Landlord not returning deposit

N79

kiavvak wrote: »

Hello again.

So, since sending off the LBA we've heard nothing back from the Landlord - sadly no money has dropped through the letterbox! Due to some unrelated personal circumstances, we've only just got started on putting together the information for the court. I've copied in below the wording we are using, and the details of the documents we're thinking of providing. Is there anything we've forgotten about? Comments would be very welcome.

"The Claimant claims under the Housing Act 2004 section 214(1)(a) that the deposit of £1200 as required in the Assured Shorthold Tenancy originally dated 11th March 2009 in respect of the premises at ADDRESS, made between the Claimant and the Defendant was not paid in to an appropriate tenancy deposit scheme (in breach of section 213 (1) of the Housing Act 2004); or that the Claimant was unable to confirm from the Scheme Administrator of any tenancy deposit scheme that they held the deposit and the Claimant did not received the prescribed information concerning which Tenancy Deposit Scheme was to hold the deposit within 14 days of the Defendants receipt of the deposit (in breach of section 213 (3) of the Housing Act 2004).

The claimant asks that the court makes an order:

1. That the person who appears to the court to be holding the deposit of £1200 do repay it to the Claimant, in accordance with section 214(3) of the Housing Act 2004.

2. That the Defendant do pay to the Claimant, within 14 days of making the order, a sum of money equal to three times the amount of the deposit, in accordance with section 214 (4) of the Housing Act 2004.

3. The Claimant claims interst under section 69 of the County Courts Act 1984 at the rate of 8.5% a year, from 7th February 2011 to 31st March 2011 of £14.53 and interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.28.

The Claimant is therefore seeking payment of £4800, plus court fees and interest.

The Claimant encloses copies of:
* the Assured Shorthold Tenancy agreement signed on 11th March 2009 relating to the above named premises. Despite requests (email included), the Defendant failed to provide a copy of the agreement signed by the Defendant;
* email from the Defendant confirming the start of the Tenancy;
* email from the Defendant confirming an inspection of the above named property. The email conversation includes a request for documentation from TDS Ltd regarding the protection of the deposit. This documentation was not provided (in breach of section 213 (3) of the Housing Act 2004);
* confirmations from each of the three Government-approved tenancy deposit schemes that they did not hold the deposit for the above named premises for the entire length of the tenancy;
* emails sent to the Defendant requesting information about, and return of, the deposit. The Claimant additionally requested the return of the deposit on numerous occasions by voicemail since the end of the tenancy but the Defendant failed to return any calls to made by the Claimant;
* the Letter Before Action sent on 16th March 2011 to the Defendant's address on the Tenancy agreement (two copies), to the above named premises and to the Defendant's company's address and proof of postage for each letter. The Defendant did not reply to the Letter Before Action.
* Notes for the Defendant. "

Looks good. Just a quick check that you are using form N208 (technically form N1 is incorrect as you are applying for a court order, but generally speaking the courts seem willing to allow cases to proceed unless the defence puts up a solid procedural objection) and remember that this is not a small claims track case (as you are making a part 8 application as described by Guido) so you will probably have to pay the fees relevant to the fast track (unless the court decides to shove it in the small claims track anyway).

GuidoT

I have done some research, definitely a Part 8 claim (N208) as N79 above and guidance here.

These solicitors know landlord and tenant law (they were involved with the first high court decision on the matter). They set out the procedure, you need to include a witness statement - you will need to search around regarding what to say in it.

If the other side instruct lawyers you will have exposure to costs, if the matter proceeds trail these costs will dwarf the £5K or so you are claiming and if you lose you will end up with these costs. This is why you must get it right and not jump in without researching the matter properly, i.e. do not go off half cocked.

Time after time I see horror stories of LIP involved with comparatively low value claims and getting stuck with horrendous legal costs. I am not saying you are one of these kiavvak, just forewarned is forearmed.

N79

GuidoT wrote: »

I have done some research definitely, a Part 7 claim (N208) as N79 above and guidance here.

Part 7 claim? Could you enlighten me please as I have always understood it to be a part 8 claim?

GuidoT

Typo - I have corrected it now.

kiavvak

Thanks all - unfortunately we've some sad family news this week, so the court procedure is on the back-burner for now. We will make sure we look carefully into the links you have sent before we go any further. GuidoT is right that we need to make sure we know what we're getting ourselves in for before we begin.

We'll let you know how things go. Thanks again.

kiavvak

Hello everyone,

It's probably time for a bit of an update - unfortunately things have taken a bit of a backwards step since my last post, as I will explain below.

As we were going through all the court forms in detail we were awaiting the outcome of cases (Potts v Densley and Gladehurst v Hashemi) that had gone to appeal. The ruling that came out of it seems to completely change the interpretation of the relevant part of the Housing Act, as the judge indicated that the 3x deposit penalty cannot apply whilst the applicant is no longer a tenant (discussed here http://www.landlordlawblog.co.uk/2011/05/24/tenancy-deposits-the-law-that-never-was/). This seems to be complete madness, but leaves people like us in a difficult position.

We're at the point where the compensation would be a bonus, but is far from the priority - if we could just get the £1200 deposit back (preferably without being liable for court and legal fees), then that would be enough. It's just very unclear how these applications will be dealt with by the courts now.

I suppose this may be a grey area for everyone now (not just the uninformed, like me!), but I wondered if anybody had any advice as to how to go forward. Can we just put in an ordinary Small Claims for the deposit money alone, forgoing the compensation? Do we need to send out another letter before action?

Thanks again for your help and advice.