LL Didn't own house when he rented it to us

jjlandlord

franklee wrote: »

I don't think chasing the 3 x deposit during the tenancy is any more risky than trying to recover the deposit after the tenancy is over.

It is because a claim for 3x deposit will not go through the same track as a simple money claim (just to recover the deposit) and that means hundred of pounds of legal and solicitor fees... Plus the risk to have to pay the landlord's legal costs should the claim fail.

franklee

jjlandlord wrote: »

It is because a claim for 3x deposit will not go through the same track as a simple money claim (just to recover the deposit) and that means hundred of pounds of legal and solicitor fees... Plus the risk to have to pay the landlord's legal costs should the claim fail.

Yes it's a different track but you can still DIY can't you, it need not mean a lot of legal and solicitor fees. As for having to pay the landlord's legal costs, it would be important not to "ambush" the LL, so T would need a paper trail to show he'd asked L to protect and that had been ignored. If the claim was justified I don't see L's fees would go against the tenant even if L protected the deposit on the way in to court.

jjlandlord

Legal costs, as in court fees, would be in the hundreds of pounds no matter what, and the procedure would take months. Would that be worthwhile just to have the deposit protected? Especially considering that OP's situation seems rather complicated.

may_fair

franklee wrote: »

Yes it's a different track but you can still DIY can't you, it need not mean a lot of legal and solicitor fees. As for having to pay the landlord's legal costs, it would be important not to "ambush" the LL, so T would need a paper trail to show he'd asked L to protect and that had been ignored. If the claim was justified I don't see L's fees would go against the tenant even if L protected the deposit on the way in to court.

It's a really bad idea to DIY, as demonstrated by Potts v Densley:

http://www.bailii.org/ew/cases/EWHC/QB/2011/1144.html

Potts was the tenant and DIY'ed her claim. It failed and she appealed, at which point she hired a firm of specialist landlord and tenant solicitors.

However, she lost again in the High Court, because she had failed to plead her original claim correctly (the LL had failed to provide the prescribed information, but Potts hadn't explicitly claimed on that basis). Potts posted about the case at length on the landlordzone forum, before and after the appeal, and she told us that she lost about £8,000. The High Court didn't award her costs, at any rate.

may_fair

franklee wrote: »

I don't think chasing the 3 x deposit during the tenancy is any more risky than trying to recover the deposit after the tenancy is over.

T can't claim after the tenancy has ended, following the Court of Appeal judgment in Gladehurst v Hashemi:
http://www.bailii.org/ew/cases/EWCA/Civ/2011/604.html

jjlandlord

may_fair wrote: »

T can't claim after the tenancy has ended, following the Court of Appeal judgment in Gladehurst v Hashemi:
http://www.bailii.org/ew/cases/EWCA/Civ/2011/604.html

To clarify: T cannot claim for 3x deposit after the tenancy has ended.

franklee

Yes may_fair has misunderstood what we were talking about which was comparing my suggestion of T claiming for 3x deposit *during* the tenancy if LL refuses to protect the deposit with your suggestion of T claiming 1x the deposit back *after* the tenancy has ended (money claim) by which point the T will know if any deductions from the deposit are due or not. I did make it clear my suggestion should be done during the tenancy and you made it clear your suggestion should be done after the tenancy ends. My worry was waiting that long when the LL's financial position is deteriorating with a repossession and all.

I wrote:

franklee wrote: »

As the OP is still the tenant and it's an AST there is the option to sue for 3 x deposit if the deposit is not protected.

franklee

may_fair wrote: »

It's a really bad idea to DIY, as demonstrated by Potts v Densley:

http://www.bailii.org/ew/cases/EWHC/QB/2011/1144.html

Potts was the tenant and DIY'ed her claim. It failed and she appealed, at which point she hired a firm of specialist landlord and tenant solicitors.

However, she lost again in the High Court, because she had failed to plead her original claim correctly (the LL had failed to provide the prescribed information, but Potts hadn't explicitly claimed on that basis). Potts posted about the case at length on the landlordzone forum, before and after the appeal, and she told us that she lost about £8,000. The High Court didn't award her costs, at any rate.

That link takes me to Paimsmith's blog on the case not bailii. I don't think it's a good example for a general case, from the blog:

"However, the judge refused to award the penalty of three times the deposit because she held that there had been a technical breach of the requirement to secure the deposit and that given the:

“unusual circumstances of the case, it would not be in the interests of justice to do so”.

And:

"On the 10th August the Landlord offered to pay the deposit back to the Tenant however, the Tenant refused the deposit"

franklee

Have been reading more about Potts v Densley, it's certainly interesting but as someone comments on Tessa's blog "Potts v Densley is not a simple case of a landlord failing to protect the deposit over an extended period." The point being that in a simple case of a landlord failing to protect the deposit over an extended period the tenant who pushes for deposit protection compliance likely to get a landlord to return or protect the deposit, not to mention a tenant would stop when that happens, before things go anywhere near as far as Potts.

http://www.landlordlawblog.co.uk/2011/05/09/another-tenancy-deposit-case-potts-densle/

may_fair

franklee wrote: »

That link takes me to Paimsmith's blog on the case not bailii.

Apologies. I take it that you then found the link to the judgment on the Painsmith blog http://www.bailii.org/ew/cases/EWHC/QB/2011/1144.html ?

I don't think it's a good example for a general case

Perhaps not, but it's an extremely good example of DIY pleading failing miserably and costing the claimant a lot of money, contrary to your advice to DIY non-compliance claims.