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Letter Before Action to return unprotected deposit.
Zorz_2
Posts: 324 Forumite
I need to send a letter before action to get my tenancy deposit back and I have a couple questions on the process. Here's what happened:
The tenancy started after 2007, in England & Wales. I paid a deposit to the lettings agent that was managing the tenancy and initially it was protected with an insurance scheme (so the agent kept the amount). During the tenancy, the property was bought by a new landlord, who a few days later evicted me illegally. This happened around 2 years ago, I've made a different thread about it and I'm still fighting to get him prosecuted for this.
I've written to the lettings agent asking for my deposit back, shortly after the eviction and sever times later. They ignored me so far, with BS excuses. I have not written to the second landlord, I didn't felt comfortable dealing with him directly (for obvious reasons).
For the period between the 2nd landlord buying the property and my eviction, the deposit was not protected, nor I have received the prescribed information about the 2nd landlord. I have written confirmation about this from the scheme, it's there in in black and white in their T&C and the statute (The Housing (Tenancy Deposits) (Prescribed Information) Order 2007). As a result, the deposit protection scheme told me that I was not entitled to use their ADR to claim my deposit back from them (otherwise I would have done it immediately). I have also written confirmation from all the other schemes that my deposit was never protected with them either.
There are no legitimate deductions from my deposit. I did not cause any damage to the property (and there never was a check-in inventory in the first place). I did not have any rent arrears either. The lettings agent tried at first to claim that I did, but I can prove that no rent was due when I was forcibly evicted. And in any way, the amount alleged by the agent was less that the deposit but they didn't even return the undisputed part of the deposit. To the best of my knowledge, the landlord did not dispute the deposit and it appears that the lettings agent just pocketed the money.
The lettings agent did not contact the deposit protection scheme to inform them that the tenancy has ended as far as I can tell. I wrote to them (the scheme) and complained but they fobbed me off saying that they can only receive instructions from the member agent or landlord. Fair enough, but this leaves the door open to unscrupulous agents and landlords with no recourse for the tenant.
This time, I intent to send a letter before action to both the lettings agent and the landlord. I will ask for my deposit back plus 8% interest (since it's due for a long time, the interest accrued is a big chunk). I will include a calculation of the interest so far and the daily rate. I will mention also the non protection of the deposit, even though I know it's more likely that I won't be able to bring this to the small claims track (and can't afford at the moment the court fees for the other way). Both of them are liable for the non protection (see Draycott v Hannells Letting Limited). Obviously, I will send 2 copies to each, from different post offices and with proof of postage.
The agent and the landlord addresses fall in different county court regions. If I make a claim against both of them jointly, where will the hearing take place? Also, I have downloaded a few templates to prepare the letter, but they have differences. The one from Shelter, mentions that “You must attach and list the evidence you intend to rely on in court”, while the others (from CAB, Which, etc) don't. Do I have to include all the evidence in the letter before action? Any other suggestions on how to do this?
The tenancy started after 2007, in England & Wales. I paid a deposit to the lettings agent that was managing the tenancy and initially it was protected with an insurance scheme (so the agent kept the amount). During the tenancy, the property was bought by a new landlord, who a few days later evicted me illegally. This happened around 2 years ago, I've made a different thread about it and I'm still fighting to get him prosecuted for this.
I've written to the lettings agent asking for my deposit back, shortly after the eviction and sever times later. They ignored me so far, with BS excuses. I have not written to the second landlord, I didn't felt comfortable dealing with him directly (for obvious reasons).
For the period between the 2nd landlord buying the property and my eviction, the deposit was not protected, nor I have received the prescribed information about the 2nd landlord. I have written confirmation about this from the scheme, it's there in in black and white in their T&C and the statute (The Housing (Tenancy Deposits) (Prescribed Information) Order 2007). As a result, the deposit protection scheme told me that I was not entitled to use their ADR to claim my deposit back from them (otherwise I would have done it immediately). I have also written confirmation from all the other schemes that my deposit was never protected with them either.
There are no legitimate deductions from my deposit. I did not cause any damage to the property (and there never was a check-in inventory in the first place). I did not have any rent arrears either. The lettings agent tried at first to claim that I did, but I can prove that no rent was due when I was forcibly evicted. And in any way, the amount alleged by the agent was less that the deposit but they didn't even return the undisputed part of the deposit. To the best of my knowledge, the landlord did not dispute the deposit and it appears that the lettings agent just pocketed the money.
The lettings agent did not contact the deposit protection scheme to inform them that the tenancy has ended as far as I can tell. I wrote to them (the scheme) and complained but they fobbed me off saying that they can only receive instructions from the member agent or landlord. Fair enough, but this leaves the door open to unscrupulous agents and landlords with no recourse for the tenant.
This time, I intent to send a letter before action to both the lettings agent and the landlord. I will ask for my deposit back plus 8% interest (since it's due for a long time, the interest accrued is a big chunk). I will include a calculation of the interest so far and the daily rate. I will mention also the non protection of the deposit, even though I know it's more likely that I won't be able to bring this to the small claims track (and can't afford at the moment the court fees for the other way). Both of them are liable for the non protection (see Draycott v Hannells Letting Limited). Obviously, I will send 2 copies to each, from different post offices and with proof of postage.
The agent and the landlord addresses fall in different county court regions. If I make a claim against both of them jointly, where will the hearing take place? Also, I have downloaded a few templates to prepare the letter, but they have differences. The one from Shelter, mentions that “You must attach and list the evidence you intend to rely on in court”, while the others (from CAB, Which, etc) don't. Do I have to include all the evidence in the letter before action? Any other suggestions on how to do this?
You wanna hear about my new obsession?
I'm riding high upon a deep recession...
I'm riding high upon a deep recession...
0
Comments
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Have you contacted the first landlord? I.e. the one you actually have a contract with? It is them that have the legal liability over your deposit, I think...0
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I've made a different thread about it and I'm still fighting to get him prosecuted for this.
I'd love to hear an update on how this is going too. Dreadful situation, especially with the police assisting an illegal eviction.
Can we get a time line of what's happened since your last post on 03-06-2013?
I must commend you on your evidence collecting, proof of postage on everything, very good
*Assuming you're in England or Wales.0 -
Have you contacted the first landlord? I.e. the one you actually have a contract with? It is them that have the legal liability over your deposit, I think...
When the first landlord sold the property, the tenancy was assigned to the second one and the responsibility was delegated as well.
I will write in more details in the other thread when I'll have more news, but in short: I gave a statement and evicence, he was interviewed and admitted most of my allegations and now I'm waiting for their decision on if they'll go ahead and prosecute.SerialRenter wrote: »Can we get a time line of what's happened since your last post on 03-06-2013?
Back to the letter before action, now. How should I draft it, do I write 2 separate letters (one to agent, one to LL) with different wording or a single letter with both their names jointly on it?You wanna hear about my new obsession?
I'm riding high upon a deep recession...0 -
No. The new LL took on all tenancy responsibilities.Have you contacted the first landlord? I.e. the one you actually have a contract with? It is them that have the legal liability over your deposit, I think...
Why on earth have you not been writing to your (new) LL?
HE is responsible. HE is the one you should sue, so HE is the one to write to (but yes, a joint action with the agents is wise).
Write your letter before action. Write "Without Prejudice' at the top of the letter. To be honest (and I know you will not like this) I would forget the interest charges etc. Just go for the deposit itself. That way you might get it as opposd to aggravating the LL further and getting a refusal.
If you were happy to go to court I might advise differently, but since you are relucatnt to do so, then just getting the deposit back will be a success.0 -
It's probably a long shot, but have you checked whether the LA is a member of ARLA, NALS or TPOS?0
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No. The new LL took on all tenancy responsibilities.
Why on earth have you not been writing to your (new) LL?
HE is responsible. HE is the one you should sue, so HE is the one to write to (but yes, a joint action with the agents is wise).
Write your letter before action. Write "Without Prejudice' at the top of the letter. To be honest (and I know you will not like this) I would forget the interest charges etc. Just go for the deposit itself. That way you might get it as opposd to aggravating the LL further and getting a refusal.
If you were happy to go to court I might advise differently, but since you are relucatnt to do so, then just getting the deposit back will be a success.
Your letter before action should not be marked 'without prejudice'. 'Without prejudice' is only appropriate if you are making an offer to settlement, which you do not want a court to know about if the offer is not accepted.
A letter before action is a requirement to make sue that the other person knows what you are claiming, and why, and you may well want the court to know about it as it shows that you have followed the right procedure and that you have given the other party the opportunity to resolve issues without going to court.All posts are my personal opinion, not formal advice Always get proper, professional advice (particularly about anything legal!)0 -
True. My reasoning was that if the OP does subsequently go to court he may wish to then claim the interest. Thus the 'offer' to accept the deposit without interest should be without prohudice to any subsequent claim.
A letter market 'without prejudice' can still be submitted to the court (ie here to show that a 'Letter Before Action' was sent) but the offer within it would be ignored by the court.
I think!0 -
No.once it is shown to the court, it is shown to the court.
If the Op wants to offer to accept just the deposit, without the interest, then that can be in a 'without prejudice' letter, but that should be serparate from the letter before action.All posts are my personal opinion, not formal advice Always get proper, professional advice (particularly about anything legal!)0 -
Interests are to be claimed in court, and for the court to decide on. They are not part of the debt per se.
I don't think there is a need to mention interests in a letter before action.
Perhaps one could say that if payment is not made then court proceedings would seek the deposit, costs, and interests (which is of course standard but can help the debtor see reason).0 -
A letter before action is a requirement to make sue that the other person knows what you are claiming, and why, and you may well want the court to know about it as it shows that you have followed the right procedure and that you have given the other party the opportunity to resolve issues without going to court.
Exactly. It is a legal requirement to send the letter before action, to satisfy the court that you have tried to resolve the issue amicably. Writing "without prejudice" on it is completely pointless.It's probably a long shot, but have you checked whether the LA is a member of ARLA, NALS or TPOS?
They are a member of TPOS but not NALS. They used to be a member of ARLA, but I just checked again in ARLA's website and they're not listed there. The last letter I got from the agent though, a couple months ago still has the ARLA logo. (scratching head) I did contact ARLA last much earlier anyway, they advised me to complain internally to the agent first and get back to them only after exhausting the LA's complaints procedure. I did, the agent didn't reply at all and I left it there because ARLA didn't strike me as very interested.
I will send a complaint to TPOS now, though.Why on earth have you not been writing to your (new) LL?
If you were happy to go to court I might advise differently, but since you are relucatnt to do so, then just getting the deposit back will be a success.
I think it's kind of obvious why, the LA is in actual possesion of the money and I preferred to deal with the LL through the criminal court.You wanna hear about my new obsession?
I'm riding high upon a deep recession...0
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