sherifffatman
30-01-2009, 19:58 PM
I have been having massive problems with a case in the Small Claims Court.
Short version - please stick with it!
Tenants agreed verbally 27/2/08 to Statutory Periodic Tenancy on same terms ie 6 months from end of AST 26/4/08.
They claim they sent a letter first class 20/3/08 stating they were moving out and asking to take the last month from the deposit.
This letter was never received (or sent tbh)
The keys were retained and the Tenants refused to answer any calls or letters etc over the next 4 months
They, funnily enough, did not pay their last month's rent or leave any forwarding addresses, nor did they pay any utilities or council tax and had(have) several debts on the property.
On 1/7/08 I received 2 out of 3 sets of keys for the property.
Managed to contact one tenant at work who agreed to a surrender of tenancy and retention of deposit and additional damages (total £985.18 plus breach charges - monthly rent £995) as well as forwarding stamped paid bills and final set of keys.
This did not happen.
I went to check the status of the deposit and found to my horror that it had not been registered.
I worked out that it was during the time that there was a merchant service problem with the mydeposits scheme.
Gutted.
I issued proceedings and put the deposit in the scheme.
At no point had the tenants requested any information about the deposit nor had they requested its return.
They instantly counterclaimed for the 3xdeposit compo.
The hearing was today in front of a lady District Judge
She did not appear to have grasped the point of the original claim as when she had eventually read some of the tenants' evidence (which had also become lost in the post on the way to the court!) she declared
"From what i can see, this case is entirely about the deposit!"
Gobsmacked! and not a little bit disgusted esp as i had not had the opportunity to claim for the deposit and damages above it after their counterclaim.
I reiterated my case re the rent (evidence of residence after 26/4/07 in addition to tenant admitting in court having been there after 26/4/08 creating a Statutory Periodic Tenancy)
They also admitted to leaving the property in a right state.
The judge ruled that I was owed 3 months' rent plus the deposit damages plus court costs.
(the damages were to be mitigated by the deposit still held)
She asked us to leave as she could not work out what the total was and submitted it via scribbled paper after the hearing.
By the time I received it she had gone to lunch with no guarantee of return any time soon.
And she had amazingly got the sums wrong!!!
She awarded the 3xdeposit fine and their costs to the tenants claiming that she had no choice under the Housing Act 2004.
She did not award the return of the deposit to the tenants, nor did she request that it be paid into a scheme.
HA2004 - sec 214.3
the court must, as it sees fit, either -
a) order that person who appears to the court to be holding the deposit to repay it to the applicant, or
b)order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme.
214.4
The court must ALSO order the landlord to pay to the applicant etc..etc..
I do not believe she has applied either of 214.3 thus can not apply 214.4 due to the also.
In addition, this is entirely the situation that I & many colleagues feared would happen with this part of the Housing Act - tenants being rewarded for reneging on their responsibilities.
I appreciate that the deposit should have been protected but I am one landlord dealing with many of my own properties and their associated ongoing concerns and genuinely thought it was in the scheme.
I have never touched the deposit which is still in its ringfenced separate account since payment.
Gutted but intending to appeal on this point of law which needs to be sorted asap.
Any helpers out there please?
Thanks in advance,
A very angry fatman
Short version - please stick with it!
Tenants agreed verbally 27/2/08 to Statutory Periodic Tenancy on same terms ie 6 months from end of AST 26/4/08.
They claim they sent a letter first class 20/3/08 stating they were moving out and asking to take the last month from the deposit.
This letter was never received (or sent tbh)
The keys were retained and the Tenants refused to answer any calls or letters etc over the next 4 months
They, funnily enough, did not pay their last month's rent or leave any forwarding addresses, nor did they pay any utilities or council tax and had(have) several debts on the property.
On 1/7/08 I received 2 out of 3 sets of keys for the property.
Managed to contact one tenant at work who agreed to a surrender of tenancy and retention of deposit and additional damages (total £985.18 plus breach charges - monthly rent £995) as well as forwarding stamped paid bills and final set of keys.
This did not happen.
I went to check the status of the deposit and found to my horror that it had not been registered.
I worked out that it was during the time that there was a merchant service problem with the mydeposits scheme.
Gutted.
I issued proceedings and put the deposit in the scheme.
At no point had the tenants requested any information about the deposit nor had they requested its return.
They instantly counterclaimed for the 3xdeposit compo.
The hearing was today in front of a lady District Judge
She did not appear to have grasped the point of the original claim as when she had eventually read some of the tenants' evidence (which had also become lost in the post on the way to the court!) she declared
"From what i can see, this case is entirely about the deposit!"
Gobsmacked! and not a little bit disgusted esp as i had not had the opportunity to claim for the deposit and damages above it after their counterclaim.
I reiterated my case re the rent (evidence of residence after 26/4/07 in addition to tenant admitting in court having been there after 26/4/08 creating a Statutory Periodic Tenancy)
They also admitted to leaving the property in a right state.
The judge ruled that I was owed 3 months' rent plus the deposit damages plus court costs.
(the damages were to be mitigated by the deposit still held)
She asked us to leave as she could not work out what the total was and submitted it via scribbled paper after the hearing.
By the time I received it she had gone to lunch with no guarantee of return any time soon.
And she had amazingly got the sums wrong!!!
She awarded the 3xdeposit fine and their costs to the tenants claiming that she had no choice under the Housing Act 2004.
She did not award the return of the deposit to the tenants, nor did she request that it be paid into a scheme.
HA2004 - sec 214.3
the court must, as it sees fit, either -
a) order that person who appears to the court to be holding the deposit to repay it to the applicant, or
b)order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme.
214.4
The court must ALSO order the landlord to pay to the applicant etc..etc..
I do not believe she has applied either of 214.3 thus can not apply 214.4 due to the also.
In addition, this is entirely the situation that I & many colleagues feared would happen with this part of the Housing Act - tenants being rewarded for reneging on their responsibilities.
I appreciate that the deposit should have been protected but I am one landlord dealing with many of my own properties and their associated ongoing concerns and genuinely thought it was in the scheme.
I have never touched the deposit which is still in its ringfenced separate account since payment.
Gutted but intending to appeal on this point of law which needs to be sorted asap.
Any helpers out there please?
Thanks in advance,
A very angry fatman