Deposit not protected advice needed

[K_evin]

Hello, I am posting today in the hope that someone can give me some advice regarding the situation my daughter finds herself in with her land lady.

1)My daughter and her husband signed a new tenancy agreement in 2008, they had already been living at the same property, and had paid a deposit of £525, prior to the DPS coming into force.

2)They Recently gave notice to quit and the land lady acknowledged this and their tenancy came to an end on April 2nd .

3)The land lady on looking over the property was happy with the condition of the inside, but is trying to hold back £125 for damage to the garden fence. The fence was damaged in the wind recently and on inspection, one post is rotted off at ground level. The land lady is claiming that if my daughter had maintained the fence then the damage would not have been caused.

4)I asked my daughter to ask the land lady about details of which Deposit protection scheme their deposit was in. The land lady just said that it wasn't in a scheme, because it didn't have to be, This I know is not correct.

5)I have tried speaking to the land lady who refuses to deal with me, and she has told me to take her to court.

I am wondering what is the best way to go about things from here.

Thanks in advance

Kevin.

[westminster]

You are correct that the landlady should have protected the deposit. However, it is not unreasonable for her to refuse to deal with you, since you are not a party to the contract - has your daughter or her husband tried to negotiate?

Failing negotiation or compromise, your daughter and her husband have two options; send a letter before action, then


issue county court claim via form N1 or Money Claim Online for £125.
issue county court claim via form N208 for non-compliance under s.214 of Housing Act 2004


Option 1. will proceed via the small claims track, where costs are restricted and it is easy to pursue as a litigant-in-person. It's not entirely clear whether your daughter would be liable for the fence repair or not - she had an obligation to behave in a 'tenant-like' manner and this includes minor maintenance, as well as reporting disrepair before it worsens.

Option 2. may proceed via the mutli-track, where both parties are exposed to the other party's legal costs, and the claim may well be defeated by the defendant either protecting the deposit late (see second link below), or returning it (your daughter may get the £125 back but end up liable for court fees and the landlady's solicitor's fees).

See
http://blog.painsmith.co.uk/2009/05/21/proper-place-for-tds-claims/
http://blog.painsmith.co.uk/2010/02/12/high-court-decision-on-tdp/
http://www.opsi.gov.uk/ACTS/acts2004/ukpga_20040034_en_19#pt6-ch4

[K_evin]

Thank you for the quick reply westminster. The land lady has offered to give my daughter £400 back as of today, if she accepts this, do you think it would be possible to serve her with an NI and pursue the £125 Through the small claims route. I was thinking that if she accepts the £400 that would be an end to the matter.

Thanks again.

[westminster]

The land lady has offered to give my daughter £400 back as of today, if she accepts this, do you think it would be possible to serve her with an NI and pursue the £125 Through the small claims route. I was thinking that if she accepts the £400 that would be an end to the matter.

Only if your daughter agrees to the deduction of £125; so she should make it clear that she disputes it. This should be reiterated in the letter before action (keep a copy of the letter and post first class with a free certificate of posting, to be included as evidence in the claim).

Remember that the deposit is your daughter's money, and it is for the landlady to prove to the court that she is entitled to keep any of it, i.e. that she has suffered a loss as a result of a breach of the tenancy agreement.

I recommend buying a book on small claims procedure (look on Amazon), as it can be a little mystifying the first time.

[jeffrey]

Are we sure that this is an AST? Deposit protection applies only if it is.