TDS Landlord or Agent

[Loki117]

Afternoon all,

After 7 months of fighting I have finally managed to get my old L to court with regards to failure to supply prescribed information from the TDS. My L has lodged defence that the Agent should have done it as he was paying them £120 a month to do so.

Should i have lodged my case against the A and not the L? The L's name is on the AST. I never found out about prescribed information until I tried to have a dispute sent to the TDS at which point they rejected it saying the A was unable to supply the prescribed information that they sent me. I do have a certificate that it was secured but seeminly there should have been some details terms and condition documents with it.

My question is should I have persued the A for non complience instead of the L?

[Pelican eats pigeon]

His defence is not valid. You have a contract with L, hence you were correct to pursue L. If it is A's fault rather than L's, L should pursue A, as he has a contract with them.

[Planner]

Actually, I think it would depend on the wording of the agreement between the agent and the landlord, as the wording in the act does no specifically say its the landlords responsibility.

I generally advise taking both the agent and the landlord to court (the cost is the same), that way you cant get these his fault her fault their fault arguments.

[Pelican eats pigeon]

But since the the tenant has no agreement with the agent, what grounds are there for T to take A to court?

[agent46]

It is my opinion it is at strongly arguable that the person who receives the deposit is the person obliged to protect it and to also serve the prescribed information ie: if the LA receives the money, then the LA is the defendant in any action for non-compliance with TDP.

If you refer to s.213 and s.214, you will see that the the terms "person" and "landlord" are used interchangeably. Very poor drafting? Or is there some hidden meaning in this?

However, s.212(9) provides:

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,

But if you also refer to s.214(3) and s.214(4), you will notice that in s.213(3) the term "person" is used in relation to the duty on the court to order a deposit to be repaid/paid into a scheme and then in s.214(4), the term "landlord" is used in relation to the duty on the court to order the payment of 3X the sum of the deposit.

What is the conclusion to be reached from all of the above? I would say that the court could potentially go either way on this issue. They could apply the usual agent/principal analysis to the situation ie: the LA is, to all intents and purposes, carrying out the acts of the LL, so the LL is the defendant and not the LA and any loss suffered by the LL is a matter for him to take up with the LA, or the court could place great emphasis on s.212(9) and hold that the LA is the LL for the purposes of the special legislative regime imposed by the Act.

My personal view is that where the deposit was intially paid to a LA, then they, by s.212(9) become the LL for the specific purposes of TDP and they could and should be the sole defendant; however, I would say, just to be on the safe side, then they should be named as joint defendants with the LL.

[Loki117]

Yup I did indeed read that wording that the A and L where interchanged. My argument is that the Agency where collecting the money on behalf of the landlord so although they took the money they where working on his behalf so the buck ends with him?

[Pelican eats pigeon]

Interesting. I have not read s212 yet. In that case, I shall keep my mouth shut on this. One more to add to my growing list of reasons that s213-215 are hideously drafted.

[agent46]

Yup I did indeed read that wording that the A and L where interchanged. My argument is that the Agency where collecting the money on behalf of the landlord so although they took the money they where working on his behalf so the buck ends with him?


If the LL has issued a defence to the effect that the LA received the deposit and therefore he (the LL) is not the defendant, then I believe that defence has a good chance of success. He could also potentially succeed in an application to have your claim struck out (ie: the matter would never even get to court). You would be advised to amend your claim to name both LA and LL as defendants.

Who received the deposit?

[agent46]

Actually, I think it would depend on the wording of the agreement between the agent and the landlord, as the wording in the act does no specifically say its the landlords responsibility.

Vis a vis the tenant, there is little chance of the court deciding liability to T between the LL and LA on the basis of a private agreement between them to which the tenant is not a party. The matter will be decided on the basis of the arguments outlined in my other post (ie: either agent/principal or s.212(9))


I generally advise taking both the agent and the landlord to court (the cost is the same), that way you cant get these his fault her fault their fault arguments.

You should be careful giving such advice, because although I think it is the correct approach (given the difficulties outlined above), as a general rule one should not just sue other parties willy-nilly using a scattergun approach, otherwise one day, one of the recipients of your advice might find themselves facing a order for costs (especially if Pt8 proceedings are used and the defendant has professional legal representation). The extra costs of issue are indeed zero, but the costs at the sticky, expensive end of the litigation could easily give someone a nasty surprise.

[Loki117]

The deposit was given to the landlords agent. The wording of 212 (9) actually works in both ways.... it could also be read that failure by the Landlord (LA) gives claim to liability on the Landlords (L) part as they for the purpose of this chapter are both one in the same entity no?

[agent46]

The deposit was given to the landlords agent. The wording of 212 (9) actually works in both ways.... it could also be read that failure by the Landlord (LA) gives claim to liability on the Landlords (L) part as they for the purpose of this chapter are both one in the same entity no?

Confused.

LA = Letting Agent

LL = Landlord

[Planner]

Vis a vis the tenant, there is little chance of the court deciding liability to T between the LL and LA on the basis of a private agreement between them to which the tenant is not a party. The matter will be decided on the basis of the arguments outlined in my other post (ie: either agent/principal or s.212(9))



You should be careful giving such advice, because although I think it is the correct approach (given the difficulties outlined above), as a general rule one should not just sue other parties willy-nilly using a scattergun approach, otherwise one day, one of the recipients of your advice might find themselves facing a order for costs (especially if Pt8 proceedings are used and the defendant has professional legal representation). The extra costs of issue are indeed zero, but the costs at the sticky, expensive end of the litigation could easily give someone a nasty surprise.

Told me didnt it?!

[agent46]

Told me didnt it?!

Sorry, I didn't mean it to sound dictatorial.

More emoticions needed next time. :)

[Planner]

Sorry, I didn't mean it to sound dictatorial.

More emoticions needed next time. :)


Thats okay agent. Im use to your style...or lack thereof!

[Loki117]

Confused.

LA = Letting Agent

LL = Landlord


Sorry agent what I was trying to say was this for example I give the LA the deposit and they dont comply and because the word "Landlord" in the housing act refers to pretty much anyone who has envolvement with the tenancy then that could mean I can hold the Landlord liable?

[Loki117]

The item below is soooo ambiguos! It sounds like they where intending to say that even if someone has employed a 3rd party to handle the deposit then they (the landlord) can still be held responsible but instead what it looks like is that the other person (the person the landlord has employed) can be held responsible. I think its very much open to interpritation. I dont think it makes a solid claim in ether way. Does anyone agree? or am I on my own here?


(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

[jeffrey]

The item below is soooo ambiguos! It sounds like they where intending to say that even if someone has employed a 3rd party to handle the deposit then they (the landlord) can still be held responsible but instead what it looks like is that the other person (the person the landlord has employed) can be held responsible. I think its very much open to interpritation. I dont think it makes a solid claim in ether way. Does anyone agree? or am I on my own here?


(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

It cannot really mean that acts of third party contractor/agent are imputed to L (because that's already true, under English law).
It must therefore mean that duties of L under the 2004 Act bind his contractor/agent too.

[Loki117]

Does that mean that as the LA is a "Legal Agent" of the LL then I have every right to persue the money from the LL? The case is pretty tricky because they did provide a certificate they just didnt supply the documents which tell me what to do in the case of a dispute etc etc so I think the case could be pretty confusing for the judge.

Thoughts?

[jeffrey]

Does that mean that as the LA is a "Legal Agent" of the LL then I have every right to persue the money from the LL? The case is pretty tricky because they did provide a certificate they just didnt supply the documents which tell me what to do in the case of a dispute etc etc so I think the case could be pretty confusing for the judge.

Thoughts?

My thoughts are that it's confusing! The 2004 Act does not make A liable under Letting Contract- only for L's statutory duties under the Act.

[Loki117]

My thoughts are that it's confusing! The 2004 Act does not make A liable under Letting Contract- only for L's statutory duties under the Act.

Ok so it sounds like I would have had a harder job tying A to it so probably best to keep persuin LL and hope the judge see's the ruling my way?

[agent46]

Ok so it sounds like I would have had a harder job tying A to it so probably best to keep persuin LL and hope the judge see's the ruling my way?

Bad idea, IMHO.

I would advise joining the agent as a second defendant and amending your particulars of claim to plead your case against them in the alternative (in other words, "if the landlord isn't liable, then the letting agent is").

[Loki117]

Bad idea, IMHO.

I would advise joining the agent as a second defendant and amending your particulars of claim to plead your case against them in the alternative (in other words, "if the landlord isn't liable, then the letting agent is").

Hey Agent I would but this would mean I could end up with the bill for a legal team which the Agent will no doubt involve. The deposit was £1800 making the claim somewhere close to £7,200 i've already got some of this back to get the claim down to just over 5k but I still dont fancy paying all of it to an agents lawyer?

** Also I should point out that this case has actually gone all the way through from start to Baliff but the LL claims he never got the judgement and is no longer present at the address so has asked for the case to be sent back to court. Can I still ammend the case at this point? **

[Paragon]

For what it is worth: My agent, as the Deposit Holder, explained to me that it is their responsibility and that they would be liable if they didn't protect the deposit. They are a national/international firm with their own "in house" legal department.

On the prescribed information, it gives the address of the Deposit Holder (the Agent), the telephone number of the Deposit Holder, and email address of the Deposit Holder. It further states substantially that "The holder of the Deposit will register the Deposit with and provide other required information to the TDS within 14 days of the commencement of the Tencancy or th3e taking of the Deposit whichever is earlier and provide proof to the Tenant of compliance.

This document is countersigned and initialed on each page by the Tenants and can be signed by either the LL or the Agent.

It seems to me then that the Tenants and the Agent have thusly agreed that the Deposit Holder will register and provide the information - not the LL.

Surely, the tenancy business was easier when it was Lords and Serfs.

[Loki117]

For what it is worth: My agent, as the Deposit Holder, explained to me that it is their responsibility and that they would be liable if they didn't protect the deposit. They are a national/international firm with their own "in house" legal department.

On the prescribed information, it gives the address of the Deposit Holder (the Agent), the telephone number of the Deposit Holder, and email address of the Deposit Holder. It further states substantially that "The holder of the Deposit will register the Deposit with and provide other required information to the TDS within 14 days of the commencement of the Tencancy or th3e taking of the Deposit whichever is earlier and provide proof to the Tenant of compliance.

This document is countersigned and initialed on each page by the Tenants and can be signed by either the LL or the Agent.

It seems to me then that the Tenants and the Agent have thusly agreed that the Deposit Holder will register and provide the information - not the LL.

Surely, the tenancy business was easier when it was Lords and Serfs.



Agreed. The LA is liable but to whom? my contract was with the LL and the deposit was for a property which he owned. His choice was to ask an agent to handle his TDS complience matter they failed at doing there job meaning the contract that they entred into with the LL was broken however it was the LL's responsibility to ensure that the deposit was secured for my tenancy with him so surely I would chase him and he would chase the LA?

[agent46]

Hey Agent I would but this would mean I could end up with the bill for a legal team which the Agent will no doubt involve. The deposit was £1800 making the claim somewhere close to £7,200 i've already got some of this back to get the claim down to just over 5k but I still dont fancy paying all of it to an agents lawyer?

I can see your point, but it is even more pointless wasting money on legal action against what might well turn out to be the wrong defendant.

Some questions:

1) Are you representing yourself?

2) If not, have your lawyers spotted this issue (and if so, what did they advise)?

3) Is this a fast track claim or is it on the small claims track?




** Also I should point out that this case has actually gone all the way through from start to Baliff but the LL claims he never got the judgement and is no longer present at the address so has asked for the case to be sent back to court. Can I still ammend the case at this point? **

Now he tells me ;)

Your LL appears to be making an application to set aside judgement in default. This will not take the form of a hearing of the deposit protection case itself, but will simply address the questions: (1) Does the LL have a realistic prospect of defending the claim? (2) Was there some good reason why he didn't defend it in the first place? If the answer to both of those questions is "yes" (and based on what you have said, it could well be), then effectively the case goes back a few stages and a new hearing will be ordered. You will then be able to apply to amend your claim to include the letting agent. You will need to make an application to the court because permission is required, however, you will probably get permission.

[jeffrey]

Agreed. The LA is liable but to whom? my contract was with the LL and the deposit was for a property which he owned. His choice was to ask an agent to handle his TDS complience matter they failed at doing there job meaning the contract that they entred into with the LL was broken however it was the LL's responsibility to ensure that the deposit was secured for my tenancy with him so surely I would chase him and he would chase the LA?

See post #19. L is liable to T for any breach of Letting Agreement. A isn't.
Both L and A might be liable to T for any breach of Housing Act 2004 duties.

[Loki117]

I can see your point, but it is even more pointless wasting money on legal action against what might well turn out to be the wrong defendant.

Some questions:

1) Are you representing yourself?

2) If not, have your lawyers spotted this issue (and if so, what did they advise)?

3) Is this a fast track claim or is it on the small claims track?

Hey Agent i'm representing myself it's on the small claims track so I understand this will be a max of a 5k payment. I understand the issue with the wrong defendant but it's my belief that the landlord is the last point of liability closest to me so he is who I should be persuing.

[Loki117]

See post #19. L is liable to T for any breach of Letting Agreement. A isn't.
Both L and A might be liable to T for any breach of Housing Act 2004 duties.

Hi Jeffrey I had a read but I didnt really understand. I thought that you where saying both of them are partially liable to me for the breach so even if the Lanlord is at fault in part this makes him a party to the breach? Surely part of the letting agreement now is that my deposit will be secured (as written in my AST) and as a result of this not being secured the L is at fault (breech of letting agreement)?

[agent46]

Hey Agent i'm representing myself it's on the small claims track so I understand this will be a max of a 5k payment. I understand the issue with the wrong defendant but it's my belief that the landlord is the last point of liability closest to me so he is who I should be persuing.

1) For the reasons outlined elsewhere in this thread, I think your belief is wrong.

2) Your concerns about the costs involved in joining the agent as a defendant are slightly misplaced because the costs recoverable on the small claims track are minimal. In theory, higher costs can be awarded, but this only happens if a litigant behaves unreasonably.

Obviously, it's up to you, and please feel free to ignore my advice, but I think you should claim against the agent.

[Loki117]

1) For the reasons outlined elsewhere in this thread, I think your belief is wrong.

2) Your concerns about the costs involved in joining the agent as a defendant are slightly misplaced because the costs recoverable on the small claims track are minimal. In theory, higher costs can be awarded, but this only happens if a litigant behaves unreasonably.

Obviously, it's up to you, and please feel free to ignore my advice, but I think you should claim against the agent.


Is it possible for me to have the claim ammended now that it has been passed through court and is being pushed back by the defendent?

I would be inclined to add the agent as at the end of the day I do acknowledge it was there fault for not securing it. Unfortunatly though I thought the Landlord was ultimatly liable as he was whom I had a contract with? Jeffrey you seem to be of the same mind set that I should add the Agent?

[agent46]

Is it possible for me to have the claim ammended now that it has been passed through court and is being pushed back by the defendent?




See below from post #25




Your LL appears to be making an application to set aside judgement in default. This will not take the form of a hearing of the deposit protection case itself, but will simply address the questions: (1) Does the LL have a realistic prospect of defending the claim? (2) Was there some good reason why he didn't defend it in the first place? If the answer to both of those questions is "yes" (and based on what you have said, it could well be), then effectively the case goes back a few stages and a new hearing will be ordered. You will then be able to apply to amend your claim to include the letting agent. You will need to make an application to the court because permission is required, however, you will probably get permission.

[Loki117]

See below from post #25


Excellent thanks Agent then in that case I shall await his judgement set aside application at which point I shall add the Agent in there and get somebody to admit Liability. I'll wait to see what his defence is though if I am actually able to have his application to be set aside thrown out though I shall go for that.

[agent46]

Excellent thanks Agent then in that case I shall await his judgement set aside application at which point I shall add the Agent in there and get somebody to admit Liability. I'll wait to see what his defence is though if I am actually able to have his application to be set aside thrown out though I shall go for that.


You may have misunderstood slightly. The case is, in effect, reactivated when the judgement is set aside, and it is then you would ask permission to join the letting agent. I suppose you could make an application to amend (ie: join the agent) within your response (your "defence") to the LL's application to set aside, although this would be quite an irregular way to go about it. You would, in effect, be saying to the court, "I don't agree that this judgement should be set aside, but if it is, then the claim should be amended to add the letting agent as a defendant"

[Loki117]

You may have misunderstood slightly. The case is, in effect, reactivated when the judgement is set aside, and it is then you would ask permission to join the letting agent. I suppose you could make an application to amend (ie: join the agent) within your response (your "defence") to the LL's application to set aside, although this would be quite an irregular way to go about it. You would, in effect, be saying to the court, "I don't agree that this judgement should be set aside, but if it is, then the claim should be amended to add the letting agent as a defendant"

Exactly as you said. My belief is that it shouldnt be set aside but if they do decide to on the grounds that it isnt his case then I think there is fair case to have the agent added as they might well be to blame.


Damn what a headache i'm now even doubting the fact that I have a case! I actually have a letter from the dispute service saying that the agent didnt comply with there rules or the housing act so surely I must have some case!

[Loki117]

i have a question regarding this.

If I chose to add the Agent on as a second defendent it goes to court and ether the agent or the landlord are found to have been at fault can the other party claim legal fee from me as they werent at fault?

Also since leaving the old property I have entered a new AST with a new agent. There contract HAS all the required clause as required by the TDS could I use this as a this is how it should have been done?

Also does anyone have a copy of all the required clauses that the TDS provides to its members? I cant get them as I am not a member and its pretty much what my case is based around.

[Loki117]

Interesting..... http://www.communities.gov.uk/housing/rentingandletting/privaterenting/tenancydepositprotection/let-only/

Good morning I just found the article above provided by the communities and local gouvernment website. I says


"b) Let-only agent, with agent tasked with acting on behalf of the landlord

Section 212(9) of the Housing Act states that references to a landlord in relation to any shorthold tenancy include references to a person acting on his behalf in connection with the tenancy. The landlord can therefore task an agent to act on his behalf in terms of protecting the deposit. If the arrangements between the agent and landlord are such that the let-only agent is contractually responsible for protecting the deposit on the landlord's behalf, then the agent would be responsible and is potentially liable to prosecution if he fails to do so (by the landlord). The landlord would be well advised to satisfy himself that the deposit has been protected, and that the statutory requirements have been complied with, so that he can take action against his agent if necessary (outside of the scheme).

Note that in a let-only scenario, the full value of the deposit must always be protected, even if the agent takes some fees off of the deposit for their services to the landlord."

The statment above (provided by an arm of our great gov ;) should be enough for me to produce in a court claim should it not? They seem to say that its the landlords duty to chase the agent not mine as I dont have the contract with them? What do you think?

[agent46]

Interesting..... http://www.communities.gov.uk/housing/rentingandletting/privaterenting/tenancydepositprotection/let-only/

Good morning I just found the article above provided by the communities and local gouvernment website. I says


"b) Let-only agent, with agent tasked with acting on behalf of the landlord

Section 212(9) of the Housing Act states that references to a landlord in relation to any shorthold tenancy include references to a person acting on his behalf in connection with the tenancy. The landlord can therefore task an agent to act on his behalf in terms of protecting the deposit. If the arrangements between the agent and landlord are such that the let-only agent is contractually responsible for protecting the deposit on the landlord's behalf, then the agent would be responsible and is potentially liable to prosecution if he fails to do so (by the landlord). The landlord would be well advised to satisfy himself that the deposit has been protected, and that the statutory requirements have been complied with, so that he can take action against his agent if necessary (outside of the scheme).
"

The statment above (provided by an arm of our great gov ;) should be enough for me to produce in a court claim should it not? They seem to say that its the landlords duty to chase the agent not mine as I dont have the contract with them? What do you think?

(1) The chances of the court deciding who is liable to the tenant on the basis of the contract between the LL and the LA are, in my view, slim. Imagine a situation where the T pays the deposit to the LA, and the LA then pays it onto the LL, who fails to protect the deposit and also disappears. It cannot be correct that the court would decide that the LA is not liable to protect the deposit and the T does not therefore have a remedy, simply because the LL agreed to take responsibility for/would not pay the LA to undertake that task.

(2) Govt guidance is exactly that, ie: a guide. You are quite at liberty to produce it, but if the judge believes it is incorrect, then, equally, he is quite at liberty to refuse to follow it.

(3) This is a minor point, but it demonstrates the calibre of the writer, and therefore, the weight that might be attached to the guidance. The guidance states "the agent would be responsible and is potentially liable to prosecution if he fails to do so (by the landlord)." This is such a howler (the use of the word "prosecution" in the context of an action for breach of contract/negligence) and suggests that the guidance was either written by a layperson or a hopeless in-house GLS (Govt Legal Service)* bod.

(4) You seem determined not to join the LA as a defendant and instead, will attempt to rely on legal argument in order to convince the judge that the LL is liable. I believe that even if you were represented by a decent barrister this would be a risky strategy, but as you are representing yourself, then it is positively reckless.



* The GLS (or, alternatively, the Crown Prosecution Service) is where lawyers end up when they can't get a pupillage or training contract in independent practice. In other words, they are not generally the shiniest apples on the legal system tree.

[Loki117]

Hi Agent,

I am not against adding the agent I am just scared to do so I think they may have a large legal team and may start making things very complex. I dont have a lawyer as I am defending the issues myself and I can't afford one. So I am looking for something indisputable which would allow me to concentrate the case on the landlord. He can persue with the agent afterwards. As you said though what I found was not correct and so I should probably just give up and add the agent.

Tom

[agent46]

I am not against adding the agent I am just scared to do so I think they may have a large legal team and may start making things very complex. I dont have a lawyer as I am defending the issues myself and I can't afford one. So I am looking for something indisputable which would allow me to concentrate the case on the landlord. He can persue with the agent afterwards.


As I've said elsewhere in this thread, if the matter is being dealt with on the Small Claims track, then they will not be able to recover their legal costs unless you act in an extremely unreasonable fashion.


I dont have a lawyer ...

Even more reason to avoid basing your case on sophisticated legal arguments. Make your case as simple as possible.


So I am looking for something indisputable which would allow me to concentrate the case on the landlord.

I think you are looking for something that doesn't exist.


As you said though what I found was not correct.

I'm not saying it is "wrong" as such, I am merely pointing out how the guidance looks to a lawyer and therefore, by extension, a judge.

As I've said elsewhere, the issue could be decided either way. I just don't think it is worth halving (or worse) your chances of success by concentrating solely on the LL.


... so I should probably just give up and add the agent.

Correct.

[Loki117]

guys I am filling out the N244 as we speak but dont know what I should place in section 10

"What information will you be relying on in support of your application"

I dont have any information I just want to add a new defendent? Any suggestions?

[agent46]

guys I am filling out the N244 as we speak but dont know what I should place in section 10

"What information will you be relying on in support of your application"

I dont have any information I just want to add a new defendent? Any suggestions?

Is this the response to the LL's application to set aside judgement in default, or are you making an application of your own?

[Loki117]

Is this the response to the LL's application to set aside judgement in default, or are you making an application of your own?

Just making an application on my own as I have yet to receive the application to set aside judgement. Also I have a small issue in that my deposit is £1800 + 600 of left over deposit still with the agent. This takes it way over the 5k limit given that the penulty for non complience is set @ 3 * + the dep is it possible for me to say I only want 5k to keep it in the small claims court and avoid possible lawyers fees?

Tom

[agent46]

Just making an application on my own as I have yet to receive the application to set aside judgement.

But what are you applying for?

I don't mean to sound bossy, but it would be really helpful if you could give fuller and clearer information as I'm quite busy, and regrettably I can't spare the time to keep asking further questions in clarification.


is it possible for me to say I only want 5k to keep it in the small claims court and avoid possible lawyers fees?


Not 100% sure, and I haven't got time to look into it at the moment unfortunately. It is possible to keep cases worth over £5k on the Small Claims track, but only if all parties to the action consent.

It certainly would not be possible to claim £5k in one action then claim the balance in another action. That would be an abuse of process.

You said elsewhere in this thread that the claim was already on (and had passed all the way through) the Small Claims track.

[Loki117]

But what are you applying for?

I don't mean to sound bossy, but it would be really helpful if you could give fuller and clearer information as I'm quite busy, and regrettably I can't spare the time to keep asking further questions in clarification.



Not 100% sure, and I haven't got time to look into it at the moment unfortunately. It is possible to keep cases worth over £5k on the Small Claims track, but only if all parties to the action consent.

It certainly would not be possible to claim £5k in one action then claim the balance in another action. That would be an abuse of process.

You said elsewhere in this thread that the claim was already on (and had passed all the way through) the Small Claims track.

Hi Agent sorry I am making a application to amend the details via a N244 and N1 I want to add the Agent in as the 2nd defendent and edit the details to be a bit more verbose so that the judge can hopfully preprep.

The claim was indeed already on and had gone all the way through money claims online @ £5610 however as the landlord is now pushing it back to court via a judgement to set aside this could start involving legal fees so I was thinking of requesting that the claim amount is dropped to £5000 in the N244 request I wouldnt be placing a further claim I would just be claiming £5000 however I think this may send a warning sign that I am unsure about the case as its an ovious tact to avoid the legal fees.

[agent46]

Hi Agent sorry I am applying for a amendement of details via a N244 and N1 I want to add the Agent in as the 2nd defendent and edit the details to be a bit more verbose so that the judge can hopfully preprep.

.

But at the moment there is no case to which you can add a 2nd defendant. The case is dead and buried until such time as the judgement is set aside. The judge could decide that eg: the LL is telling fibs about not receiving service of the claim and refuse to allow the application, in which case you would have wasted your money. If the LA has a decent lawyer then you also need to be very careful about making an application to add the LA as a 2nd defendant at this stage. They could defeat your application on the basis that they cannot be joined to an action which has already had judgement handed down, and, then because applications are not allocated to a track and the normal rules on costs apply, they could seek costs against you. A simple procedural mistake could end up costing your hundreds of pounds.

In summary, as I have already said, you add the LA as a 2nd defendant after the judgement has been set aside.

As to the prospects of the LL succeeding in their application. Application to set aside on the grounds of non-receipt of service is such a common ploy that judges can be quite cynical about these applications - they are the litigation version of "the dog ate my homework" excuse. Having said that, I must say that even though the judge usually knows the applicant is pulling the wool over their eyes, they tend to give them a large helping of the benefit of the doubt and allow the application to set aside, although they often do accompany their judgement with sarcastic comments about the "unfortunate unreliability" of the applicant's post etc.

[Loki117]

But at the moment there is no case to which you can add a 2nd defendant. The case is dead and buried until such time as the judgement is set aside. The judge could decide that eg: the LL is telling fibs about not receiving service of the claim and refuse to allow the application, in which case you would have wasted your money. You also need to be careful about making an application to add the LA as a 2nd defednant at this stage if the LA has a decent lawyer. This is because applications to set aside are not allocated to a track, and therefore the normal costs rules apply. They could defeat your application on the basis that they cannot be joined to an action which has already had judgement handed down, and then seek costs against you.

In summary, as I have already said, you add the LA as a 2nd defendant after the judgement has been set aside.

As to the prospects of the LL succeeding in their application. Application to set aside on the grounds of non-receipt of service is such a common ploy that judges can be quite cynical about these applications - they are the litigation version of "the dog ate my homework" excuse. Having said that, I must say that even though the judge usually knows the applicant is pulling the wool over their eyes, they tend to give them a large helping of the benefit of the doubt and allow the application to set aside, although they often do accompany their judgement with sarcastic comments about the "unfortunate unreliability" of the applicant's post etc.

Top stuff Agent I shall await the landlords documents and the judges ruling before sending anything to the court. It is stupid in that the landlord obviously received something as he was able to quote the claim number to the northampton county court when he called up to say he didnt get the judgement.... in saying that I shall wait and see what happens maybe he managed to get the info by speaking with the local warent office or something.

[Impartial Advice]

Hi everybody new to this and skeptical usually about DIY experts throwing their weight around in cyberspace with off the cuff advice but some good information here... congrats!

Very interested in this post. Have similar case (LL/LA responsibility dispute) and going to court on thursday with client. There are slightly more complications including claims of landlord residency but will, if time permits, try to update this thread after the case and give more information on the case.

[Loki117]

Hi everybody new to this and skeptical usually about DIY experts throwing their weight around in cyberspace with off the cuff advice but some good information here... congrats!

Very interested in this post. Have similar case (LL/LA responsibility dispute) and going to court on thursday with client. There are slightly more complications including claims of landlord residency but will, if time permits, try to update this thread after the case and give more information on the case.


Hi Impartial. Welcome to the thread I would be very interested to hear what you have to say about the issues as I am flying solo on it (with the help of LLZ of course) I shall wait to see how your case pans out on (Well I hope) and I will of course let people know how things go for me.

[Impartial Advice]

Landlord and agent responded by letter requesting hearing in their absence claiming defence of (among irrelvent things) the landlord being resident. They have been arguing just the oppisite for the last 2 months stating the AST exists (if landlord is resident cannot create AST)!!

Back from court. Judge ajourned for 14 days and is requesting LL & LA attend. Judge reluctant to impose sanction while landlord claiming to be resident.

Landlord stays at the property approx 3 days a month so will struggle to prove it is his 'main or only' residence.

The judge did not raise any issues abour who's responsibility it is after pointed out that clients contract with landlord via agency. Being clever I described it as 'taking your car to garage and it not being repaired properly. Claim is against garage owner not mechanic although the owner is welcome to sack the mechanic'. Went down OK.

Resume hearing in 14 days... will update if wanted??

[Loki117]

I would like an update if possible. I was looking for a decent analogy about who should be held responsible this would could do. Sounds like the judge is intent in hearing all sides of the case thought. I hope the residency issue is resolved.

[Loki117]

Guys I am looking for yet more information. I will be leaving the country in 95 days for a year and as such I really need this case to have been wrapped up before then.

Does anyone know how long it takes roughly

1) To have the judgement set aside? The court told me today a hearing date has not been set.

2) If the judge rules to have the judgement set aside how long it will take before I am given a court date?

3) Roughly how long away that court date normally is? 1 month 2 month a year?


If these dates look like they might run hugely beyond my exit date I thought of doing the following. Contact the agent and landlord asking them if the 3 of us can sit down and discuss a compromise. Lay down my documents showing them exactly where they have gone wrong let them know that I shall continue to persue the case but explain that I would be willing to settle it before the date? What do you think? Is this crazy showing them my hand before a court date?


Thanks in advance AGAIN for your help!

Tom

[Loki117]

Guys I'm on the scrounge for some more advice! I've contacted the agent and told them that the case against there landlord is under way for non compliance with tds and housing act and as such the landlord has said it was there responsibility. I have said I didn't want to drag this out any further and as such would the be willing to settle before being added to any actions. They said that they would and asked us to produce a sensible number. Now the deposit was £1800 * 3 + £1800 and court fees would be over 7K they have already given me what was an undisputed amount of 1200 back so are currently holding £600. To play fair is said how about 2400 as this is roughly the outstanding amount + 3 * the outstanding amount just outstanding not full deposit. They have said that this is way off the mark and have offered £1500 saying they will defend there non complience in court saying that the gournment was late with information and confusing.and that they have since rectified there process and are complying. Given that my tenancy started on april 26th 2007 is this likely to be a defence which would win? I did only sign the contract 3 weeks after the act was introduced. Thanks a bunch for your help in advance.

Loki

[agent46]

They have said that this is way off the mark and have offered £1500 saying they will defend there non complience in court saying that the gournment was late with information and confusing.

Although I would agree that some of the legislation is confusing, that is not a defence.


and that they have since rectified there process and are complying.

They could well suceed in this defence. A CC judge recently held that remedial/retrospective compliance with TDP is possible (as I had also advocated on here) and although his decision is not what is known as "binding authority", it could give an indication of the way the judicial wind is blowing, or at the very least shows that my "remedial/retrospective compliance" argument has legs. See: http://www.landlordzone.co.uk/forums/showthread.php?t=12842

As to whether you should accept the offer......The fact that they are making you an offer suggests either that they are not all that confident of their position or they don't want to waste time and energy on litigation. Therefore, I would try pushing them a bit further, but if necessary, settle for the £1500. As a negotiating point, you could inform the LA that should you win your case, the Court will award 3X deposit (ie: £5400), not 3X the un-refunded balance. Perhaps suggest a figure of around £3000 - £3500 (ie: leaving out the deposit already returned, slightly above half the value of the original claim for £5400 in respect of the 3X deposit sum).

However, a cautionary note - firstly, bear in mind that if you accept their offer, it will be a binding contract and you can't ask for more money later, or take the LA to court in respect of the same matter, and secondly, if you make a counter-offer, the LA is not obliged to keep the offer of £1500 open. Having said that, on the basis of the albeit limited information, it seems like the LA doesn't really fancy it, and is therefore amenable to settlement.

[Loki117]

Although I would agree that some of the legislation is confusing, that is not a defence.



They could well suceed in this defence. A CC judge recently held that remedial/retrospective compliance with TDP is possible (as I had also advocated on here) and although his decision is not what is known as "binding authority", it could give an indication of the way the judicial wind is blowing, or at the very least shows that my "remedial/retrospective compliance" argument has legs. See: http://www.landlordzone.co.uk/forums/showthread.php?t=12842

As to whether you should accept the offer......The fact that they are making you an offer suggests either that they are not all that confident of their position or they don't want to waste time and energy on litigation. Therefore, I would try pushing them a bit further, but if necessary, settle for the £1500. As a negotiating point, you could inform the LA that should you win your case, the Court will award 3X deposit (ie: £5400), not 3X the un-refunded balance. Perhaps suggest a figure of around £3000 - £3500 (ie: leaving out the deposit already returned, slightly above half the value of the original claim for £5400 in respect of the 3X deposit sum).

However, a cautionary note - firstly, bear in mind that if you accept their offer, it will be a binding contract and you can't ask for more money later, or take the LA to court in respect of the same matter, and secondly, if you make a counter-offer, the LA is not obliged to keep the offer of £1500 open. Having said that, on the basis of the albeit limited information, it seems like the LA doesn't really fancy it, and is therefore amenable to settlement.



Hi Agent thank you very much for your post.

The "remedial complience" is not in resepect to my deposit as I have already left the property. What they are saying is that since finding that they had a mistake all other tenancys have been delt with correctly. They actualy can't remedialy comply with my issues as it was failure to supply prescribed information within the time scales required (they still havent given me it) and missing clauses required by the TDS within there contracts.

The MD of the agency has admitted that they where not complient with the act in an email to me so they are on shakey ground on my belief.

I think I may contact them back making them aware that the information was avalible as of the 14th of March some month and 2 weeks before my tenancy so this is a large enough time scale to get in line.... I dont know I guess i'm just worried I shall stick to my guns for the £2500 and hope that they see sense.

[agent46]

The "remedial complience" is not in resepect to my deposit as I have already left the property. What they are saying is that since finding that they had a mistake all other tenancys have been delt with correctly. They actualy can't remedialy comply with my issues as it was failure to supply prescribed information within the time scales required (they still havent given me it) and missing clauses required by the TDS within there contracts.


Ah, I see. My apologies. However, the fact that you have left the property also means that you are on shaky ground in any event. I have heard of a decision made at CC level which held that an ex-tenant cannot claim in respect of non-compliance with TDP. I do not necessarily agree with that view when the deposit remains un-refunded, but there it is - yet more uncertainty.




I think I may contact them back making them aware that the information was avalible as of the 14th of March some month and 2 weeks before my tenancy so this is a large enough time scale to get in line....

Do not get bogged down in debates with the LA about whether or not the legislation/guidance was clear and/or published in good time. It is not a defence and any arguments that deal with anything other than the absolute position that the law must be obeyed from the very second it is in force are completely irrelevant and nothing but distracting.


I dont know I guess i'm just worried I shall stick to my guns for the £2500 and hope that they see sense.

£2500? Your claim is worth £5400 (3 X £1800) + whatever portion of the deposit is still unrefunded.

As I have indicated above, given the cracks in your claim against them, I think the LA's offer of £1500 is reasonable, however they probably don't know how strong their case is, so I would hold out for a bit more. Nevertheless, it is your case, your money and your time, so, as Cilla (or was it "Our Grahame"?) used to say "The decision is yours."

Best of luck.

[Loki117]

Ah, I see. My apologies. However, the fact that you have left the property also means that you are on shaky ground in any event. I have heard of a decision made at CC level which held that an ex-tenant cannot claim in respect of non-compliance with TDP. I do not necessarily agree with that view when the deposit remains un-refunded, but there it is - yet more uncertainty.




Do not get bogged down in debates with the LA about whether or not the legislation/guidance was clear and/or published in good time. It is not a defence and any arguments that deal with anything other than the absolute position that the law must be obeyed from the very second it is in force are completely irrelevant and nothing but distracting.



£2500? Your claim is worth £5400 (3 X £1800) + whatever portion of the deposit is still un-refunded.

As I have said, above given the cracks in your claim against them, I think the LA's offer of £1500 is reasonable, however they probably don't know how strong their case is, so I would hold out for a bit more. Nevertheless, it is your case, your money and your time, so, as Cilla (or was it "Our Grahame"?) used to say "The decision is yours."

Best of luck.


Thanks agent your info is always valued.

With regards to TDP complience after the tenancy has ended I know of 1 case which has dimissed it but I also know of 1 in which the claiment won so seems an even ground to me? Do you mean you have heard that all judges decided as a party that TDS can not be claimed after the fact? I find this crazy as I didnt know there was non complience until after I tried to get my deposit back and the TDS pointed out there was no prescribed info or clauses and there for they would not arbitrate.

the £2500 is what I asked the agent for in respect to the £600 outstanding * 3 + the outstanding amount... (2400) round up to 2500 to be even this was me attempting to be fair in not asking for the full amount of £5400 + 600 outstanding.... that was when the LA put forward the offer of £1500.

ARGH I do hate this!

[agent46]

With regards to TDP complience after the tenancy has ended I know of 1 case which has dimissed it but I also know of 1 in which the claiment won so seems an even ground to me?

It's not as simple as that unfortunately. I think it depends to a large extent on whether the LL/LA has refunded the deposit to the tenant. It is yet another element of the legislation that requires clairification by the Court of Appeal.



Do you mean you have heard that all judges decided as a party that TDS can not be claimed after the fact?

No. I was referring to an individual decision in a single case.

However, every now and again the Judicial Studies Board updates its guidance to judges. Perhaps the next update will contain advice on how to deal with TDP claims......

[Pobinr]

Afternoon all,

After 7 months of fighting I have finally managed to get my old L to court with regards to failure to supply prescribed information from the TDS. My L has lodged defence that the Agent should have done it as he was paying them £120 a month to do so.

Should i have lodged my case against the A and not the L? The L's name is on the AST. I never found out about prescribed information until I tried to have a dispute sent to the TDS at which point they rejected it saying the A was unable to supply the prescribed information that they sent me. I do have a certificate that it was secured but seeminly there should have been some details terms and condition documents with it.

My question is should I have persued the A for non complience instead of the L?Are you trying to shaft your landlord by relying on some legal technicality to take him to court ?
Charming :rolleyes:
Has your landlord ever done you any harm ?
Has he done anything to deserve being taken to court ?
Incidently, how could you prove that the landlord didn't provide you with prescribed information ?
Frankly I'm amazed landlords are expected to spoon feed this information to the tenant.
It's not exactly top secret. How can that be an excuse to **** landlords about !
It's all on the net at the TDS websites for heaven's sake.
On 2nd thoughts the courts love any chance to get at landlords don't they.

[agent46]

Has he done anything to deserve being taken to court ?

That is for the Court to decide. If the LL/LA acted unlawfully (which it seems they almost certainly did, although they may have a technical defence), then the T is merely enforcing their rights, as granted by Parliament, who have a mandate from the Queen's subjects to legislate.



Incidently, how could you prove that the landlord didn't provide you with prescribed information ?

It is difficult to prove a negative. However, the LL/LA will be asked to provide documentation pertaining to this point in the course of disclosure of documents. I believe Loki also has an email in which the LA admits non-compliance.


Frankly I'm amazed landlords are expected to spoon feed this information to the tenant.

Perhaps you wouldn't be quite so amazed if you had read or understood the relevant legislative provisions.


It's not exactly top secret..... It's all on the net at the TDS websites for heaven's sake.

Quite. It has been widely available for some 16 months now. Which makes the LA/LL's non-compliance even more blameworthy.


On 2nd thoughts the courts love any chance to get at landlords don't they.

Well then I'd suggest you should get to work on constructing a nice, shiny tinfoil hat asap.

[Pobinr]

I note you avoid this question I posed:-
'Has your landlord ever done you any harm ?'
I'm sorry but unless the lack of info provided by the landlord has been of some real detriment to the tenant, then taking him to court is just an example of plain gratuitous malice & frankly a waste of court time.

[Loki117]

Are you trying to shaft your landlord by relying on some legal technicality to take him to court ?
Charming
Has your landlord ever done you any harm ?
Has he done anything to deserve being taken to court ?
Incidently, how could you prove that the landlord didn't provide you with prescribed information ?
Frankly I'm amazed landlords are expected to spoon feed this information to the tenant.
It's not exactly top secret. How can that be an excuse to **** landlords about !
It's all on the net at the TDS websites for heaven's sake.
On 2nd thoughts the courts love any chance to get at landlords don't they.

Really did you even read the thread? Or are you just trolling?

For the benifit of those too lazy to read the previous posts to sum up my landlord has been holding £600 of mine for 9 months now which he wants for bills he is unable to show me these bills even when asked to do so by his own agent so I asked for it to go to arbitration when it hit the TDS they refused to arbitrate because guess what the landlord and or his agent failed to comply with the law and the rules of the TDS

So shafting my landlord? No Enforcing my rights? Yes!

It is not your duty as claiment to show a negative it is the landlord or his agents duty to prove they did give you / me the info and as they are missing the clauses in the AST and any prescribed info in the AST and any signed info from me saying I received the guidance booklets then the proof is pretty damning! Also I have an email from the LL's agent saying "We did not comply with the housing act"

Still think im playing around? As for relying on technicality to take him to court, no he would be relying on one to get him out of court. :mad:

[agent46]

I note you avoid this question I posed:-
'Has your landlord ever done you any harm ?'
.

I didn't answer the question because it is utterly irrelevant. The law provides that if the LL/LA does not comply with TDP requirements then the tenant can sue for 3 X the deposit. There is no requirement in the HA 2004 for the tenant to prove they suffered some loss or harm, so it was totally unecessary to address the point. It is not my place to judge. If you believe that provision is unjust (and you may be right in so believing), then you should write to your MP and/or persuade a representative body such as the NLA (who, incidentally, were consulted extensively on the contents of the Bill as it proceeded through Parliament) to campaign for a change in the law.

[Loki117]

I note you avoid this question I posed:-
'Has your landlord ever done you any harm ?'
I'm sorry but unless the lack of info provided by the landlord has been of some real detriment to the tenant, then taking him to court is just an example of plain gratuitous malice & frankly a waste of court time.

He has done harm if he had complied with the law I would have had my £600 9 months ago,not had all this hasle, not had to read legislation on laws which I knew nothing about and lastly not had to listen to him screaming down a telephone at me because he is unable to get me bills for things which he wants me to pay for!

Incidently the landlord is not a good honest man he is fiddling the water company by claiming business rates on all 12 of his apartments in his block by declaring them as offices! Still sound like someone who you should be worried about?

[Pobinr]

Really did you even read the thread? Or are you just trolling?

For the benifit of those too lazy to read the previous posts to sum up my landlord has been holding £600 of mine for 9 months now which he wants for bills he is unable to show me these bills even when asked to do so by his own agent so I asked for it to go to arbitration when it hit the TDS they refused to arbitrate because guess what the landlord and or his agent failed to comply with the law and the rules of the TDS

So shafting my landlord? No Enforcing my rights? Yes!

It is not your duty as claiment to show a negative it is the landlord or his agents duty to prove they did give you / me the info and as they are missing the clauses in the AST and any prescribed info in the AST and any signed info from me saying I received the guidance booklets then the proof is pretty damning! Also I have an email from the LL's agent saying "We did not comply with the housing act"

Still think im playing around? As for relying on technicality to take him to court, no he would be relying on one to get him out of court. :mad:

"to sum up my landlord has been holding £600 of mine for 9 months now which he wants for bills he is unable to show me these bills even when asked to do so by his own agent".

Fair enough your landlord is harming you then, or at least trying to financially. I only asked a simple question cos I couldn't be bothered to read 3 pages of posts.

For the avoidance of misunderstandings it would have been good if you give that crucial piece of information to set the stage properly in the 1st place in your 1st post. Then I'd have known you have good reason to take him to court ;-)

[Impartial Advice]

Just update from previous post on this thread.

Hearing eventually last week, won and tenant awarded £2070.

Deposit to be returned + 3x sanction for non compliance with TDS and £150 costs.

Arguments for residency thrown out.

Interestingly DJudge confirmed despite agent handling deposit it was DJ's opinion the landlord WAS liable for the protection and liable for the penalty. Also confirmed that N1 rather than part 8 procedure was the correct route in their eye's as there still seems to be some discussion over this in some areas.

[Planner]

Just update from previous post on this thread.

Hearing eventually last week, won and tenant awarded £2070.

Deposit to be returned + 3x sanction for non compliance with TDS and £150 costs.

Arguments for residency thrown out.

Interestingly DJudge confirmed despite agent handling deposit it was DJ's opinion the landlord WAS liable for the protection and liable for the penalty. Also confirmed that N1 rather than part 8 procedure was the correct route in their eye's as there still seems to be some discussion over this in some areas.

Congratulations!

How odd over the N1 / N208 argument, I thought the courts where now clear its N208!

Oh well!