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howard777uk
17-02-2010, 00:57 AM
Hi

I would really appreciate your thoughts on this issue. I began a 12 month AST on 25th December 2006. I renewed with a new 12 month AST through to 26th Dec 2008 and renewed a third time for the period 25th December 2008 through to 26th December 2009.

The usual method of communication with the Landlord was via EMail. The property was put up for Sale in November 2009. I found a new property to rent and EMailed the landlord informing him id found somewhere else to go too and with a notice to quit on the 16th Nov 2009 with the last date of tenancy as 10th Dec 2009. He replied to my EMail the same day and accepted the notice and even said he had responded very favourably to the vetting agency that had contacted him asking for a reference for me (for the place i was moving too).

The Deposit I had paid over some 3 years before was £900. There was £100 rent owed to me as well for rent "in credit" giving £1000 owed to me in total. I EMailed Landlord and he agreed to repay the amount in due course. He repeated that i would get my money back even after the property was vacated and after it had been sold. No inventory was done at the start of the original ASt when i moved in.

So i moved out on the 10th Dec 2009, the property was sold and completed its sale early Jan 2010. In the meantime the landlord kept delaying the repayment to me for the £1000. He even said he could only repay me when the sale had completed! Eventually he sent me £377 and said there were 2 issues:
1. That i hadnt given him notice to quit and therefore i had to pay rent through to the 25th Dec 2009 and he was deducting £503
2. That there was damage to the wall near the front door and he was deducting £120.

My first Email after this to the Landlord was to ask for a copy of the Deposit certificate so we could persue the matter in the deposit scheme. He replied that as the tenancy began before the April 2007 that he did not need to put the deposit into any of the Deposit schemes.

My next EMail to the landlord included the EMail he sent to me some months before showing both that I had given him notice and that he had accepted it in his EMail reply.

I have not had any reply from the Landlord to that last EMail!

Do you think I have a good case to claim the Deposit back and the 3 times the deposit penalty? Should I just stick to claiming back the deposit as the landlord did not protect it and not bother mentioning the 2 issues the landlord raises above or should i deal with those as well in my claim to the court?

Many Thanks in advance for your repsonses.

Howard
St Albans

Cipher
17-02-2010, 07:17 AM
Howard - you may have a case here, the Landlord is correct in stating original tenancy agreement was before the Deposit Protection rule came into effect but on renewing your agreement for the 2nd and 3rd time the deposit should have been refunded/resubmitted into a protected scheme.

You may also be able to argue in court the amount taken off for damages, if their was no inventory done at check-in how can the landlord determine the property was damaged on check-out?

jeffrey
17-02-2010, 11:21 AM
renewed a third time for the period 25th December 2008 through to 26th December 2009...

...a notice to quit on the 16th Nov 2009 with the last date of tenancy as 10th Dec 2009. He replied to my EMail the same day and accepted the notice
If L accepted that NTQ, he impliedly agreed:
a. an informal surrender as at 10 Dec. 2009; and
b. that your rent liability would end on that date.

howard777uk
17-02-2010, 23:08 PM
Thanks for your comments.

Referring to the EMail I sent with the notice to quit on the 16th November 2009 in which i requested the date of 10th December 2009 as the last day. The Landlords reply was as follows:
"dear howard
i have already sent back your reference , needless to say i highly recommended you
we will talk shortly about the final bits and bobs
let me take this opportunity to thank you for being the perfect tenant
thanks
zzzzz (Landlord)"

He doesnt exactly say yes i agree to your notice but he does talk in terms of accepting it!

After this I sent the landlord a breakdown of the rent owed to me as i had paid to the end of the period and the deposit etc, less the cost of some white goods I had agreed to buy from the landlord and arrived at the sum of £1000 owed to me being £900 deposit and £100 over payment in rent.

This amount has been accepted by the Landlord ever since the 16th November 09 right through to the 3rd Feb 10. My point is that if the Landlord has accepted my calcuation of the rent owed to me etc then it means he is confirming that he had agreed to the notice i requested. Or do you think i will have a problem, here establishing that the notice i requested was accepted by landlord ?

Sorry to go on.

Thanks

Preston
18-02-2010, 00:29 AM
This amount has been accepted by the Landlord ever since the 16th November 09 right through to the 3rd Feb 10. My point is that if the Landlord has accepted my calcuation of the rent owed to me etc then it means he is confirming that he had agreed to the notice i requested. Or do you think i will have a problem, here establishing that the notice i requested was accepted by landlord ?


Hi,

There are two separate but related questions you must consider. First, has he accepted your notice to quit and second, has he agreed to "apportion" your rent so that you are owed a refund from 10th of the month to the end of your rental period.

On the first issue, if you had issued a valid written notice to quit then he would have not choice but to accept it. You do not give enough detail to say for sure, but it does not sound like a valid notice, which would normally require (unless the agreement says otherwise) a minimum of one month's notice ending on the first or the last day of a rental period. However, his replies seem quite clear and, we assume from you have said, that you did actually leave on 10th and he entered in to possession. On the basis of all this, I think he would have a job contesting your notice.

On the issue of apportionment, assuming that your rent was payable in advance at the start of the rental period, there is no obligation on the landlord to apportion rent if you leave part way through a period. The mere acceptance of notice or surrender would not, in my view, be regarded as agreement by the landlord to apportion. However, you say that at some point the landlord accepted your calculations. You don't say exactly how or in what terms he did so, but this seems to me to be potentially your best evidence of an agreement.

howard777uk
19-02-2010, 15:13 PM
Thanks for your respinses.

I'll send the Landlord an LBA to see if he will give me back the full deposit and then failing that I'll claim the deposit + 3 times and costs and interest. I'll also provide the evidence to show the Landlords response on the Notice and that there was no inventory taken.

One other thing as well, The AST contract has a paragraph in bold letters just above the signatures which stakes that it is the landlords responsibility to protect the deposit in a scheme.

If i go ahead with this I'll update the thread.

Regards

howard777uk
26-03-2010, 12:10 PM
Hi
I decided to go ahead and claim under Housing Act sect 214 for the return of the balance of the deposit and 3x deposit. So i put in claim using CPR Part 8 procedure.

The wording on my claim form had 3 claims, 1 for balance of deposit 2. for 3x deposit and 3. for an extra amount owed to me by the landord of £100.

Now the response has come back from the defendant saying they are objecting to this procedure (Part 8) being used. I think the grounds for this objection are either because of the claim part 3 or because of something else - argument over the facts??. So I awaiting the decision by the court on what they will do next on this.

I wanted to ask:
1. If court directs that Part 8 should not be used can i then withdraw and represent a new claim but with my claim 3. removed and that way remove any possibility of objecting to part 8 being used.
2. See if i can be allowed to strike out claim part 3.

I wish i had not even bothered with that claim part3. It was only for a £100 which is nothing compared to rest of claim for balance of deposit and 3x deposit.

Silly me. But the facts of the case haven't changed so im not to perturbed by this.

Thanks for your thoughts on this

westminster
26-03-2010, 12:33 PM
Part 8 is the correct procedure for non-compliance claims (see CPR 56.1 (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part56.htm) & PD56 Para 2.1 (http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part56.htm#id4223904)).

I don't know whether tagging on a Part 7-type claim means that Part 7 must be followed, however; but I'm fairly sure you can amend the claim and then continue using Part 8 procedure. Did you submit your evidence with your claim form as per CPR 8.5 (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part08.htm#IDARZNHC)? Are you aware that the claim may be allocated to the multi-track thereby exposing you to the defendant's legal costs if you lose or discontinue the claim?

See this link (http://blog.painsmith.co.uk/2009/05/21/proper-place-for-tds-claims/).

Paul Gibbs
26-03-2010, 12:57 PM
It is a Part 8 claim, and you should be fine bringing the £100 claim within the Part 8 claim. The court would expect all disputes to arise within 1 claim rather than a number of different claims.

You should see about getting legal advice. As Westminster says the claim will be allocated to the multi track which usually means that the loser pays the winners costs. You may be able to get a solicitor to act under a Conditional Fee Agreement (no win no fee).

howard777uk
26-03-2010, 13:00 PM
Hi
Yes, I gave written evidence with claim. Namely the AST which states in bold that its the landlords responsibility to take out deposit protection and all the EMails in chronological order between Claimant and Defendant. I then provided a list drawing attention to specific EMails where claimant asks for details of scheme and where Defendant had said he didnt have deposit protection and it wasnt needed. So i think ive provided clear information to support the claim.

Costs worry me though, ive been to court for divorce and i would have enjoyed burning the money and keeping my hands warm rather than having a day in court which was a farce! We ended up agreeing the deal face to face and then representing ourselves in the end. But i digress!

Will the decision by the court on this precural matter be given with choices i wonder? or just a summary and unchangeable decision?

Thanks

westminster
26-03-2010, 13:19 PM
Hi
Yes, I gave written evidence with claim. Namely the AST which states in bold that its the landlords responsibility to take out deposit protection
You mean the third AST dated 2008-9? What about evidence that you actually paid a deposit?


Will the decision by the court on this precural matter be given with choices i wonder? or just a summary and unchangeable decision?
See Paul Gibbs' comment above, which you may have missed; it's possible the claim will not need to be amended.

However it seems the solicitors are arguing that there is a 'substantial dispute of fact', which is one of the grounds on which you can object to the use of Part 8. See CPR 8.8 (http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part08.htm#IDA34NHC). It may be that the inclusion of the claim for £100 has introduced such a 'substantial dispute of fact'.

Mind you, I see no particular advantage to you in proceeding via Part 8, given the exposure to costs, so if the court directs you to use Part 7, it's hardly a disaster. The LL will have to pay his lawyers' fees even if you lose.

howard777uk
26-03-2010, 13:55 PM
Hi
Yes I submitted the third AST for 2008-2009. In this AST it states that the Deposit has been held over by Landlord from previous term.

Yes, I did miss Paul's comments which were very informative, thank you Paul. I'm feeling a lot more comfortable about the part 3 of the claim.

I didnt realise this difference about Part 7 and 8 . So indeed it appears the Defendant is trying to move onto a Part 7 procedure so that they can argue about the facts of the case. The Part 7 Procedure would be better as it takes away the risk of paying the other parties costs.

I suppose I will have to await the response from the Court on this objection and take it from there.

Also the defendant has 28 days to submit evidence but i suppose that wont be done now until this procedural objection is decided by the court. Am I right in this?

Thanks

howard777uk
01-06-2010, 13:17 PM
Since my last Post I was asked by the Court to complete an Alocation Questionaire. I did and now an order has been made by the Judge on this case. It requires me to show the deposit was paid to the Landlord/Agent AFTEr the beginning of the Tenancy Deposit Legislation came into Force. Obviously I cant do that as the deposit was allready being held by the Landlord from the previous AST agreements (which originally commenced prior to start of legislation).

So I think im going to lose this case.

At the start of the last AST I should have requested the return of the deposit and then immediately repaid it to Agent/Landlord but obviously They wouldnt have returned the deposit until i was out of the propoerty so im in a catch22 on that.

Any thoughts would be appreciated

jeffrey
01-06-2010, 13:40 PM
No, you might win nevertheless.
As L granted a renewal AST on/after 6 April 2007, L should thereupon have protected your deposit- but did not.

howard777uk
01-06-2010, 13:56 PM
Jeffrey
Thanks for the comment.
How do i go about including the evidence that as you say, the renewal AST should have been protected? Is their any case i can refer to? Should i include these statements when i respond to the order? The order says that if i cant provide the proof of paying deposit after Deposit protection legislation commennced then the case is considered defaulted and over.

I am paraphrasing as I have just had the order read out to me over the phone. Expect to get it in post tommorow.

jeffrey
01-06-2010, 14:05 PM
Does the renewal AST not include reference to the new deposit, theoretically then paid by you to L using £££ theoretically just repaid by L to you?

howard777uk
01-06-2010, 14:29 PM
The renewal AST says:
"The deposit held over by landlord from previous term"
The next clasuse says:
"The tenant shall pay to the landlord upon signing of this agreement the sum of £900 by way of Deposit for the Landlord..."

So it appears that it is accepted that the deposit has been "paid" for the purpsose of the AST but not for the purpose of the deposit protection!

?

jeffrey
01-06-2010, 15:34 PM
Use that as evidence that L received your deposit on the renewal.

Snorkerz
01-06-2010, 18:21 PM
I don't know if it is of use to you, but this link from the DPS' website cites government confirmation that a renewal tenancy should have it's deposit protected.

http://www.depositprotection.com/webcontent.ashx?docid=69ee5ef0-5ef6-4bd2-855e-d294b147f593