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Midwinter
23-03-2010, 12:45 PM
Hi there, I was wondering if any of you had any advice on this matter, I've searched around a lot, and done a fair amount of reading on the subject, but can't seem to find a recent case similar to mine.

A brief breakdown of my situation - I moved out of my old flat at the start of this month, my landlady returned half of my deposit and kept half as she wanted to get a quote for some minor repairing of some paintwork. At the time I was not aware of the Tenancy Deposit Schemes, so thought this was reasonable, but since then she seems to have come up with more and more elaborate reasons for why she is keeping the majority of the remaining £460 she owes us. Let me be clear here in saying that the flat was clean, tidy and in a much nicer state than when we received it.

She is very unrealistic about the whole affair, and we cant seem to come to any type of solution. She has not protected my deposit, and when I informed her of this law, and that I would be taking legal action if she didnt return my full deposit, she went out and protected the remainder of the deposit (a full three weeks after my departure, claiming that I'm living at the house for the next year!).

My question (after all that!) is whether I have good grounds to file an n208 form, (for the 3x penalty) being as I have suffered several financial penalites (bank charges etc) stemming from this, not to mention the stress it has caused? I would accept the return of my deposit in full, and settle the matter there, but being as I've made this clear all along, and she's still persisting, I don't think this is going to happen.

I've seen a similar case to mine, here are the details -


The August issue of Legal Action Magazine has two cases on tenancy deposit claims, which go to support tenants claiming against landlords who breach the tenancy deposit regulations. If you want to read the full stories, this is set out in Nearly Legal. However just to summarise:

Woods v.Harrington
This case involved a landlord who protected the deposit so late it was after the tenancy agreement had ended. The Judge held that was 'not only contrary to the letter of the law but is contrary to the spirit of the law and the public policy considerations that Parliament was seeking'. The landlord lost and was ordered to pay the penalty fine of three times the deposit sum for being in breach of the tenancy deposit regulations.

Thanks for your time, its much appreciated!

P.Pilcher
23-03-2010, 14:02 PM
A decision in a higher court has now clarified that the poorly drafted legislation should be interpreted such that if a landlord protects a deposit late that he should not be liable to the x3 penalty. However in your case, this landlord is clearly flouting the law as the deposit has never been protected. You should write to your ex-landlord and advise her that unless you receive your deposit refunded in full forthwith then you intend to take her to the SCC when she may be liable to a fine of 3x the deposit that she should have protected. Refunding a mere half of it is unsatisfactory and she needs proof of the damage she claims you have done during your tenancy before any of your deposit money can be retained. The tenancy deposit rules were introduced to prevent this very attitude from some ignorant landlords.

P.P.

Midwinter
23-03-2010, 14:16 PM
thanks P.Pilcher, thats good to know. I've heard about the recent High court decision, but as you said, just felt that in my case she has so clearly ignored the law, that I may be successful.

Thanks for getting back to me, its much appreciated.

Midwinter
23-03-2010, 14:17 PM
p.s If anyone else has an opinion, or has heard of a similar case, I'd really love to hear from you!

westminster
23-03-2010, 14:37 PM
My question (after all that!) is whether I have good grounds to file an n208 form, (for the 3x penalty) being as I have suffered several financial penalites (bank charges etc) stemming from this, not to mention the stress it has caused? I would accept the return of my deposit in full, and settle the matter there, but being as I've made this clear all along, and she's still persisting, I don't think this is going to happen.

I've seen a similar case to mine, here are the details -
Yes, N208 is the correct form, but note that it may well not end up in the small claims track, therefore you could be exposed to the defendant's legal costs. See
http://blog.painsmith.co.uk/2009/05/21/proper-place-for-tds-claims/

If you just want the deposit back, then firstly raise a dispute with the deposit scheme, and if the LL agrees to use the scheme's adjudication service, then the dispute can be settled that way. (Though, of course, the deposit may not be protected given that the LL has lied about the tenancy dates - call the scheme and ask).

Midwinter
23-03-2010, 14:47 PM
Thanks Westminster, thats a useful link, definitely something to think about. When I spoke to the DPS they seemed not to be interested in the fact the deposit protection was filed incorrectly (and fraudulently)

Perhaps I will try calling them again to find out what they can do in this case.

eramallid
24-03-2010, 07:09 AM
Totally agree with PP. I can only think this is a DPS training issue. I am sure they can't accept monies for the disputed portion of a deposit for a concluded (non existent) tenancy. For the record, as an interested industry observer, I have brought this thread to the attention of DPS - once clarified, I would suggest you pursue the landlady concerned - after all this was the purpose of the legislation. You can then negotiate from a position of strength, if you then want to be charitable, then that's up to you.

Midwinter
24-03-2010, 07:21 AM
Thanks eramallid, so do you think the DPS will get in contact with us via this thread? I'll also speak to the Scheme my landlady has used, and I'll post up what they say here. Thanks for taking the time to do that.

eramallid
24-03-2010, 09:07 AM
I am sure you will be contacted via this thread.

islandgirl
24-03-2010, 09:18 AM
I don't think so guys!

eramallid
24-03-2010, 09:24 AM
Which island? and so little faith.

DPS
24-03-2010, 09:54 AM
If you just want the other half of your deposit back, make sure it has been protected with the DPS and instigate the claim process (on-line) and claim all the deposit. Your LL will almost certainly dispute this, in which case you can both use the free ADR service or risk the courts, either way you would appear to be in a strong position if the tenancy dates don't tie up.

Contact the DPS asap and make sure that your deposit is protected and they have your contact details (mobile and email). That way the deposit cannot be released without your authority.

eramallid
24-03-2010, 10:28 AM
Well, Islandgirl we were both wrong;) However, I still don't understand how half a deposit from an expired (therefore non existent) tenancy agreement can be lodged with a TDP provider, particularly the custodial version and then be accepted as qualifying for their ADR process - particularly as DPS haven't had the benefit of the interest on the full deposit for the period of the tenancy which, as their only income stream, they rely on to fund the ADR overhead cost. But you live and learn.

westminster
24-03-2010, 11:49 AM
Well, Islandgirl we were both wrong;) However, I still don't understand how half a deposit from an expired (therefore non existent) tenancy agreement can be lodged with a TDP provider, particularly the custodial version and then be accepted as qualifying for their ADR process

I think the reason may be that the DPS simply acts as a stakeholder; you can lodge money with them before a tenancy has been signed (which may never be signed), so why not after - although the tenancy is not 'active' in either case, the money is still being held as security against the tenant's liabilities, in respect of a proposed, or a former, tenancy.

And it's not really 'half' a deposit; the half which has been returned is no longer a deposit.

It is also reasonable that the landlord should be able to comply, however late. Firstly because it's better than the LL hanging onto the cash - the money is safe in the DPS and the T has the opportunity to use the scheme's adjudication - and secondly because it would be unfair to create a law which cannot be complied with. (Though, of course, that is precisely the case if you wanted to use the TDS, which requires clauses to be inserted into the contract in order for the deposit to be protected).

eramallid
24-03-2010, 13:10 PM
My only comment is, that the equitable solution given the particular circumstances of this case, would be for the DPS ADR to operate IF the landlord was prepared to fund / make a significant contribution to the cost. If they weren't, then the monies should be automatically payable to the tenant.

DPS relies exclusively on interest to fund the operation of the whole scheme - admin & ADR. As they didn't have the benefit of earning the interest on the whole deposit during the currency of the tenancy, why should they respond to protect the interests of the landlord who has not conformed with the requirements of primary statute?

islandgirl
24-03-2010, 13:27 PM
Well Eramallid, you live and learn. I am sorry I am so cynical....can't help it! I also don't understand how you can lodge half a deposit - very strange.
My Island is a haven of peace and tranquility where everyone isn't out to get you and you don't question everything.....!

mind the gap
24-03-2010, 13:54 PM
My Island is a haven of peace and tranquility where everyone isn't out to get you and you don't question everything.....!

What % proof is it? :D

westminster
24-03-2010, 13:58 PM
My only comment is, that the equitable solution given the particular circumstances of this case, would be for the DPS ADR to operate IF the landlord was prepared to fund / make a significant contribution to the cost. If they weren't, then the monies should be automatically payable to the tenant.

DPS relies exclusively on interest to fund the operation of the whole scheme - admin & ADR. As they didn't have the benefit of earning the interest on the whole deposit during the currency of the tenancy, why should they respond to protect the interests of the landlord who has not conformed with the requirements of primary statute?

1. A deposit of £1,000 would earn the DPS the grand sum of £5 per year (as per current base rate); therefore an 'equitable' contribution to adjudication in this case would be slightly less than this. (All disputes cost more than the deposit in question earned for the scheme).

2. By protecting the deposit, the DPS is primarily protecting the interests of the tenant, not the landlord. As I said before, the money is now in safe hands, not held by the landlord.

jeffrey
24-03-2010, 14:27 PM
What % proof is it? :D
Either:
a. on balance of probabilities; or
b. beyond reasonable doubt.

eramallid
24-03-2010, 14:46 PM
1) I very much doubt that DPS are only earning that level of interest (.05%) - if they were then the scheme would be as financially compromised as TDS seems to be i.e. insufficient income to cover admin. & disputes overhead. Also, for the record, since every tenancy does not end in a dispute, the losses (disputes) of the few are paid for by the contributions (interest earned) of the many - to use the principles of 'insurance' analogy.
2) In this case, the landlord seems to be seeking a) a retrospective refuge from a significant financial penalty (£2700) whilst b) the use of services for her own financial benefit to which she has not contributed. Let her put the money in, as you advocate and which it appears she is allowed to, but she should not automatically benefit from the ADR, unless she is prepared to pay for it. Simples

eramallid
24-03-2010, 15:25 PM
My Island is a haven of peace and tranquility where everyone isn't out to get you and you don't question everything.....![/QUOTE]

I completely forgive you .... now, what are you taking and could you send me a pint please:p

westminster
24-03-2010, 16:33 PM
1) I very much doubt that DPS are only earning that level of interest (.05%)
The base rate is 0.5%, not 0.05%. I doubt they earn much more than 1%, equivalent to £10 per year for a deposit of £1,000.


- if they were then the scheme would be as financially compromised as TDS seems to be i.e. insufficient income to cover admin. & disputes overhead.
I imagine they are indeed in difficulty due to the plunge in interest rates since the scheme began.


Also, for the record, since every tenancy does not end in a dispute, the losses (disputes) of the few are paid for by the contributions (interest earned) of the many - to use the principles of 'insurance' analogy.
I am aware of that, which is precisely why I pointed out that an 'equitable' contribution would be not the cost of the adjudication as you suggested, but the amount of interest the deposit would have earned, if it had been protected for the duration of the tenancy.


2) In this case, the landlord seems to be seeking a) a retrospective refuge from a significant financial penalty (£2700) whilst b) the use of services for her own financial benefit to which she has not contributed. Let her put the money in, as you advocate and which it appears she is allowed to, but she should not automatically benefit from the ADR, unless she is prepared to pay for it. Simples

a)The recent High Court case (Dracott v Hannells (http://www.bailii.org/ew/cases/EWHC/QB/2010/217.html)) ruled that the penalty does not apply if the deposit is protected late (albeit that case involved a deposit protected late during the tenancy). However, the DPS seem to be saying above that post-tenancy protection is possible (and I have explained why I think this is logical), so I imagine the same legal principle applies.

b) Where is the 'financial benefit' to the landlord in using ADR? Many LLs choose to opt out because it tends to favour the tenant (and doing so costs the DPS nothing). The main benefit would be to the tenant, because there is at least a chance that the dispute will be settled that way (if the LL agrees), rather than the tenant being forced to pursue the deposit via the county court.

Midwinter
26-03-2010, 07:54 AM
Hello everyone, thanks for all your input, I've had a bit of a break through with all this, but I'm going to wait till its all sorted before posting what happened.

islandgirl
26-03-2010, 08:27 AM
I completely forgive you .... now, what are you taking and could you send me a pint please:p

The sheer joy of Landlordzone keeps me buzzing - who needs drink and drugs? (well, I do need drink occasionally....)

Midwinter
26-03-2010, 09:30 AM
yeah, this is a superb forum, so useful

islandgirl
26-03-2010, 16:23 PM
And frequented by such nice people of course

jeffrey
01-04-2010, 15:22 PM
...albeit that they don't use enough full stops [posts #25/#26, for instance!]

Midwinter
06-04-2010, 11:50 AM
Hi there, thought Id just let you know the outcome of my situation.

So when I found out that my Landlord had protected my deposit (several weeks after we vacated the appartment) I phoned up the company she used and asked for the account to be suspended pending legal action. I didnt hear anything for a little while, from the company, or my landlord, and after thinking about some of the posts you guys made I was considering just using the dispute system to sort all this out.

However, just before I started to do this, I received an email from the deposit protection company confirming that the account was suspended pending legal action (the legal action i was planning). Lo and behold my ex-Landlord (who must have received a similar email, emailed an hour later, saying that I would hear from the protection company shortly, and another hour or so later the Deposit company got in contact saying she had released all £460 I am owed. Yay!

I think she probably got spooked, by the threat of possible legal action, and the fact that the email came from the protection company (even though it was only informing her of something I had set in motion.)

Anyway, thanks for your help, I would have been really suprised if I had taken this to County Court and the judge had ruled against me, surely it would mean there was never any point in anyone protecting a deposit when they can just protect it if they have a dispute with their tenants, even if said tenants have already moved out...