legal proceedings for deposit back

kanari

may_fair wrote: »

You should withdraw the claim and start again. If you proceed with this claim, your claim will fail, and you could end up being ordered to pay the LL/agent's legal costs.

that is scary :(:( I dont know what to do now I cant afford to start all again :(:( .... are you sure the claim will fail ???

DVardysShadow

may_fair wrote: »

I've only just seen this post.

As I said in post #5 and #11, you cannot claim against LL (or agent) under s.214 Housing Act 2004 after the tenancy has ended. You can only claim for return of the deposit.

may_fair wrote: »

No, claim 1 doesn't still stand. It's a claim under s.214(3) Housing Act 2004 and that subsection only applies if subsection s.214(2) applies, which it doesn't, because the whole section doesn't apply to a tenancy which has ended.

Well be useful and state under what grounds the deposit may be reclaimed. And whether it is possible to amend the claim.

may_fair

kanari wrote: »

that is scary :(:( I dont know what to do now I cant afford to start all again :(:( .... are you sure the claim will fail ???

Apparently you did not read the link I posted in post #5.

may_fair wrote: »

Tenants whose tenancy has ended have no claim for the 3x deposit sanction since the judgment in Gladehurst v Hashemi a couple of weeks ago.
http://nearlylegal.co.uk/blog/2011/05/eviscerated-now-also-drawn-and-quartered/

In paragraph four it explains that the judgment means "tenants cannot make claims against their landlords for three times the deposit at any point once the tenancy is over."

It also includes a link to the actual judgment, where, in paragraph 37, you'll see that the judge states that "the power of the Court to make an order under s.214(3) and (4) is no longer exercisable once the tenancy has come to an end".

This is a binding Court of Appeal judgment. That means the lower courts like the county court must follow the ruling. Unless the judgment is overturned by a higher court, it's currently impossible for a tenant to win a claim under s.214 after the tenancy has ended.

Sorry, but I did state this clearly not once but twice in this thread.

You could perhaps try to amend the claim to a claim for return of the deposit only, removing all references to Housing Act 2004.

may_fair

DVardysShadow wrote: »

Well be useful and state under what grounds the deposit may be reclaimed. And whether it is possible to amend the claim.

The deposit is money paid to the landlord and held as security. As such it is refundable to the tenant after the tenancy ends, unless the LL has valid claims against it. OP need do no more that state that he is claiming for return of the deposit paid in respect of his tenancy (obviously including full details of the tenancy and when it ended, amount of the deposit, date it was paid, etc etc).

It may well be possible to amend the claim, but OP will need either the permission of the court OR the written consent of the defendant(s). See CPR Part 17.1

may_fair

kanari wrote: »

2. That if the Defendant ( new LL name )

If you were not officially informed, under s.3 LTA1985, that the new LL was your new LL, the old LL is still liable to you, as well as the new LL.

As I said in post #25:

may_fair wrote: »

Bring a claim against old landlord and new landlord as co-defendants. Don't bother with the agent.

And read G_M's post #24 again, where he quotes the statute and explains:

G_M wrote: »

Note the "jointly and severally liable". That means they are BOTH responsible in law. So yes, take legal action against them BOTH.

So, really, you need to amend the defendants, too. The claim should be against old LL and new LL, not agent and new LL.

kanari

thank you may-fair

for the claim is actually against old LL and the agent representing the new LL as they are a managing agent

can you tell me how to amend should I call or write to the court or go to see an officer there

kanari

this is what I have filled in the claim form :

In accordance with section 3 of the Landlord and Tenant Act 1985 co-defendants shall be jointly and severally liable to the tenants as both failed to serve a writing notice of landlord changeover to the tenants.


The Claimants claims that the deposit of £1450 required by the tenancy agreement originally dated [...........] in respect of the premises at [.........], made between the Claimants and the Defendants was not returned.

And the Claimants asks that the court make an order:

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

2. That if the Defendant ( name of the agent) appears to be holding the deposit do pay to the Claimants, within 14 days of the making of 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 , as the deposit was not paid into an appropriate tenancy deposit scheme (in breach of section 213(1) of the Housing Act 2004

3. The Claimants claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from ...... to ..... of £.... and interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.41.

The Claimant are therefore seeking payment of £5800 , plus the court fees and interest if the defendant ( the name of the agent ) appears to the court to be the holder of the deposit

The Claimants are therefore seeking payment of £1450 , plus the court fees and interest if the defendant (old LL name) appears to the court to be the holder of the deposit

The Claimant encloses copies of:
o the Assured Shorthold Tenancy Agreement signed on 06/08/2010 relating to the above named premises;
o the receipt for the deposit;
o confirmations from Government-approved tenancy deposit protection schemes that they did not hold the deposit for the above named premises
o emails sent to the Defendant requesting information about, and return of, the deposit. The ClaimantS additionally requested the return of the deposit on numerous other occasions by telephone since the end of the tenancy, with no repayment forthcoming
o the Letter Before Action sent to the defendants
the checkout report confirming that the tenants have left the flat in good conditions
o the Notes for the Defendants

may_fair

kanari wrote: »

thank you may-fair

for the claim is actually against old LL and the agent representing the new LL as they are a managing agent

You have no claim against the new LL's agent, only against the new LL himself (and the old LL).

can you tell me how to amend should I call or write to the court or go to see an officer there

I'm sorry, I don't know how to go about amending a claim. I can only suggest asking at the court how to proceed.

kanari

I am soooo confused now

kanari

The claim is against the person who received the deposit. If you paid your deposit to an agent, it
depends on whether they were “letting only”, in which case they should have paid your deposit to the
landlord and the landlord should protect it, or “managing agent” and directly responsible for protecting

the deposit. The law says that “landlord” includes anyone acting on the landlord’s behalf