advice needed, landlord did not use deposit service

Wings

In Draycott v Hannells Lettings Ltd,, it was stated that it was overly draconian to penalise innocent ERROR and that a failure to protect the deposit properly would always be penalised by section 215, which prevents the service of a section 21 notice while the deposit remains unprotected. Ultimately the latter position prevailed and the Court agreed that the Act itself does not impose a requirement that the deposit be protected within 14 days as long as it is protected prior to the matter coming before a Court.


In Draycott v Hannells Lettings,the Court Appeal went further by ruling that provided protection has been done, and the correct information provided, before the Court comes to consider the matter at a hearing then that is acceptable, even after proceedings have been issued for non-protection. Therefore the landlord’s deadline for compliance is the Court hearing itself and not the date by which proceedings have been issued. The Court did hold that if a tenant is compelled to issue proceedings to force the protection of a deposit then they are probably entitled to their legal costs in so doing. It should be noted here that the Court emphasised the importance of PRE- CONDUCT and discouraged any attempt to ‘AMBUSH’ a landlord for their ERROR in failing to protect a Deposit, by issuing proceedings for an unprotected deposit WITHOUT writing to them first.

Lastly, it would be an unique piece of legislation if the Act intended another citizen to lawfully penalise another fellow citizen, the Courts therefore not only recognising this, but also that the Act was intended to protect tenant’s Deposits against unscrupulous and dishonest landlords, and not incompetent landlords

tbs624

Wings - the Draycott cased has been discussed in several previous threads

Wings wrote: »

Therefore the landlord’s deadline for compliance is the Court hearing itself and not the date by which proceedings have been issued.

This of course is similar to the rules on rent arrears , when a T who pays down some or all of the unpaid rent prior to a court hearing will probably be able to defeat possession proceedings.

Wings wrote: »

The Court did hold that if a tenant is compelled to issue proceedings to force the protection of a deposit then they are probably entitled to their legal costs in so doing. It should be noted here that the Court emphasised the importance of PRE- CONDUCT and discouraged any attempt to ‘AMBUSH’ a landlord for their ERROR in failing to protect a Deposit, by issuing proceedings for an unprotected deposit WITHOUT writing to them first.

If you are going to lift chunks of text from Painsmith's blog it would probably be best to credit them. You miss the point. The OP in this thread has left the property, been refused the return of the deposit and two regular posters -B&T and Olly300- have already highlighted the need to send a Letter Before Action which fulfils the necessary pre-action conduct. You perhaps missed the part on that blog which read

"The Court made no comment on what the correct position should be if the deposit is not protected until after the tenancy has ended. This remains a live issue and one which must be considered."

Wings wrote: »

Lastly, it would be an unique piece of legislation if the Act intended another citizen to lawfully penalise another fellow citizen ..

Unique ? I suggest you look at the law more closely.

Wings wrote: »

.... the Act was intended to protect tenant’s Deposits against unscrupulous and dishonest landlords, and not incompetent landlords

Let's hope that a plea of "incompetency" is not to become a new acceptable "get out" clause across the court system....

The wording of the tenancy deposit legislation has allowed some LLs to dodge the intention of the law, to bleat and moan about their lot and present themselves as "innocents" : we get many posts on here from Ts who have repeatedly asked their LLs/LAs about the whereabouts of their tenancy deposits only to be repeatedly fobbed off.

The fact that whilst a tenancy deposit remains unregistered a LL may not serve a valid S21 notice may be of little interest to a T who wishes only to leave the property asap, receiving the correct return of his/her tenancy deposit.

Tenancy deposits should be scheme registered and the law should ensure that they are. Quite why it should have become a T's responsibility to cajole, pursue etc a LL to *make* them do what is ostensibly required by law is a mystery.

Wings

The following is what i have extracted from the OP’s original post:

“I have spoken with a couple of friends and tried to find some advice online but am slightly confused by it all.”

From our posts the OP should now be far better informed and knowledgeable in attempting to recover the Deposit in full, which to that end I hope the OP is successful.

Possibly with the OP making referral to the ex LL of an enquiry of the registration of their Deposit under the Deposit Protection Scheme, then the same might persuade the ex LL to refund the Deposit in full.

Whilst the legislation needs redrafting in order to offer better protection of tenant’s Deposits, there also needs to be a greater balance of equality and rights for the honest, responsible private landlord.

tbs624

Wings wrote: »

The following is what i have extracted from the OP’s original post:

“I have spoken with a couple of friends and tried to find some advice online but am slightly confused by it all.”

From our posts the OP should now be far better informed and knowledgeable in attempting to recover the Deposit in full, which to that end I hope the OP is successful.

Possibly with the OP making referral to the ex LL of an enquiry of the registration of their Deposit under the Deposit Protection Scheme, then the same might persuade the ex LL to refund the Deposit in full.

Whilst the legislation needs redrafting in order to offer better protection of tenant’s Deposits, there also needs to be a greater balance of equality and rights for the honest, responsible private landlord.

The "honest, responsible" LL will surely have fulfilled the legal obligation to scheme register a deposit in the first place, without the T needing to chivvy him/her along.

It's *really* not that difficult. Type "letting property" into Google and the first site up is:

http://www.direct.gov.uk/en/HomeAndCommunity/Privaterenting/RentingOutYourProperty/index.htm

Hit the link

Renting out your home

What you need to do to rent out your home including the types of tenancy you may need, and advice on using letting agents

which leads to this page, where you will find a list of LL responsibilities:

Landlord responsibilities

Your responsibilities as a landlord include:

• repairs to the structure and exterior of the property
• repairs to heating and hot water installations
• repairs to sinks, baths and other sanitary installations
• safety of gas and electrical appliances that you supply
• fire safety of furniture and furnishings that you supply
• providing an Energy Performance Certificate for the property
• protecting your tenant's deposit in a government-approved scheme

When it's that straightforward for a would-be LL to find out an initial outline of what's involved in property letting (discounting all the other potential sources of info previously mentioned) then it's clearly pretty pathetic to assert that LLs *still* don't realise that they are obliged to comply and just get that tenancy deposit registered.

patbal2000

Hi Guys and Gals
Sorry i havent replied to any of the posts on here for a few days, been a busy christmas,
firstly i would like to say thank you to all of you that have posted on here over the past few days,
this week i will be sending my ex - landlord a 'Letter of action' and give him the 2 weeks plus a few days to respond, if not the case will be heading to the small claims court.

I will keep you all posted as to how i get on.

Once again thankyou for all of your help and advice