Landlord refusing to return TDS protected deposit after 3 months - court claim?

dwmh

We had a protected tenancy deposit (TDS) at our former flat, but we missed the 3-month deadline to raise a dispute about returning our deposit when we moved out. We immediately requested our deposit back from the landlord. However, the agency told us they needed to wait for the landlord to make a cost claim against our deposit, without specifying the amount of the claim or any details. There was no progress and after three months of the end of the tenancy had passed, the agency finally made a cost claim (£950, against our deposit of £1425).

Only then did we realise that we should have raised a dispute with TDS, not with the landlord. This came as a shock to us (not least because we had only moved to the UK in 2018 and came from a country where the burden of action to return a deposit per default lies with the landlord).

The landlord's massive cost claim against our deposit is almost certainly fraudulent. It mostly covers wear and tear, and there is no evidence from the check-out report. The cost claim can easily be refuted. Therefore, we of course want to dispute the landlord's claim and insist on the full return of our deposit.

However, given the 3-months deadline of our TDS-protected deposit scheme has passed, I am not sure about our options now. We would be more than happy to take court action and make a small claim. However, on the HM Courts & Tribunals website it says "You cannot use MCOL [Money Claim Online] to make a claim against: claims relating to the Tenancy Deposit Scheme should not be issued via MCOL". What other options would be available?

I saw in other forum posts here that people sometimes missed the 3-months deadline for protected deposits. And I guess this is a common issue in particular for people not familiar with the UK (landlord-friendly) regulation. Therefore, I would be grateful to gather some practical advise if this situation occurs, such as in this case.

dimbo61

Contact the DPS people and tell them you have not received your deposit back.
The Landlord should return the deposit within 10 working days or give reasons why he wants to deduct money from the deposit.
You should go on the shelter website or call them re " Letter before action "
Good luck 

dwmh

Thank you! No luck with the DPS: "We are only able to consider disputes sent to us within 3 months of the end of the tenancy. At this stage, you may wish to seek legal advice from a solicitor or assistance from your local Citizens Advice Bureau. I am sorry that we are unable to help you."

I checked on the shelter website but I think the information mostly refers to court action for unprotected deposits, right?

greatcrested

You can make a claim via Moneyclaim online.

The Gov website is basically saying that the normal and preferred process you should use is via the deposit scheme. The schemes were set up for this purpose and they want to discourage people from clogging up the courts.

However legally you can still use MCOL, and since the scheme won't help, you should do that.

My guess is that the judge will be disappointed that you left it beyond the 3 month time limit, but even more annoyed with the LL for dragging things out so long, especially if you can show that you requested your deposit back from him shortly after the tenancy ended.

macman

You waited more than 3 months to reclaim a deposit of £1425?

steampowered

There is a difference between claims for a refund of the deposit, and claims for the court to award a penalty on the landlord for not protecting the deposit.

Claims for the penalty cannot be issued through MCOL. They must instead be issued through a more complicated process known as the "Part 8" procedure, because that is required by statute for the judge to have jurisdiction to award the penalty. That's why the MCOL guidance is funny about it.

That's not an issue in your case. You are not claiming for the court to penalise the landlord for failing to protect the deposit.

You can absolutely issue a claim against the landlord for return of your deposit via MCOL. Send a formal letter before action informing the landlord you plan to issue a court claim if the deposit is not refunded within 14 days, then go ahead and issue your claim if he refuses.

The DPS should refund the undisputed £475, so you are suing the landlord for £950.

pramsay13

Surely the DPS will be in touch with the OP to say the landlord is suggesting a return of £475 and do you want to dispute it?
Or has that happened and the OP has run out of time to dispute it?

dwmh

Many thanks for your kind help! We will use MCOL (after the letter before action, on which Citizen Advice has also provided us with helpful advice).

The DPS has never been in touch with us. We were deceived past the 3 month deadline by the landlord/agency always sounding like a final claim on the deposit was just around the corner in their emails. We sent out at least half a dozen emails urgently requesting them to return the deposit. But we mistakenly assumed that raising a TDS dispute on an *unknown* cost claim was not necessary as the deposit is "protected". Now we know better...

steampowered

pramsay13 said:

Surely the DPS will be in touch with the OP to say the landlord is suggesting a return of £475 and do you want to dispute it?
Or has that happened and the OP has run out of time to dispute it?

It sounds like a matter of the TDS simply refusing to do anything because it is more than 3 months from the end of the tenancy. The TDS rules suggest that if no claim has been submitted after 3 months from the end of the tenancy, they literally just hold onto the money until both parties agree or go to court (https://www.tenancydepositscheme.com/wp-content/uploads/2017/09/TDS-Rules-for-the-Independent-Resolution-of-Tenancy-Deposit-Disputes.pdf)

"No application for ADR may be submitted to TDS later than 3 months after the end of the tenancy. If no claim for ADR has been submitted within 3 months after the end of the tenancy, the parties will need to negotiate a settlement or use some other means of resolving their dispute (for example, court proceedings)."

Pretty pathetic if you ask me.

Thankfully, the TDS rules also say that:

"The Member and the Tenant are not obliged to use the ADR process and can choose to go to court to resolve a Dispute."

pramsay13

steampowered said:

pramsay13 said:

Surely the DPS will be in touch with the OP to say the landlord is suggesting a return of £475 and do you want to dispute it?
Or has that happened and the OP has run out of time to dispute it?

It sounds like a matter of the TDS simply refusing to do anything because it is more than 3 months from the end of the tenancy. The TDS rules suggest that if no claim has been submitted after 3 months from the end of the tenancy, they literally just hold onto the money until both parties agree or go to court (https://www.tenancydepositscheme.com/wp-content/uploads/2017/09/TDS-Rules-for-the-Independent-Resolution-of-Tenancy-Deposit-Disputes.pdf)

"No application for ADR may be submitted to TDS later than 3 months after the end of the tenancy. If no claim for ADR has been submitted within 3 months after the end of the tenancy, the parties will need to negotiate a settlement or use some other means of resolving their dispute (for example, court proceedings)."

Pretty pathetic if you ask me.

Thankfully, the TDS rules also say that:

"The Member and the Tenant are not obliged to use the ADR process and can choose to go to court to resolve a Dispute."

That does seem strange. Surely it's not in the landlord's interests to go beyond the three months either though as it is unlikely a tenant will just agree to a hefty deduction and therefore some other form of dispute resolution is required.

anselld

pramsay13 said:

steampowered said:

pramsay13 said:

Surely the DPS will be in touch with the OP to say the landlord is suggesting a return of £475 and do you want to dispute it?
Or has that happened and the OP has run out of time to dispute it?

It sounds like a matter of the TDS simply refusing to do anything because it is more than 3 months from the end of the tenancy. The TDS rules suggest that if no claim has been submitted after 3 months from the end of the tenancy, they literally just hold onto the money until both parties agree or go to court (https://www.tenancydepositscheme.com/wp-content/uploads/2017/09/TDS-Rules-for-the-Independent-Resolution-of-Tenancy-Deposit-Disputes.pdf)

"No application for ADR may be submitted to TDS later than 3 months after the end of the tenancy. If no claim for ADR has been submitted within 3 months after the end of the tenancy, the parties will need to negotiate a settlement or use some other means of resolving their dispute (for example, court proceedings)."

Pretty pathetic if you ask me.

Thankfully, the TDS rules also say that:

"The Member and the Tenant are not obliged to use the ADR process and can choose to go to court to resolve a Dispute."

That does seem strange. Surely it's not in the landlord's interests to go beyond the three months either though as it is unlikely a tenant will just agree to a hefty deduction and therefore some other form of dispute resolution is required.

It is probably TDS insured where the Landlord retains the money, not Custodial.  Therefore in the absence of any action the money will stay with the Landlord.