TDS Questions

teeni

Notlob wrote: »

Teeni,

I think we all agree that the legislation is poorly drafted and I realised early on that case law will need to cross T's and dot I's.

I am though surprised at the ruling and suspect that this one case will not be the definitive test case.

Can I refer you to section 214 (2)(a) - is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit

Section 213(6)(a) states - in the prescribed form or in a form substantially to the same effect.

To me, I would interpret that as long as the Prescribed Info has been issued prior to the case going to court, albeit after 14 days of deposit receipt, it will protect the LL from the fine.

Notlob

I am quite sure that lots more case law will follow that will clarify matters.

section 213(6) (b)states "within the period of 14 days beginning with the date on which the deposit is received by the landlord.

This is then referred to in s214 (4) which states the court must also order the landlord to pay a fine of three times the deposit. There does not appear to be anything the allows the court not to award this fine because the deposit has been placed in a scheme even if it is late.

s214(2) (a) is satisfied that the initial requirements of the scheme are complied with that you refer to , I would look at s213 (3)

Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.

there fore i would consider that if the deposit is not placed in a scheme with in 14 days it does not meet the requirements of the scheme there fore the fine should be granted.

It is going to be very interesting to see how the courts deal with this legislation, it does seem very harsh, and I beleive that the bad landlords out there will not pay fines even if awarded. ther is a lot of disagreement within my own firm on this matter with all the solicitors and case workers having their own opinion.

I can only go on the cases i have dealt with which is why i really would be interested to have the opinion of a judge on this legislation.

teeni

prudryden wrote: »

T - Interested in your interpretation here. What do you think?

(9) In this Chapter—
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies, and

i believe that the ll would be fined and then have to take action against the agent for failing to do his job properly. But i am open as always to a pursuasive argument to the contrary.

Captain_Mainwaring_2

section 213(6) (b)states "within the period of 14 days beginning with the date on which the deposit is received by the landlord.

There is your get out.

teeni

Captain_Mainwaring wrote: »

There is your get out.

sorry whose get out.

Captain_Mainwaring_2

teeni wrote: »

sorry whose get out.

It would appear to imply that if the landlord can show that the deposit was still with a third party then his liability is limited.

Anyway you are the housing advisor, you should be telling me!

prudryden

There is also a possibility that a tenant can only get a court order to (1) require safeguard of deposit or (2) to receive prescribed information on deposit. A court can only issue a court order if these 2 items haven't been complied with. If LL has already complied, albeit late, then the court has nothing to issue a court order about. Seemingly, a court can only grant a penalty after a court order has been issued requiring the above. However, since the court can't issue an order against something that has already been done and there has been no injury, it follows that it can not issue a penalty.

Any comments on the above hypothetical scenario?

Notlob

prudryden wrote: »

Housing Act 2004
Section 212

(9) In this Chapter—
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies

I think you will find this is a general reference as a number of people could be acting on behalf of the landlord during a tenancy. It is not saying the LL is mitigating liability because someone other than the LL did/didn't do something.

Section 214 (4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order. - This is a specific reference to the LL being libel. It does not state the person who received the deposit must be fined!

Captain_Mainwaring_2

Notlob wrote: »

prudryden wrote: »

Housing Act 2004
Section 212

(9) In this Chapter—
(a) references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies quote]

I think you will find this is a general reference as a number of people could be acting on behalf of the landlord during a tenancy. It is not saying the LL is mitigating liability because someone other than the LL did/didn't do something.

Section 214 (4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order. - This is a specific reference to the LL being libel. It does not state the person who received the deposit must be fined!

but if the agent didn't hand it over...

section 213(6) (b)states "within the period of 14 days beginning with the date on which the deposit is received by the landlord.

neverdespairgirl

Captain_Mainwaring wrote: »

Notlob wrote: »

but if the agent didn't hand it over...

section 213(6) (b)states "within the period of 14 days beginning with the date on which the deposit is received by the landlord.

it looks as if the definition section says that LL includes his agents.

prudryden

neverdespairgirl wrote: »

Captain_Mainwaring wrote: »

it looks as if the definition section says that LL includes his agents.

There seems to be some disagreement and question as to whether the Law of Agencies applies in the case of tenancy deposit schemes because of the way the act is worded. There are some other arguments, e.g. the legal role and definition of a stakeholder and some others. What we need is a case precident on when a LL or agent has complied with the regs but has been late maybe because of reasons beyond their control.