PDA

View Full Version : T sued L for non-return of deposit; what's next step?



Princessjo
21-02-2010, 14:47 PM
Hi,

I moved into a flat in 2008, and moved out last July. The landlord told me he'd give me back my full deposit within 10 days. Which he didn't.
I then started court proceedings, his defence stated that my contract was with a company (I didn't have a copy of the contract - stupid me), which his wife owns, I continued the court proceedings, in hope that they'd realise he had access to the deposit money and could return it.
However, on the day of court, the landlord did not turn up and the judge ruled that I need to go to the company for the money, and transferred my claim to them.
I also found out that my deposit wasn't protected - which the landlord included in his defence (apparently companies don't need to protect them :rolleyes: ), the judge found this quite ammusing. So I now want to take the company to court for my deposit + 3x penalty payment. I'm not being greedy, but it's the only way I can get my money back, as it's cost me quite a bit of money now with all the proceedings. Plus, it would serve him right.

Anyway, I wanted to know if you think I should send the company a letter stating that I'm now taking them to court for not protecting my deposit?

Thanks

westminster
21-02-2010, 15:12 PM
So, you incorrectly identified the defendant (i.e. your landlord, XXXX Ltd) in your original claim, and you say the judge 'transferred' your claim; what do you mean by this? Is the claim still ongoing or has it been struck out?

Claiming 3x penalty isn't the only way you can get your money back. (The court fees wasted on pursuing the wrong defendant are your responsibility). Assuming you have evidence that you paid a deposit, you can claim either for the deposit, or for the deposit + penalty for non-compliance.

Note that non-compliance claims are risky because they should be allocated to the multi-track, where court fees are high, and you are exposed to the defendant's legal costs if you lose. And losing is a possibility. It is highly advisable to seek legal advice; you may find a solicitor who is willing to act on a no-win-no-fee basis.

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

Princessjo
21-02-2010, 15:34 PM
The judge said that he was going to transfer it so I didn't have to start again with the N20 form (think thats what it's called?) and paying the initial fees.

I'm sorry, I disagree, it is not my responsibility of that wasted fees money, I was a good tenant, I deserved to have my money back, not go through the stress etc of going to court. It is very much his fault for being a theiving *beep* :)!! Not that that matters anymore.

I knew that the company existed, but I was told by him that he owned the company and that he worked from home. When I initially wrote to him, I had no reply. So with only his name and address to go by, I had little choice but to start the proceedings against him.

The court fees are not the only costs I have incurred during this mess.

Plus, at the end of the day, the company did not comply with the Housing Act 2004 and so they've broken the law, hopefully the court will be able to see that.

Can the claim not go through small claims then? It's only £800?

And do you think I should send the company a letter?

westminster
21-02-2010, 15:57 PM
The judge said that he was going to transfer it so I didn't have to start again with the N20 form (think thats what it's called?) and paying the initial fees.
If you read my link, you'll see that the appropriate form for non-compliance claims is form N208. I assume that's what you mean. But I don't quite understand how the judge can amend the particulars of claim from one thing to another.


I'm sorry, I disagree, it is not my responsibility of that wasted fees money Well, you were the one who incorrectly identified the defendant, so no-one else is responsible for that. Anyway, it seems the fees are not wasted if the claim is continuing, and presumably being re-served to the correct defendant...?


So with only his name and address to go by, I had little choice but to start the proceedings against him. Did you not have a tenancy agreement showing the landlord's name and address for serving notices? Also, limited companies' addresses are public information, available on Companies House website.


Plus, at the end of the day, the company did not comply with the Housing Act 2004 and so they've broken the law, hopefully the court will be able to see that Unfortunately, it's not that straightforward. The landlord may defeat the claim by returning the deposit to you, potentially leaving you with liability for the court fees and for his legal expenses. Yes, it is also possible that you'll win, but it's better to be aware of the potential risks.


Can the claim not go through small claims then? It's only £800? It might do; it is contrary to the court guidance I linked to, but the court always has discretion. If you are re-sent an allocation questionnaire, request that the claim be dealt with in the small claims track.


And do you think I should send the company a letter?
Not if the judge has already directed that the claim be re-served on the company. But it's not very clear exactly what has happened.

Princessjo
21-02-2010, 16:04 PM
No, I didn't have a copy of the tenancy agreement, I do now though. And I didn't know that company information was open to the public, I went and bought it.

So if he refunds the deposit money after I've put in the claim and paid for it, then the claim stops despite me taking him for the 3x penalty fee?

westminster
21-02-2010, 19:29 PM
So if he refunds the deposit money after I've put in the claim and paid for it, then the claim stops despite me taking him for the 3x penalty fee?
No, it wouldn't 'stop' the claim. But it's possible that refunding the deposit could succeed as a defence, because the statute is open to interpretation, and some (but by no means all) judges may not apply the penalty if there is no deposit to protect or repay under s.214(3).

See
http://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-it-gets-worse/

And also click on the link for other deposit cases. You will see that the situation is anything but clear cut, although there has recently been a High Court ruling (therefore binding on lower courts) which says that if a deposit is protected late with the DPS this does not attract the penalty (this may yet be appealed).

Princessjo
27-02-2010, 12:33 PM
If I decide to take the company to court then for deposit + 3x penalty fee + court fees, do I use the N208 form despite my claim being £800?

Also, I read in another thread that if the company goes bankrupt, the claimant is then left with a CCJ. This can't possibly be true, can it?

If the company tries to return the deposit to me, could I just not accept it? I also read that a judge cannot order the penalty fee if there is no deposit to protect/return?

Sorry, I'm new to all of this, not really sure what I'm supposed to be doing.

Princessjo
27-02-2010, 12:40 PM
Oh, and I recieved my letter from the court, with the judges decision on. Which said on it '1. *Company 1* be substituted as the defendant
2. Claimant is permitted to amend the claim form and particulars of the claim accordingly to make any further claim to be filed by March...
3. The amended form to be served on the substituted defendant'

Never says anything about changing which form. The judge never mentioned it. Which makes me think that he's ok with me just amending my N1 form?
This is all very confusing!! They should stick to one form for everything!! :D

westminster
27-02-2010, 15:01 PM
Oh, and I recieved my letter from the court, with the judges decision on. Which said on it '1. *Company 1* be substituted as the defendant
2. Claimant is permitted to amend the claim form and particulars of the claim accordingly to make any further claim to be filed by March...
3. The amended form to be served on the substituted defendant'

So, follow the court's instructions. It does not instruct you to change the claim form.


Also, I read in another thread that if the company goes bankrupt, the claimant is then left with a CCJ. This can't possibly be true, can it?
I'm not sure what you mean. If you mean that if you obtain a CCJ against a limited company which goes bankrupt before you can enforce the CCJ, then yes, you probably wouldn't get the money as the company would no longer exist.


If the company tries to return the deposit to me, could I just not accept it?
Yes, but ask yourself how the court would interpret this refusal. What would you answer if the judge asked you why you didn't want your deposit back?


I also read that a judge cannot order the penalty fee if there is no deposit to protect/return?

See post #6.

Princessjo
02-03-2010, 15:33 PM
Thank you very much for your help westminster.

Could you take a few mins out of your time to help me again please?

I phoned up the court to find out what form, and how to amend it etc. They told me the same you did, to follow the judges orders and just amend the N1 form.
I just wondered what to put in the 'particulars of claim' section. Is this ok? Or should I go into more detail?

In respect of deposit for [address] paid by cheque in Jan 08, I wish to claim from the Landlord (Company):

* Return of deposit £200, less any reasonable expenses

* Court fees £85

* Fixed penalty of 3 x initial deposit (total £600) compensation for not protecting my deposit using one of the government approved Tenancy Deposit Schemes within 14 days of receiving it. Reference - Housing Act 2004.

Thank you

westminster
02-03-2010, 19:13 PM
I just wondered what to put in the 'particulars of claim' section. Is this ok? Or should I go into more detail?

In respect of deposit for [address] paid by cheque in Jan 08, I wish to claim from the Landlord (Company):

* Return of deposit £200, less any reasonable expenses

* Court fees £85

* Fixed penalty of 3 x initial deposit (total £600) compensation for not protecting my deposit using one of the government approved Tenancy Deposit Schemes within 14 days of receiving it. Reference - Housing Act 2004.

Thank you
More detail, but still keep it reasonably concise. Number the paragraphs (however short the paragraph). Give dates/details of the tenancy, move in/out dates (relevant not least because not all deposits have to be protected, only ones for ASTs as from 6th April 2007 in England/Wales). Date deposit paid, to whom. Details of attempts to get deposit refunded. Details of letters/phone calls/emails you made enquiring where deposit protected, if applicable. Failure by defendant to return deposit. You get the idea... BTW, refer to s.214 Housing Act 2004. See http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4

e.g. something like - and this is just for guidance, to give you an idea of how claims are structured, not the exact wording, as obviously I don't know the background circumstances:

1. The claimant signed an assured shorthold tenancy agreement with the defendant dated [date] for [address of property] for a fixed term of x months commencing [date] at a monthly rent of £x. The claimant moved in on [date].
2. On [date] the claimant paid a deposit of £200 to [person, position of person, e.g. agent/director of company] by [cheque/cash etc] as security against the obligations of the tenancy.
3. Etc etc....
....(and then state your actual money claims)
8. The claimant claims return of deposit of £200....etc
9. Etc

See also the Civil Procedure Rules for Statements of Case (aka Particulars of Claim).
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part16.htm#id3585779

Princessjo
02-03-2010, 23:04 PM
Thanks for the links, they've been bookmarked :D

I've re-wrote the claim. Is more detail needed? I'm not very good at writing... I'm an art student lol.

1. The claimant signed an assured shorthold tenancy agreement with the defendant on the 6th January 2008 for (address) commencing on the 6th January 2008, then transferred the tenancy to (different address) for a fixed term of 12 months commencing on the 1st July 2008 at a monthly rent of £.
2. On the 6th January 2008 the claimant paid a deposit of £200 to (mr...) who was working on behalf of (company) by cheque as security against the obligations of the tenancy.
3. The claimant moved out of the property on the 1st July 2009. Upon leaving, was told that the company would return the deposit within 10 days.
4. Claimant is claiming for the return of the £200 deposit.
5. Under the Housing Act 2004 (Sections 212-215) a Landlord must secure a tenancy deposit in one of the Government’s three protection schemes. The deposit has not been protected in one of the schemes, and has been held by the landlord unlawfully. There was also no written notification within 14 days of the AST commencing of the whereabouts of the deposit.
6. Claimant is also claiming for the Fixed penalty fee of 3x initial deposit (£600) compensation for not protecting the deposit under one of the approved schemes.