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awt19
23-03-2009, 21:49 PM
Hi there.

I'm going to submit my N208 for non-compliance of the TDS on Wednesday, but just wanted some last minute assurance that I do actually have a case and am doing the right thing. Not having a solicitor is nerve racking as I'm not all that legally minded!

Details are:

1) Rent is < 25,000 and its an AST signed Jan 2008, moved out Jan 2009 so qualifies.
2) Deposit wasnt protected and only after a month of being ignored and finally an LBA did we receive almost all of our deposit back, all except a small amount.
3) He wont give us receipts for the deducted amount, so we believe we have fair reason to dispute this. But given this is an absolute claim we feel this is irrelavent.
4) He has threatened that there are damages on the inventory that he is willing to forgo for the sake of closure and will counterclaim against these. There were no damages, and we think he is trying to scare us.

Evidence to support claim: Tenancy Agreement, 3 letters from TDS's proving non-compliance. Guidance notes from HMCS. Receipt of paid deposit. Ignored emails chasing return of deposit. LBA.

One question... the Tenancy Agreement for evidence isnt signed (it was off a pdf on my computer that was easier to print) but I have the signed original should it go to court... is this ok?

Also, we are no longer tenants... possibly an issue?

Should I go ahead with it? All comments good and bad welcome!

mind the gap
23-03-2009, 22:10 PM
Hi there.

I'm going to submit my N208 for non-compliance of the TDS on Wednesday, but just wanted some last minute assurance that I do actually have a case and am doing the right thing. Not having a solicitor is nerve racking as I'm not all that legally minded!

Details are:

1) Rent is < 25,000 and its an AST signed Jan 2008, moved out Jan 2009 so qualifies.
2) Deposit wasnt protected and only after a month of being ignored and finally an LBA did we receive almost all of our deposit back, all except a small amount.
3) He wont give us receipts for the deducted amount, so we believe we have fair reason to dispute this. But given this is an absolute claim we feel this is irrelavent.
4) He has threatened that there are damages on the inventory that he is willing to forgo for the sake of closure and will counterclaim against these. There were no damages, and we think he is trying to scare us.

Evidence to support claim: Tenancy Agreement, 3 letters from TDS's proving non-compliance. Guidance notes from HMCS. Receipt of paid deposit. Ignored emails chasing return of deposit. LBA.

One question... the Tenancy Agreement for evidence isnt signed (it was off a pdf on my computer that was easier to print) but I have the signed original should it go to court... is this ok?

Also, we are no longer tenants... possibly an issue?

Should I go ahead with it? All comments good and bad welcome!

How much of your deposit has your landlord kept?

It is not an issue that you are no longer tenants, but it may well be significant that you have had most of your deposit back, since the protection rules exist to ensure Ts get their deposits back...and that principle has been adhered to, hasn't it? Why are you claiming for the 3x - or have I misunderstood something here?

awt19
23-03-2009, 23:07 PM
How much of your deposit has your landlord kept?

It is not an issue that you are no longer tenants, but it may well be significant that you have had most of your deposit back, since the protection rules exist to ensure Ts get their deposits back...and that principle has been adhered to, hasn't it? Why are you claiming for the 3x - or have I misunderstood something here?

Thanks mind the gap, I appreciate your feedback.

The landlord has retained 100, and although I appreciate this is only a small amount, tecnically we havent got our full deposit back and so I dont think the principal has been adhered to. We're claiming the 3x because we had significant difficulty getting the deposit back from the landlord, including a month of emailling and calling and getting ignored and we feel this is the kind of behavior the TDS is designed to prevent. We dont think tenants should have to stress as we did over the return of our deposit. We also havent been given a chance to dispute the deduction (even though its small), and feel we this important right hasnt been afforded to us.

I do see your point that a judge may see the case as closed, however the claim is absolute isnt it? So the amount of the deduction is irrelavent isnt it? So you dont think we should go ahead with it?

Thanks again.

mind the gap
23-03-2009, 23:12 PM
Thanks mind the gap, I appreciate your feedback.

The landlord has retained 100, and although I appreciate this is only a small amount, tecnically we havent got our full deposit back and so I dont think the principal hasnt been adhered to. We're claiming the 3x because we had significant difficulty getting the deposit back from the landlord, including a month of emailling and calling and getting ignored and we feel this is the kind of behavior the TDS is designed to prevent. We dont think tenants should have to stress as we did over the return of our deposit. We also havent been given a chance to dispute the deduction (even though its small), and feel we this important right hasnt been afforded to us.

I do see your point that a judge may see the case as closed, however the claim is absolute isnt it? So the amount of the deduction is irrelavent isnt it? So you dont think we should go ahead with it?

I understand what you are saying about the principle of it and I agree that you should not have had to go through that much grief to get back what you have got back. (However...instead of spending a month emailing etc, you could have just sent him one Letter Before Action, demanding return of whole deposit within 7 days or you would press 'send' on your 3x claim. That usually works).

As to whether you should proceed or not, I don't honestly know. How much will it cost you if it fails? If you stand to lose a lot in costs, I would certainly advise paying a housing law solicitor for a consultation, just to make sure you don't throw good money after bad.

awt19
23-03-2009, 23:23 PM
I understand what you are saying about the principle of it and I agree that you should not have had to go through that much grief to get back what you have got back. (However...instead of spending a month emailing etc, you could have just sent him one Letter Before Action, demanding return of whole deposit within 7 days or you would press 'send' on your 3x claim. That usually works).

As to whether you should proceed or not, I don't honestly know. How much will it cost you if it fails? If you stand to lose a lot in costs, I would certianly advise paying a housing law solicitor for a consultation just to make sure you don't throw good money after bad.

Hindsight is a beautiful thing :) I wasnt aware of any of this stuff when we moved out, and am not the most legal person, so wasnt sure how to deal with it. As it was, we send him an LBA after a month, and we then received the amount received within 2 days, so you are right, we should have done that at the start and saved alot of stress.

We would stand to pay his solicitors costs if we lose, which I guess could be upwards of 2k. I've had advice from the CAB, who said to go ahead, and I had a 1 hour session with a solicitor who sent the LBA. His words were that the only defence the LL has is to prove he protected the money, which clearly he is unable to do. He also suggested that we take the case to court ourselves as it was quite straight fowards, and he wouldnt be adding alot unless it became a debate around a piece of law. But he also said that 9 times out of 10 these get settled outside of court. So I think we have it covered, bar a few nerves!

mind the gap
23-03-2009, 23:44 PM
Hindsight is a beautiful thing :) I wasnt aware of any of this stuff when we moved out, and am not the most legal person, so wasnt sure how to deal with it. As it was, we send him an LBA after a month, and we then received the amount received within 2 days, so you are right, we should have done that at the start and saved alot of stress.

We would stand to pay his solicitors costs if we lose, which I guess could be upwards of 2k. I've had advice from the CAB, who said to go ahead, and I had a 1 hour session with a solicitor who sent the LBA. His words were that the only defence the LL has is to prove he protected the money, which clearly he is unable to do. He also suggested that we take the case to court ourselves as it was quite straight fowards, and he wouldnt be adding alot unless it became a debate around a piece of law. But he also said that 9 times out of 10 these get settled outside of court. So I think we have it covered, bar a few nerves!


Well - good luck. The experience of people who have posted on this forum is that judges have awarded the 3x penalty for LLs who haven't protected at all (as you would expect); a few have awarded the penalty against LLs who have protected late; but I've not heard of any where LL has been whopped when he has returned the deposit either in full, or partially. Notwithstanding I can see that there is still £100 of your deposit which has neither been protected nor returned, so I would be very interested to see how it goes. Good luck.

awt19
24-03-2009, 08:05 AM
One question... the Tenancy Agreement for evidence isnt signed (it was off a pdf on my computer that was easier to print) but I have the signed original should it go to court... is this ok?



Thanks. Fingers crossed and all that. Any view on the above question?

islandgirl
24-03-2009, 09:23 AM
I do not think you will be liable for the other side's solicitor's costs if you lose but I may be wrong. I thought that in small claims legal costs are rarely awarded. Anyone know for sure?

Paul Gibbs
24-03-2009, 09:30 AM
Regarding costs what is the value of the claim? If it is below £5k then unless LL has a contractual provision for you to pay his costs then the usual small claims court rules apply and normally no costs are awarded.

If the dispute is above £5k then usual rule is loser pays the winners costs so why not use the solicitor who previously advised you.

I doubt the fact that the TA is not signed will make a major difference. It is likely that both LL and T understood the terms on which the TA would operate, the TA is evidence of this.

edit - Islandgirl is correct re costs

johnboy
24-03-2009, 09:58 AM
Am i missing something here?

The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.

mind the gap
24-03-2009, 10:06 AM
Am i missing something here?

The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.

No the rent is < £25 [see #1]. (< means 'less than'.)

awt19
24-03-2009, 11:23 AM
Am i missing something here?

The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.

Rent is < (less than) 25k

Deposit was just over £2k so above the amount allowed for the small claims court. I was worried that if I lost, I would have to pay my own solicitors costs as well... which could be doubly painful if I have to pay his...

But maybe I should just bite the bullet....

islandgirl
24-03-2009, 11:38 AM
awt19 - I have just claimed £5000 through small claims (moneyclaim online) and no costs payable to the other side...

Paul Gibbs
24-03-2009, 11:42 AM
but he is claiming 3x the deposit. You could have caped the claim at £5,000 to avoid any adverse costs order

awt19
24-03-2009, 11:45 AM
Regarding costs what is the value of the claim? If it is below £5k then unless LL has a contractual provision for you to pay his costs then the usual small claims court rules apply and normally no costs are awarded.

If the dispute is above £5k then usual rule is loser pays the winners costs so why not use the solicitor who previously advised you.

I doubt the fact that the TA is not signed will make a major difference. It is likely that both LL and T understood the terms on which the TA would operate, the TA is evidence of this.

edit - Islandgirl is correct re costs

Just concerned that if we lose, we'll be doubley hurt as we will have to pay own solicitors costs as well... and not sure how much he will add as it seems like a straight forward case, and I'm confident I can put the facts across as they stand.... or am I missing something?



Am i missing something here?

The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.

Rent was < 25k (less than!) So qualifies!

islandgirl
24-03-2009, 12:10 PM
could you not go through moneyclaim online, just claim £5000 and do it yourself -no risk of costs?

awt19
24-03-2009, 12:23 PM
but he is claiming 3x the deposit. You could have caped the claim at £5,000 to avoid any adverse costs order

Paul... thanks for this.

I was advised by Shelter that non-compliance cases cannot go through the small claims court as they about enforcing a penalty and not a monetary amount... does this sound right to you?

Thanks.

awt19
24-03-2009, 12:26 PM
Paul... thanks for this.

I was advised by Shelter that non-compliance cases cannot go through the small claims court as they about enforcing a penalty and not a monetary amount... does this sound right to you?

Thanks.

Interesting.. this has me thinking...
but are you sure you can post an N208 through the small claims court?

mind the gap
24-03-2009, 12:32 PM
Interesting.. this has me thinking...
but are you sure you can post an N208 through the small claims court?

No, I think you have to do it as you originally planned and were advised to.

islandgirl
24-03-2009, 12:41 PM
I think other posters are correct - you are not just claiming a sum of money which is a pity. Keep us informed on the outcome please.

awt19
24-03-2009, 13:07 PM
No, I think you have to do it as you originally planned and were advised to.

Thanks... will send off today then. Just thought there might be a chance to limit the downside risk by using the small claims, but sounds like this isnt so...

Paul Gibbs
24-03-2009, 13:47 PM
Paul... thanks for this.

I was advised by Shelter that non-compliance cases cannot go through the small claims court as they about enforcing a penalty and not a monetary amount... does this sound right to you?

Thanks.

I do not think this is right. The allocation of a claim to a track is dealt with in the Civil Procedure Rules. The general rule is any claim for £5k or less is allocated to the small claims track unless the case requires experts etc which requires the case be listed as fast track or multi track.

IMO the law is not complex on this matter and small claims should be ok. The parties could agree for it to be allocated to the small claims track even if that would not be the usual track (subject to the court approving) - suggest SMC on you Allocation Questionnaire

Paul Gibbs
24-03-2009, 16:47 PM
I think form N1 should have been used rather than the part 8 procedure

awt19
24-03-2009, 16:56 PM
I think form N1 should have been used rather than the part 8 procedure

Um... I think you might be right. Aaargh! And have submitted the documents!

What happens if they are on the wrong claim form?

Given it is an issue of non-compliance though, isnt that the reason for the N208?

Thanks again..

Paul Gibbs
24-03-2009, 17:06 PM
I think your claim is on N1 - you can contact the court and ask them to return the documents as you used the wrong form - they should not have a problem if they have not issued it yet.

If the claim has been issued (I think the court might refuse to issue and return it to you) then you can get the case transferred from part 8 to part 7. Just ask for this when you fill out the Allocation Questionnaire.

awt19
24-03-2009, 17:15 PM
I think your claim is on N1 - you can contact the court and ask them to return the documents as you used the wrong form - they should not have a problem if they have not issued it yet.

If the claim has been issued (I think the court might refuse to issue and return it to you) then you can get the case transferred from part 8 to part 7. Just ask for this when you fill out the Allocation Questionnaire.

Thats great thanks... So not a case of starting over again at least. For the record the court also stated that it was likely to take between 6 and 8 months if the process went smoothly!

Paul Gibbs
25-03-2009, 09:36 AM
have they issued the claim tho? If not I think you should recall it and change it.

awt19
25-03-2009, 15:13 PM
So its definately an N1 and not the N208 form then? How are you so sure? pretty much all the threads here say that non-compliance with TDS is N208, why is this one different?

Thanks

awt19
03-06-2009, 21:00 PM
Ok... submitted N208 and this has all been allocated to a Part 7, anyone got a clue what this means? Good or bad? Whats the difference between Part 7, Part 8 etc?

Many thanks to all.