Difficulties in getting deposit back!!

palasmy

“ I’m confused about whether or not to include the LL in the list of defendants? I know the LL is living overseas and it raises concerns to me that this might have a negative impact on my claim. But I’m worried if doing this will anyway make a mess of my claim for two reasons, one the fact that he is living overseas will potentially complicate things? And secondly if the court doesn’t receive a response from his end, will it be acceptable to the court if only the LA responds and not the LL?

On the other hand can I just exclude the LL from the defendant list to avoid all of the above? Is there a chance that the court will ask me to re do the claim with LL included as well? The deposit was given to LA and there is enough proof to warrant this, also the LA are the ones who manage the property for the LL now. However when the deposit was paid to the LA at the start of the first year tenancy, they were not managing the property but they did after renewal for the second tenancy period.

Please advise

palasmy

Hello All,

A quick update on my case, I have submitted my N208 forms in the small claims court. I have included both the LA & LL as the defendants. The fees was 150 quids. I had to give the court four sets of everything (one each for the defendant and one for the court) and the court returned one set for me which was stamped and also with an attachement briefing the details of the summon. Im hoping that, despite the fact that my LL is in overseas, the court shall accept the response from the LA alone?They should receive the summons tomorrow, and what happens next remains to be seen...will keep you guys posted then.

Thanks

palasmy

The LA has chosen to contest the claim and has suggested the following should have been an alternative remedy to the court,

" The tenant should have sought recourse via the dispute service as both certificates are valid. The tenant also trashed the house"

I don't understand how to seek the servics of TDS when they have clearly indicated that the deposit is unprotected and that they can't do anything! The claim of the trashing the house is absolutely rubbish, as the only bag we left in the front of the house was the clothes donation bag that we put there for collection due in next two days after our check out.

Among the other things that the LA has mentioned, they have referred their defence based on the original AST (first year tenancy) which was signed by both parties rather than the second agreement which was signed only by me (when I queried about the landlord signature that time they said it is not necessary). Now they have given the same reason for not using the new agreement, which was their fault and not mine. The difference between the two AST is that it was during the start of the intial tennacy that they had the deposit protected for short time and later unsubscribed to the scheme. I guess they are trying to build their defence based on this fact, however TDS have clearly refused to do any service based on the initial subscription as the unsubscription was done well before the start of second period of tenancy.

The LA has also objected to the claim saying we are not defendants and that I should have used the resolution service. What do they meany by they are not defendants, I paid my deposit to them and not the landlord. Is it valid?

LA has stated that they are not available for any furhter enquiries as they will be on holiday until 28th Aug, unfortunately I will be on vacation starting 26th Aug and will not return until 26th Sept.

Any comments / suggestions will be greatly received.

clutton_2

""The tenant should have sought recourse via the dispute service as both certificates are valid. ""

the 2004 Housing Act grants both LL AND tenant the legal righth to refuse to use the arbitration service of a tenancy deposit protection scheme.. therefore you are well within your rights to go to court....

""The LA has also objected to the claim saying we are not defendants "" - letting agent is trying to pass the buck to LL


""The tenant also trashed the house""" - do you have a check in and a check out inventory signed by both LA and yourselves ?


""they had the deposit protected for short time and later unsubscribed to the scheme."

the law is Unequivocal... the deposit must be protected for the ENTIRE tenancy irrespective of how manyASTs are signed during its length.....


these LAs sound as if they dont really know what they are talking about.... they are trying to bully you (which is what happens in small claims sometimes) - dont let them get you down.. you have the law on your side...

Re holidays - all you can do is let the court know that between these dates you cannot attend a hearing.....

Whether LA is on holiday or not, if court docs give them a deadline date for response, they must respond within that time....

We could ask if LA is on hols for 3 weeks.. who is looking after the property he manages during that time........

palasmy

Thanks Clutton,

There was no check in signing for the final period of tenancy and no check out as well. The only inventory we had was at the start of the tenancy, the LA has attached several photographs now showing details of the house. Fortunately I had several pictures taken when we checked out of the property. I'm pretty confident that I can prove the state of the house as clean when we moved out. Moreover the check out inspection was never done in out presence and carried out for few days later.

Will the court accept the LA's attempt to escape? I know the LL is living overseas, the court says it will wait for the LL to respond to the claim until 18th Aug after which the file will be referred to the district judge for directions.

clutton_2

there is no telling what a district judge will rule as to who is the legal defendant.... there have been very few precedent-setting court cases using the deposit legislation....

sounds good re the inventory.. i can see no need for a second inventory just because you re-signed an AST....

if you did not sign the check out inventory on the day it was done i would hope a judge would not see it as proof of condition on exit...

bw

tbs624

Palasmy - I'm still not clear on who initially received your deposit and who currently holds it?

Earlier in this thread, both N79 and I mentioned the High Court case of Draycott & Another v Hannells Lettings Ltd 2010.

You may find it useful to read this write up on the Court's decision (Painsmiths were the instructing solicitors for the appellant LA firm. Point 1 may be relevant to you. See also here

palasmy

Thanks for the links, TBS. They were pretty informative about how cases of similar nature will proceed in court. I'm a bit confused myself whether or not I should represent myself or should I hire a solicitor (concerns me about affordability) to represent me? But surely based on the link one, point one, the LA can be considered as a person acting on behalf of the LL in relation to the tenancy, additionally the LA has received the deposit and is holding it still which makes them liable? so they cannot say that they are not the defendant?

But I guess my case is slightly different to the one in the links, the deposit in our case was protected in 14 days as required however it wasn't left protected for entire tenancy duration. This is where it becomes complicated, the LA argues that the dispute scheme should render its service to settle the dispute now because the deposit was protected with them at the start of the tenancy although it is now not. Where as the scheme is refusing, saying that the deposit is not protected in our scheme now hence we can't involve in the dispute process. whatever it is, me as a tenant is the victim here, it is three months since we checked out on the property and we are still struggling to get our deposit back..

tbs624

palasmy wrote: »

But I guess my case is slightly different to the one in the links, the deposit in our case was protected in 14 days as required however it wasn't left protected for entire tenancy duration. This is where it becomes complicated, the LA argues that the dispute scheme should render its service to settle the dispute now because the deposit was protected with them at the start of the tenancy although it is now not.

.. which shows the LAs ignorance of tenancy deposit matters. The LA will have been amongst those "unregulated" LAs who were refused continuing cover by the TDS insurance folk. In these circs, TDS will have written both to the LA and tothe T confirming that cover was being withdrawn and urging both parties to make sure that the deposit was in fact registered with one of the other schemes. You said that you received notification.

I know that if mydeposits.co.uk has cause to withdraw registration from LAs/Lls it offers 3 months notice of loss of cover and provides dispute help only within that final period.

palasmy wrote: »

Where as the scheme is refusing, saying that the deposit is not protected in our scheme now hence we can't involve in the dispute process. whatever it is, me as a tenant is the victim here, it is three months since we checked out on the property and we are still struggling to get our deposit back..

I can understand that the Scheme would not now involve itself, and the LA is a fool if s/he thinks that they would/should ( otherwise known as getting something for nothing) Presumably this LA remains unisgned to ARLA or similar, the likely reason for the withdrawal of cover in the first place?

Hindsight and all that... but for other Ts reading the thread - you do need to check from time to time that your deposit continues to be held by /lodged with a scheme, if you receive any notice from the original scheme itself indicating changes afoot.

palasmy

So what should I do next? I have spoken to the court and they have asked me to send in a written letter stating my vacation period, which will start from end of this month for a month. While the court is waiting for the LL's acknowledgement until 18th, they say the district judge will direct the proceedings after that date. Meanwhile, the LL had mailed me yesterday saying that he was 'astonished' that the LA has not returned my money yet despite told to do so few weeks back!

Would it mean that the judge will start having hearings after the 18th, do I have to go to court or will they be able to judge based on the supplied documents? Am I allowed to give additional docs that will help my case now?