelevent but I suppose you have nothing to lose by including it. However you must accept that by going down the small claims route you render irrelevent the fact that the deposit was not protected.

The other major problem we have is that the house keys weren't returned to him until 18 days after we moved, although we did try several times but as he wouldn't answer the door we couldn't get a reciept for them and didn't want to stick them through the letterbox as he could still say now we hadn't returned them. The bad weather came and we had no post and was cut off from a post office (I live in a small Oxfordshire village). I sent the keys back recorded delivery as soon as I could, but I bet now he will say as we had the keys technically we were still under the terms of the contract and are still liable to pay rent for those extra days. Is there any way around this?

Unfortunately it is much worse than that. This may well sink your case for the deposit return (and is a very material fact that you should have mentioned earlier). Can you please just confirm if you gave notice to end the tenancy (in which case the LL has a claim for at least 2 months additional rent and maybe 4 months additional rent which would presumably justify him keeping the deposit) or if you left after notice given by your LL (in which case this has no impact on your claim).

chili2001

N79 wrote: »

I'm sorry to hear that you have decided not to persue your LL but I understand and respect your reasons. However see below you may need to change your mind.



You just need to claim for your deposit stating that the deposit was paid and has not been returned despite you fulfilling all your contractual obligations. It is for your LL to prove that any deductions are reasonable and due - not for you to prove that they are not. Therefore you do not need to provide any evidence that the house was left clean and tidy, absence any evidence to the contary from the LL then this is almost certainly what the court will assume anyway.

This is not relevent to your claim and if I was the LL I would have apply to have it removed as irrelevent but I suppose you have nothing to lose by including it. However you must accept that by going down the small claims route you render irrelevent the fact that the deposit was not protected.

Unfortunately it is much worse than that. This may well sink your case for the deposit return (and is a very material fact that you should have mentioned earlier). Can you please just confirm if you gave notice to end the tenancy (in which case the LL has a claim for at least 2 months additional rent and maybe 4 months additional rent which would presumably justify him keeping the deposit) or if you left after notice given by your LL (in which case this has no impact on your claim).

Great. We gave 1 month notice on the 1st Dec and left on 1st Jan. The LL flatly refused to answer the door and therefore couldn't drop off the keys, we tried to return them 3 or 4 times and in the end sent them by recorded post. We would have sent them earlier but there was no way of getting to post office (and no delivers) because of the snow. Couldn't we call it an act of god or something?! :mad:

mlz1413

chili2001 wrote: »

Decided to go down the small claim track should I need to as suggested. Wondered what to actually put on the claim form though? He says we caused damage that was there when we moved in. We of course deny any damage caused by us apart from general wear and tear (rented for 3 and a half years).
He didn't suppy us with a moving in inventory (although we asked for one)
If he doesn't have an inventory signed by both parties then he has no evidence of the state of the house originally. This will work for you and against the LL.
and refused to answer the door when checking out to look at house with us. Did you normally knock on LL's door during the entire rental period?
Did you request prior to leaving to be able to drop the keys off on 1st Jan (a bank holiday day)?
Then suddenly we have a phone call saying the house is a mess when it was clean and tidy. Surely this isn't "evidence" but simply our word against his? have you had anything in writing from LL, any detail of damage and breakdown of costs with quotes? Does LL have your new address?
Shall I also just mention on my claim form that my deposit wasnt protected although of course I won't be claiming the 3x deposit back. Surely this can only strengthen my case? The claim should be for your deposit to be returned and you should stick to that fact.

The other major problem we have is that the house keys weren't returned to him until 18 days after we moved, although we did try several times but as he wouldn't answer the door we couldn't get a reciept for them and didn't want to stick them through the letterbox as he could still say now we hadn't returned them. The bad weather came and we had no post and was cut off from a post office (I live in a small Oxfordshire village). I sent the keys back recorded delivery as soon as I could, but I bet now he will say as we had the keys technically we were still under the terms of the contract and are still liable to pay rent for those extra days. Is there any way around this?

Do you have notes of the dates and times you tried to return keys?
18 days is along time and as you resorted to recorded delivery then why you didn't use it earlier comes to my mind. It also sounds like you didn't have a procedure to follow when checking out. Did you have any communication from the LL after you gave notice?

I would write yourself a diary of events to use if you go to court, but fill in the court claim as the facts only. Which are; non return of deposit after giving one months notice and cleaning house to original standard when taken over.

There is also a phase that has to be used to claim interest, it is on the HMCS website but if you can't find it PM me and I'll type it out for you.

The under lying assumption is that you gave one months notice due to being on a rolling contract, ie outside of the last contract renewal, but could you confirm this?

N79

chili2001 wrote: »

Great. We gave 1 month notice on the 1st Dec and left on 1st Jan. The LL flatly refused to answer the door and therefore couldn't drop off the keys, we tried to return them 3 or 4 times and in the end sent them by recorded post. We would have sent them earlier but there was no way of getting to post office (and no delivers) because of the snow. Couldn't we call it an act of god or something?! :mad:

Yes you can argue that the LL made it impossible to return the keys at the end of the tenancy. Returning of the keys is usually considered to end a tenancy (as it shows that the T has given up occupation) but it is not, in fact, a legal requirement. However, you will need to be ready to argue that your notice was sufficient and that your LL had every reasonable expectation that your occupation was at an end on the 1st of January. If you notice is correct and unambiguous then this should not be a problem.

Since you will be relying on your notice (rather than notice plus return of the keys) this brings us to another question - was your notice valid and correctly served. Can you confirm the start date of the last fixed period that you signed as well as its lenght? (You say you signed it on the 31st August 2008 but you do not state the term - precision here is very important).