advice needed, landlord did not use deposit service

Wings

There has been several landmark High Court Judgements under the Housing Act 2004 covering the Deposit Protection Scheme, and briefly indicate that a LL/LA COULD register/protect a Deposit, JUST before a Court HEARING, in order to avoid any penalty under the Act, for failing to protect the tenant’s Deposit. Although in any Court case, the Court will award the ex tenant their full legal costs for bringing the action against the LL/LA.

If I were in the OP’s position, I would simply write to the LL, requesting both the full return of the Deposit and the name of the Deposit Protection Scheme where the Deposit has been registered with. Pointing out to the LL that failure to return the Deposit in full by 4 January 2011, will lead to you instructing solicitors to start immediate legal proceedings for the recovery of the Deposit, interests on the same from the termination date of the tenancy, together with all your legal costs.

The OP should bear in mind that any letter sent to the LL, may be offered in evidence to the Court, so a polite, yet assertive and to the point letter may help the OP's case.

G_M

Wings wrote: »

There has been several landmark High Court Judgements under the Housing Act 2004 covering the Deposit Protection Scheme, and briefly indicate that a LL/LA COULD register/protect a Deposit, JUST before a Court HEARING, in order to avoid any penalty under the Act, for failing to protect the tenant’s Deposit. Although in any Court case, the Court will award the ex tenant their full legal costs for bringing the action against the LL/LA.

If I were in the OP’s position, I would simply write to the LL, requesting both the full return of the Deposit and the name of the Deposit Protection Scheme where the Deposit has been registered with. Pointing out to the LL that failure to return the Deposit in full by 4 January 2011, will lead to you instructing solicitors to start immediate legal proceedings for the recovery of the Deposit, interests on the same from the termination date of the tenancy, together with all your legal costs.

The OP should bear in mind that any letter sent to the LL, may be offered in evidence to the Court, so a polite, yet assertive and to the point letter may help the OP's case.

This is pretty well the same as Bitterand Twisted's excellent advice above and adds little.

The interest is really negligable - don't ask unreasonable amounts as the court will be swayed against you. If the deposit has not been lodged in a scheme, you can, and should, request 3 times the deposit. This is far more relevant.

Get written confirmation from each of the three schemes confirming the deposit was not registered.

Lynsey

A simple LBA should be suffice, especially if he has erred regarding the protection of your deposit.
Once he realises it will cost him money he should pay up quickly.

Good luck.

Lynsey

Wings

G_M wrote: »

This is pretty well the same as Bitterand Twisted's excellent advice above and adds little.

The interest is really negligable - don't ask unreasonable amounts as the court will be swayed against you. If the deposit has not been lodged in a scheme, you can, and should, request 3 times the deposit. This is far more relevant.

Get written confirmation from each of the three schemes confirming the deposit was not registered.

What is an unreasonable amount, believe me a Court will be more than sympathatic to any legal action taken by the OP, [FONT=&quot]particularly where it can be shown the LL was late in registering/protecting a Deposit.[/FONT]

I would suggest you search Baili for the most recent High Court Judgments under the Housing Act 2004.

SouthCoast

Statutory rate of interest is currently 8%.

http://www.hmcourts-service.gov.uk/courtfinder/forms/ex302_web_0510.pdf

fitzroy

The small claims court was set up so that litigants can act in person thus avoiding solicitors' costs. Unless the rules have changed the OP wouldn't be entitled to recover any legal costs. Also, the OP initially said the deposit was needed to spend on essentials for the new place but in a later post, said the deposit would have gone into a savings accounts toward a wedding. These "discrepencies" could be picked up by the District Judge when considering what, if any, interest is due.

tbs624

fitzroy wrote: »

The small claims court was set up so that litigants can act in person thus avoiding solicitors' costs. Unless the rules have changed the OP wouldn't be entitled to recover any legal costs.

Court fees may be claimed

fitzroy wrote: »

Also, the OP initially said the deposit was needed to spend on essentials for the new place but in a later post, said the deposit would have gone into a savings accounts toward a wedding. These "discrepencies" could be picked up by the District Judge when considering what, if any, interest is due.

IMO whether the OP would have spent the money is by and large irrelevant - the LL has effectively deprived the Ts of money that is rightfully theirs . for several months. Think about it - if the OP needed it for essentials they may well have had to borrow money at a higher rate of interest to cover that shortfall.

The LL is not entitled to use a T's deposit as a free overdraft facility/cash flow enhancement any more than a T may pay their rent late and not expect to pay interest to the LL.

dkmax_2

Wings wrote: »

There has been several landmark High Court Judgements under the Housing Act 2004 covering the Deposit Protection Scheme, and briefly indicate that a LL/LA COULD register/protect a Deposit, JUST before a Court HEARING, in order to avoid any penalty under the Act, for failing to protect the tenant’s Deposit. Although in any Court case, the Court will award the ex tenant their full legal costs for bringing the action against the LL/LA.

Moreover there is a recent 2:1 Court of Appeal decision which has firmly established the case law in this area. The x3 penalty is currently dead in the water and there is no real incentive to protect a deposit now, unless asked to in a letter before action. Total shambles.

Wings

dkmax wrote: »

Moreover there is a recent 2:1 Court of Appeal decision which has firmly established the case law in this area. The x3 penalty is currently dead in the water and there is no real incentive to protect a deposit now, unless asked to in a letter before action. Total shambles.

My point exactly, for the Courts recognise that most LLs are simply law biding citizens, using their BTLs to increase their pension portfolios, and in the majority of cases are not lawyers, thereby not familiar with the relevant Housing Act legislations.

Whilst ignorance is never an excuse in itself, the Courts were aware that the section of the Housing Act 2004 covering the Deposit Protection Scheme (hereafter DPS), needs to go back to Parliament to be redrafted.

Let us not forget that the intentions of the legislation was to both protect the tenant’s Deposit, and to reduce the number of Deposit disputes going to the Small Claims Courts, and whilst I have not yet heard of a DPS charging for their services in settling a dispute, I expect however in the near future that will change.

tbs624

Wings wrote: »

My point exactly, for the Courts recognise that most LLs are simply law biding citizens, using their BTLs to increase their pension portfolios, and in the majority of cases are not lawyers, thereby not familiar with the relevant Housing Act legislations.

Let's extrapolate that ridiculous line of argument - perhaps LLs also shouldn't be expected to know that they need a Gas Safety Cert, an HMO licence, that they have to declare their income to HMRC blah, blah?

Here's what the NLA (Nat LL Assoc) say:

There are now over 50 Acts of Parliament and more than 70 sets of regulations governing the private-rented sector.

This increasingly heavy regulatory burden means it is more important than ever that landlords understand the legal and regulatory environment in which they manage their lettings.

If you let property you are running a business - you cannot simply chirrup, wide-eyed " I am not familiar with the law" if you fail to meet your legal obligations. Would HMRC let you get away with that one?



The tenancy deposit regs ( badly worded as they are) have been with us for three and a half years and have been widely publicised. A LL would have to be shacked up in a cave somewhere not to have become aware of it. Newspaper articles, LL Assoc, newsletters, radio/TV ,publicity from the CAB, Shelter etc, even leaflets in with tax info.....


The LLs who fail to register their Ts deposits tend to be those who wilfully choose to do so because they think that they can simply pick and choose which legislation will apply to them