TDS More problems

may_fair

Trebor01 wrote: »

Its wrong and needs to be addressed.

I will await a court date and attempt to resolve in the hope a judge will see the errors they have made.

Do not get embroiled in the errors of the TDS' decision in the context of the court claim. You are not arguing against the TDS decision, you are simply bringing a claim for damage/unpaid rent against a former tenant, and the court will not be interested in hearing how wrong the TDS were about this or that.

All the anecdotal evidence I've seen indicates that deposit scheme adjudication is biased against LLs; even the official guidelines published by the three schemes shows bias. The solution is not to agree to adjudication (it's not compulsory).

Trebor01

Mayfair _ I agree completely and appreciate your concern. I will do my utmost to show the court that the TDS were responsible for ensuring that that deposit was not returned to the tenant. You are right, the tenant owed me the money but as they were the "guardian" for that deposit, and that it was returned in error, I have no alternative other than to pursue them for not carrying out their responsibilities in accordance with there own TOBs. I have no forwarding address for my ex tenant either, so cannot pursue them at this stage. I hope that the court will see that by ignoring documents provided to them to establish a fair outcome for the deposit left, that in ignoring documents provided they have indeed failed to carry out their duties under there own T+C's.

In future I will go straight to a court for a decision.

may_fair

Trebor01 wrote: »

I will do my utmost to show the court that the TDS were responsible for ensuring that that deposit was not returned to the tenant....I hope that the court will see that by ignoring documents provided to them to establish a fair outcome for the deposit left, that in ignoring documents provided they have indeed failed to carry out their duties under there own T+C's.

You seem to be missing my point entirely. The court will NOT be interested in hearing about the errors of the TDS. You do NOT have to establish that the TDS decision was wrong. If you bang on (and on) about the TDS you will be wasting the court's time, so it could in fact harm your case to do so. Stick to the facts of your case, which is a claim for damage and unpaid rent, not a crusade against the TDS.

Trebor01 wrote: »

I have no forwarding address for my ex tenant either, so cannot pursue them at this stage.

Try a tracing agent such as http://www.findermonkey.co.uk/ (but if the tenancy ended fairly recently, it's best to wait a while for the T's new details to trickle down through the system).

Alternatively, do you know where T works? If so, you could pay a process server to serve the claim in person (you can't post the claim to a work address without the court's permission).

Trebor01

No I don't know where the ex tenant works.

Trebor01

Mayfair - I do understand your point fully. As you seem very clear on this subject and I must say very helpful, could I ask another question so that I can be sure to address as accurately as possible.

Given that in my orig dispute raised with the TDS failed on my part on a crucial document apparently being missing (namely the check out report), yet I can show conclusively that it was in fact sent (emails to prove etc) I have a dilemma.

I can see that if I put the TDS on the stand, the judge will simply say that they followed their arbitration process and that I need to pursue my ex tenant. Then I put my ex tenant on the stand and raise the same points that were not settled via the TDS dispute, and she will simply say that the TDS found in her favour during the dispute review, and that the check out report was not present so could not find in my favour.

The only form that shows conclusively that the check out report was provided is a TDS form namely a TDSN 2, of which I have a copy (from my DPA request) that quite clearly shows that it is marked as being provided. It is at this point in the resolution process that by ignoring it in the first instance the orig TDS dispute resolution failed on my behalf, yet if the TDS had looked more carefully they would have (1) seen that the check out report was in fact present and (2) also seen that the ex tenant could not possibly have disputed the items in the check out report (which she did) without having first seen it.

It's at this point where I am struggling to know what to do next, as although most of the items on the check out report were not settled as the adjudicator stated that the check out report was not present, he then settles smaller aspects of the claim in my favour even though this report was (in their words) not present, so I don't understand how this inconsistency applies, and who I challenge on this, as once again the tenant (if put on the stand) would keep referring back to the adjudication report and so on.

I know i should never have used the TDS in the first place, but do I have a way out.....?

G_M

Well what you don't do is start a new thread! I'm getting dizzy!

may_fair

Trebor01 wrote: »

Mayfair - I do understand your point fully.

I'm afraid that the rest of your post shows that you don't.

I can see that if I put the TDS on the stand, the judge will simply say that they followed their arbitration process and that I need to pursue my ex tenant. Then I put my ex tenant on the stand and raise the same points that were not settled via the TDS dispute, and she will simply say that the TDS found in her favour during the dispute review, and that the check out report was not present so could not find in my favour.

Please try to understand what I am saying. If you bring a county court claim against the tenant the TDS adjudication decision is TOTALLY IRRELEVANT and DOESN'T MATTER. You will be claiming for unpaid rent/damage against the tenant - full stop. You do NOT have to challenge the TDS decision, or argue against it, or put them 'on the stand'. The court will NOT be interested in the TDS decision. The court will NOT care about the TDS decision. The TDS decision is NOT a defence for the tenant. The court will make a completely independent judgment based on the evidence you submit to the court, NOT the evidence you submitted to the TDS.

FORGET ABOUT THE TDS DECISION. IT DOESN'T MATTER, IT'S OVER, AND IT'S NOT RELEVANT TO YOUR CLAIM.

Trebor01

Mayfair - It seems we won't get anywhere but I thank you for at least trying. From past experience in a small claims court against a previous tenant, they DID use the findings of a dispute service (albeit not the TDS) to support their case, and the judge DID take this into account which severely impacted on the money awarded, so you see I DO understand and a judge WILL be interested in support evidence so it appears it IS a valid defence for a tenant, which is my concern. But thanks.

sequence

I'd be surrised if you even have to mention the TDS in court, it really is totally irrelevant.

Trebor01

Sequence - I am not expecting to mention them, but am sure my ex tenant will.....