deposit problem and llord has not protected

boomshake

I hope you can help with a dire landlord/deposit problem! I would really appreciate some advice for a quite complex situation.

I was a private tenant for 3 years and 10 months and left the property recently after being issued an S21 as the landlord sold the flat. Before I left I was aware the landlord had not put my deposit into a protection scheme (Id asked him to do so several times and he never did anything and right before I left he confirmed that he had never done so.) My tenancy began in dec 2006 but was then updated with a new agreement in 2007 and 2008 and was a rolling tenancy thereafter(as he never bothered to issue another agreement from 2009). My deposit was a hefty £3500

I left my flat in a perfect state and it was handed over to the buyer on the day I left (ie the landlord no longer owns it). Now I have asked for my deposit back and the landlord is refusing, stating that there is an unpaid bill (which I strongly dispute!) for water rates.

A little over a month before I vacated the property I emailed him again to ask whether the deposit was protected. he said no and then suggested two alternatives; I could a, deduct the last months rent from my deposit and he would reimburse the rest on the 29th september or b, he would put the deposit in a scheme. At the time I didnt answer, stating I wanted to talk to my partner about everything and the conversation went on to other things. In the end, I didnt pay the last months rent, thereby allowing him to deduct it from the deposit (I did so because we've had lots of trouble getting money or help from the landlord in the past and at the time I simply thought this was, at least, an opportunity to get some of my deposit back... as I'd already anticipated he was going to try and keep it). But I didnt say anything more about the protection scheme, feeling that this was a lost cause.

And now, 3 weeks after leaving the property he hasnt returned the remaining deposit (about £1500), stating the bill as his reason. He has issued me with a bill (for £1195) but has not given any explanation or proof of what its for - ie its just a figure he seems to have made up. I strongly contest the bill (as I, just like all my neighbours, should have had water paid through my rent. which the landlord agrees is the way water is usuall paid - he sent me an email saying he's just 'remembered' that I should reimburse him) and it seems clear he has generated the bill as a means to get out of returning my deposit (the first time the bill was ever mentioned was in response to my email requesting my deposit back).

What should I do? Can I proceed to the small claims court and ask for my deposit back (plus the 3x compensation?) because he didnt protect my deposit. Have I jeopardised that by deducting my last months rent from the deposit (even though he was happy for this to happen and I didnt agree to either of his 'options'). Should I dispute the water bill deduction officially? Or just forget about this and simply go after the deposit and compensation?

The deadline for the return of the deposit is friday - should I act before or after then?
We've also asked him for proof of where this new bill came from etc and have received nothing.

Any advice would be greatly received! Many Thanks,

N79

I would just go to the small claims court for the return of your deposit. Forget the 3x as the recent appeal court cases have effectively removed the 3x penalty as a LL could protect the deposit at any time before the hearing to avoid the 3x penalty. Since the tenancy has ended, and you just want your deposit returned, then just go for that.

This gives the added advantage that you can use Moneyclaim online or form N1 for your claim and pay small claims fees only (a 3x claim would need to start of as a standard claim and then be allocated to the small claims track).

boomshake

ok
does the fact that i knocked the last months rent off the deposit matter. my thoughts are he had no reson not to protect for nearly three years and it is his responsability whatever?

i take it small claims would see it that way too?

BitterAndTwisted

As you signed your last tenancy agreement in 2008 he was legally bound to protect your deposit in one of the recognised schemes. That you didn't pay your last month's rent and he has deducted it from the deposit isn't relevant to you not getting the balance paid back in full, especially if your tenancy agreement confirms that the water-rates were included in the rent.


Before you file your claim write to the landlord a letter headed "Letter Before Action" asking him to refund the balance of your deposit within 14 days, mentioning that any deduction for water-rates will be contested by you because the tenancy agreement states that the charges for it were included in the rent. This might prompt them to repay it in full before you file the claim.

martindow

If the deposit is 3500 it looks as though the annual rent could be over 25000. I think this means that deposit protection is not required.

N79

martindow wrote: »

If the deposit is 3500 it looks as though the annual rent could be over 25000. I think this means that deposit protection is not required.

Limit was raised to 100000 at the start of October with retrospective effect so it would have been required.

Planner

N79 wrote: »

Limit was raised to 100000 at the start of October with retrospective effect so it would have been required.

This is incorrect. Retrospective protection isnt required.

OP. What you need to do is establish wheather your depsoit should have been protected. If your rent was over £25,000pa then no.

If it should have been protected you can ask the LL to protect the balance of the deposit if you want. If he refuses, you have the option of court for the deposit + x3. Keep in mind that if the deposit is subseqently protected, you will not win the x3 amount.

A simpler route has already been advised - a simple N1 small claim (or MCOL) for the remaining balance.

N79

Planner wrote: »

This is incorrect. Retrospective protection isnt required.

OP. What you need to do is establish wheather your depsoit should have been protected. If your rent was over £25,000pa then no.

If it should have been protected you can ask the LL to protect the balance of the deposit if you want. If he refuses, you have the option of court for the deposit + x3. Keep in mind that if the deposit is subseqently protected, you will not win the x3 amount.

A simpler route has already been advised - a simple N1 small claim (or MCOL) for the remaining balance.

To create a little bit of a pantomime feel to MSE - oh yes it is.

The assured tenancies amendment order 2010 simply amended the figure stated in the housing act 1988. Therefore, all tenancies created after the introduction of the 1996 housing act (which defaulted all tenancies to ASTs unless they could not be an AST) with rent above 25000 and below 100000 became ASTs on the 01 Oct 2010. This was an odd way of implementing the change, but there you go. The change effective meant that the 25000 limit just ceased to exist and it was as if it had never existed.

Since the OP states they left the property 3 weeks ago then, so long as the rent was below 100000 on the day they left then their tenancy was an AST from the 01 Oct 2010. Therefore the deposit should have been protected (as of the 01 Oct).

The amendment order is here for you to view the way the change was implemented.

http://www.legislation.gov.uk/uksi/2010/908/article/3/made

Planner

N79 wrote: »

To create a little bit of a pantomime feel to MSE - oh yes it is.

The assured tenancies amendment order 2010 simply amended the figure stated in the housing act 1988. Therefore, all tenancies created after the introduction of the 1996 housing act (which defaulted all tenancies to ASTs unless they could not be an AST) with rent above 25000 and below 100000 became ASTs on the 01 Oct 2010. This was an odd way of implementing the change, but there you go. The change effective meant that the 25000 limit just ceased to exist and it was as if it had never existed.

Since the OP states they left the property 3 weeks ago then, so long as the rent was below 100000 on the day they left then their tenancy was an AST from the 01 Oct 2010. Therefore the deposit should have been protected (as of the 01 Oct).

The amendment order is here for you to view the way the change was implemented.

http://www.legislation.gov.uk/uksi/2010/908/article/3/made

I maintain that it isnt necessary to retrospectivley protect these types of depsoits. The issue isnt with the ammendement order wording, its with the wording of the Housing Act 2004. S.213 (1) is clear that:

'Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.'

IF a deposit was paid back in December 2006 in conection with a common law tenancy (rent >£25,000pa) then it wasnt paid in connection with a shorthold tenancy, and therefore no deposit protection requirement. Simples.

The changes to AST thresholds in October changed the Housing Act 1988 NOT Housing Act 2004.

N79

Planner wrote: »

I maintain that it isnt necessary to retrospectivley protect these types of depsoits. The issue isnt with the ammendement order wording, its with the wording of the Housing Act 2004. S.213 (1) is clear that:

'Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.'

IF a deposit was paid back in December 2006 in conection with a common law tenancy (rent >£25,000pa) then it wasnt paid in connection with a shorthold tenancy, and therefore no deposit protection requirement. Simples.

The changes to AST thresholds in October changed the Housing Act 1988 NOT Housing Act 2004.

Firstly, in this case we are looking at a post 2007 renewal. I agree that a tenancy which started in December 2006 and which was never renewed would not require the deposit to be protected.

Secondly, I would agree that you have a debatable point. Paid is clearly simple past tense and you could read connection in the way you are. Personally, I would not like to maintain your argument before a judge but you could certainly make it.

Maybe someone rich will challenge a S21 notice to the High Court and then we will know. Of course, the S21 part (S215) uses the phrase "has been paid in connection with" which would, in my view, be a higher hurdle to cross as, without doubt, the deposit "has been paid" and the deposit is "connected to a shorthold tenancy).

Incidentally, the Government's guidance notes to Parliament agree with me, but they may well be wrong (although they do clearly state the intent of government when they drafted the legislation, but, as with deposit protection 3x, they may have made a mess of the actual drafting (see para 4.6).

http://www.ialibrary.berr.gov.uk/uploaded/2010-01-28%20The%20Raising%20of%20the%20%C2%A325k%20Annual%20Rentasl%20Threshold%20for%20Assured%20Tenancies.pdf


How about we agree to disagree until the High Court says otherwise?:D

And to highlight to the OP that both Planner and I think that your simplest course of action is to forget deposit protection and just sue your former LL in the small claims court for your outstanding deposit.

Planner

N79 wrote: »

How about we agree to disagree until the High Court says otherwise?:D

Any chance of some petty name calling first?

If not I agree to disagree