Difficulties in getting deposit back!!

palasmy

Ok Gents,

I have sent my letter before action today to the estate agent and landlord's address (where we were tenants before). Below is the version of my letter, please let me know what should I do next.. the letter has reached the agent's office today.

This is a letter that I copied from one of tbs's posts..

Dear LL

Tenancy of XXXXX, from .... to.............(dates)

We paid a tenancy deposit of £xxx to you/ Susan/Jim at xxxxxx Letting Agency on ....(date).

Since we moved out on 18 April we have tried without success to get repayment of our deposit from you and/or written confirmation of why our deposit is being withheld from us.

Under the Housing Act 2004 S214 all LLs of properties in England and Wales are required to scheme register their tenants' deposits and provide the tenant with certain prescribed information. We received no infromation from you and since our tenancy ended we have had confirmation from all 3 Tenancy Deposit Schemes that our deposit was not in fact registered.

We would have preferred to have been able to settle this matter amicably but unless we receive the return of our deposit in full within 3 working days we will pursue a claim at the County Court for non-registration of our deposit, without further notice to you.

Please note that our claim will be for the full return of our deposit and will include a sum for interest, plus our court costs and the penalty payment of three times the deposit amount payable by you.


Thanks

N79

Its a good letter - lets keep our fingers crossed.

Get ready to fill out N208 on Thursday morning.

palasmy

Hello N79, I had mentioned three daysin my letter which effectively started on thursday, so technically should end on Monday? Should there be no response by then, should I go to the court on tuesday to submit my claim form? where can I get the right form, should I make an appoinment? Please can someone let me know the procedure, I'm starting to get nervous and worried a bit....if happens would this procedure in the court demand more of my time?

thanks

clutton_2

your local court will have a whole set of leaflets expolaining the process of suing someone in the small claims court.. they are very self-explanatory - they may be online also

N79

palasmy wrote: »

Hello N79, I had mentioned three daysin my letter which effectively started on thursday, so technically should end on Monday? Should there be no response by then, should I go to the court on tuesday to submit my claim form? where can I get the right form, should I make an appoinment? Please can someone let me know the procedure, I'm starting to get nervous and worried a bit....if happens would this procedure in the court demand more of my time?

thanks

22nd - Thursday.

The legal system allows 2 days for the delivery of 1st class mail so assume arrives Saturday.

LL is a business so first day they receive your letter is Monday.

3 day deadline expires on Wednesday.

Therefore you file your case in court on Thursday if you have heard nothing. Since you have allowed your LL three days to respond the court will be unimpressed if you don't stick to this (and for a 3x claim you definately need the courts goodwill).

tbs624

Guidance here

Form here

For suggestions on wording your claim ( no point reinventing the wheel;)) see here and here . Planner also posts on this board.

palasmy

Thanks TBS for the links...just wondered if the LA/LL had any grounds for defending saying that they had protected the deposit for a short period at the start of the initial tenancy? Can they say they were not aware of the unsubscription from the scheme? even if it was the case is it not their responsibility to make sure the deposit was transfered to the scheme again when the second agreement was put to renew the tenancy? I was never given any information about the deposit protection when the second agreement was given to me, which helps my claim I guess?

Thanks

N79

palasmy wrote: »

Thanks TBS for the links...just wondered if the LA/LL had any grounds for defending saying that they had protected the deposit for a short period at the start of the initial tenancy? Can they say they were not aware of the unsubscription from the scheme? even if it was the case is it not their responsibility to make sure the deposit was transfered to the scheme again when the second agreement was put to renew the tenancy? I was never given any information about the deposit protection when the second agreement was given to me, which helps my claim I guess?

Thanks

Well I'm not TBS but here goes.

This can not be a defence for both the LA and the LL but it could be a defence for one of them - most probably the LL.

If the LA was responsible for protecting the deposit then the LA's contact details will have been used by the protection service to inform the agent that the deposit was being unprotected. If the agent did not inform the LL that this had happened then, based on the ruling in Draycott v Hannells the LL could claim in their defence that they did not handle the deposit and were unaware of the problems. Only a court can rule on this point but, following the above case, I would give it a reasonable chance of success.

Likewise, if the LL's contact details were used and the LL did not inform the LA then I am almost certain that the LA will not carry an liability for the 3x.

Of course, this supposes that the LA and the LL did not communicate.

Neither situation will impact on your claim for the return of the deposit although it does show the importance of naming both the LL and the LA in your claim.

palasmy

N79, in our case, it was the LA who was dealing with the deposit and it is their particulars that was mentioned in the original TDS certificate. So I guess it makes the point clear that LA will be responsible, does it mean that there is chance for the LA to be liable for a 3x penalty and not the LL? if I pursue for a claim of that kind...I will certainly mention both of them in my claim form. Personally I feel that although the LA directly dealt with us, it is also the responsibility of the LL to make sure everything was in order, isn't it?

Anyway, to update I have not received any information up until today, so it looks like I may have to go through the court procedure! It is a bit of struggle for me to decide whether or not I will succeed if I go for the 3x penalty approach..Also, in my claim should I deduct the last 18 days of rent that I owe the LL? we still have two days, lets wait and see


Thanks all

N79

palasmy wrote: »

N79, in our case, it was the LA who was dealing with the deposit and it is their particulars that was mentioned in the original TDS certificate. So I guess it makes the point clear that LA will be responsible, does it mean that there is chance for the LA to be liable for a 3x penalty and not the LL? if I pursue for a claim of that kind...I will certainly mention both of them in my claim form. Personally I feel that although the LA directly dealt with us, it is also the responsibility of the LL to make sure everything was in order, isn't it?

Certainly we all thought that it was solely the responsibility of the LL but the High Court disagreed - holding that it was not just to "fine" someone for something that they had no control over. Indeed, the exact words were (my bolding)

"No such limitation would be appropriate in s.214(4). Unlike s. 214(3), which is an order for restitution made against the holder of the deposit, s.214(4) is penal, as Mr Browne points out. There is no reason why the penalty should be imposed on the person who, at the time the court order is made, happens to be holding the deposit. The penalty should be imposed on a person who is responsible for the failure to comply with s.213. In the present case that is the Defendant, and not the actual landlord (assuming, at this stage, that there has been a non-compliance which attracts an order under s.214(4)). "

While this ruling provides a defence for LL's in certain cases, it also increase the rights of Ts who can now sue the LA as well as the LL. Before, it was generally thought that LAs were immune. This could help a T, for example, where their LL has gone bankrupt.

Anyway, to update I have not received any information up until today, so it looks like I may have to go through the court procedure! It is a bit of struggle for me to decide whether or not I will succeed if I go for the 3x penalty approach..

Alas it is a lottery as there is still no precedent judgement on whether protection / return prior to the hearing is a defence to teh 3x. You chances of the 3x are probably just under 50% but I would say that you have very little to lose by going for it.

However, the chances of the return of your deposit (or its protection) is 100% - less any valid deductions the LL can make.

Also, in my claim should I deduct the last 18 days of rent that I owe the LL?

If you are sure you owe this money then yes, your claim should be for your deposit minus the 18 days rent + 3x deposit plus interest plus court fees.