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Mikestr
16-06-2010, 02:20 AM
Hi there,

I am assisting an uncle of mine who has been a landlord of the same building for more than 30 years.

The building is let as bedsits and he has a full HMO licence from the council.

The majority of the tenants have been living there for between 5 to 20 years or more with the exception of one tenant who was there since Aug 2008.

His tenancy was renewed every 6 months and his deposit was £300. His last period expired in mid may 2010 and was not renewed.

In early April 2010 he was advised in writing that we needed to refurbish his bedsit, that it would take about a week and that an alternative bedsit within the property would be provided.

The refurbishment was completed but he then started to complain that he had been inconvenianced by the work and that he did not want to pay for the week when he could not have his room. My relative then became aware from the other tenants that he had in fact not been staying in the alternative room that was provided.

A meeting ensued btween him and my uncle where it became clear to my uncle that he was using the refurbishment as an excuse to end his tenancy early, as he had a job in another part of London and had secured alternative accommodation in that area.

He wanted his deposit back along with an extra week for his 'inconveniance' and not being able to stay in his original room. When my uncle said he could have his deposit back but he had to pay for the week for the alternative room that had been provided he stormed off. By this stage he was 2 weeks in arrears of his rent.

After a week he wrote to my uncle enclosing the keys to his room and asking for his deposit back. However he did not provide my uncle with any forwarding address or bank account to pay him his deposit, only a phone number which when my uncle tried dialling was not answered, although my uncle did leave him 2 messages to call.

My uncle did however write to his work address at the end of Apr 09, which he had provided back in Aug 08 as a reference from his boss when he moved in to the property, asking him to contact him so that the matter could be settled now that the keys had been returned. This letter was sent by special delivery but no reply was received, until this week.

He has taken out a county court summons for the return of his £300 deposit along with asking the court to get my uncle to pay a fine for not being part of a tenants deposit scheme. He is not providing his new home address but his work one, knowing full well that my uncle would be able to get confirmation from the new landlord as to when he moved in.

Now at this point I would point out that although my uncle is responsible as the landlord for needing to know about the in's and out's of legislation he genuinely was not aware of this new law. He has an unblemished record with tenants and councils alike for over 30 years and now that he is aware of the new law he is advising his tenants that he does not wish to hold on to their deposits and will be returning them, and is isssuing new agreements reflecting this.

My uncle is proposing to write to the court giving them a full explanation of the events along with his documentary evidence and enclosing payment for the £300 deposit.

Does anyone have any useful suggestions that he can add to his letter?

thesaint
16-06-2010, 07:42 AM
Has the tenant issued the court proceedings via the small claims track?
Does he still work at the place where the letter was sent? Does your Uncle still have the letter and envelope?

Instead of returning the deposits, he should protect them for free.

Mikestr
16-06-2010, 11:22 AM
Hi Saint,

Yes the tenant has gone through the small claims track.

Yes his address on the court papers are the same as his work reference letter supplied when he moved in.

Yes my uncle still has the letter and the envelope.

Yes I mentioned to him yesterday about the free deposit scheme. I have explained to him that it is not that complicated and as most of his residents have been there a long time it would not be to bureacratic.

westminster
16-06-2010, 14:39 PM
The majority of the tenants have been living there for between 5 to 20 years or more with the exception of one tenant who was there since Aug 2008.....

...now that he is aware of the new law he is advising his tenants that he does not wish to hold on to their deposits and will be returning them, and is isssuing new agreements reflecting this.
Deposit protection applies only to Assured Shorthold Tenancies created or renewed (i.e. signing a new fixed term contract) on or after 6th April 2007.


My uncle is proposing to write to the court giving them a full explanation of the events along with his documentary evidence and enclosing payment for the £300 deposit.

Does anyone have any useful suggestions that he can add to his letter?
Your uncle needs to submit a defence to the allegations contained in the claim. He should not send a cheque to the court, but to the ex-tenant, (and say he has done so in the defence). In addition to describing how the T did not give proper notice, did not provide a forwarding address, and did not respond to an attempt to contact him via a work address, etc, your uncle should also point out:


that T did not send a 'letter before action' (i.e. a letter telling your uncle that he intended to take legal action, and giving your uncle the opportunity to resolve the matter before going to court)

that T has not provided a residential address on his claim form



And your uncle should counter-claim for any rent arrears, and rent in lieu of notice (because if he doesn't claim, the court can't award it to him).

westminster
16-06-2010, 14:44 PM
In early April 2010 he was advised in writing that we needed to refurbish his bedsit, that it would take about a week and that an alternative bedsit within the property would be provided.
A landlord is not entitled to carry out refurbishment without obtaining the express consent and agreement of the T. Therefore, LL cannot just 'advise' the T that this is what's going to happen.


Now at this point I would point out that although my uncle is responsible as the landlord for needing to know about the in's and out's of legislation he genuinely was not aware of this new law. He has an unblemished record with tenants and councils alike for over 30 years
That may be, but it really sounds like your uncle needs to learn more about the legalities of letting.

thesaint
16-06-2010, 14:56 PM
Luckily, your Uncle had included a cheque in the registered letter for the return of the deposit.

westminster
16-06-2010, 15:05 PM
Luckily, your Uncle had included a cheque in the registered letter for the return of the deposit.
OP does not state that the uncle sent a cheque with the letter.


My uncle did however write to his work address at the end of Apr 09, which he had provided back in Aug 08 as a reference from his boss when he moved in to the property, asking him to contact him so that the matter could be settled now that the keys had been returned. This letter was sent by special delivery but no reply was received, until this week.

Mikestr
16-06-2010, 16:22 PM
My uncle had not sent a cheque as the details he had were from 18 months prior and was only a reference letter from his boss. There was no certainity that he was still at this address and his letter sent with the keys had no address details on it, only the envelope which had my uncles property address.
With regards to the work in his room he was advised in writing by the housekeeper and was followed up by the housekeeper a few days later when he had not replied who verbally confirmed with him if it was ok to start the work and he said yes.
To my uncle it is obvious that he was using the excuse of the works as a smokescreen in that he wanted to leave prior to the end of his tenancy because he had secured another property near where he worked, and that he wanted the deposit back and not to pay for his outstanding rent. It was good timing for him that the works coincided when he wanted out.
My uncle does know a lot about the legalities and responsibilities of renting but he genuinely was not aware of protecting deposits, it may not be a defense but that is the truth of it.
I have advised him to send the court the payment made in the name of the tenant and hope that a judge does not see fit to take it further, and furthermore if it helps to get the remaining tenants if it does go further to provide statements regarding the excellent conduct of my uncle as a responsible landlord.

westminster
16-06-2010, 17:31 PM
I have advised him to send the court the payment made in the name of the tenant and hope that a judge does not see fit to take it further.
As I have already said above, do NOT send the cheque to the court, send it to the tenant.

The tenant is claiming for non-compliance with deposit protection (the sanction is 3x the deposit amount), and although repaying the deposit is a defence, it will not in itself result in the claim being struck out by the court. Nor will the tenant necessarily choose to discontinue the claim.

Mikestr
16-06-2010, 21:23 PM
Westminster, thank you for your guidance.

Should we say anything in particular in the letter when we send the cheque to the tenant, and should as he is writing from his work address ask him if he has permission to accept service in the event that my uncle brings a claim against him for loss of rent from his company, perhaps even ask him for his home address?

With regards to the court letter my uncle submits his defence and confirms that the claim account has now been sent as we have been provided with a forwarding address?

thesaint
16-06-2010, 22:25 PM
It's a shame that your uncle didn't send a cheque in the envelope that was returned back to the himself unopened, as this preceeded the court claim.


I thought that the small caims court couldn't deal with a 3 x penalty anyway?

mind the gap
16-06-2010, 22:32 PM
It's a shame that your uncle didn't send a cheque in the envelope that was returned back to the himself unopened, as this preceeded the court claim.


............................what? :confused:

Snorkerz
16-06-2010, 22:45 PM
The tenant is claiming for non-compliance with deposit protection (the sanction is 3x the deposit amount), and although repaying the deposit is a defence, it will not in itself result in the claim being struck out by the court. Nor will the tenant necessarily choose to discontinue the claim.


I thought that the small caims court couldn't deal with a 3 x penalty anyway?

Wesminster: is the fact that the claim was not submitted as a "Part 8" relevant? Can the court change it from "Part 7" to "Part 8"?

Mikestr: Rather than return the deposit, you could protect it for free at http://www.depositprotection.com . By doing this, you would still have a chance of claiming against the deposit. At the time of writing, this would prevent any claim for 3x deposit being successful - however there is a High Court case pending decision which may alter this.

westminster
16-06-2010, 22:58 PM
Should we say anything in particular in the letter when we send the cheque to the tenant
Keep it simple and just say that the cheque is a refund of the deposit paid on [date]. Keep a copy of the letter/cheque and send first class with a free certificate of posting (signed for services can go undelivered if recipient refuses to sign etc).


and should as he is writing from his work address ask him if he has permission to accept service in the event that my uncle brings a claim against him for loss of rent from his company, perhaps even ask him for his home address?
As I said before, your uncle should make a counterclaim to the tenant's claim (not a completely separate claim). Your uncle will have been sent a form headed 'Defence and Counterclaim' - like this
http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=659
This is the form to use to make the defence and the counterclaim (he can attach extra pages to the form, just put the claim number and claimant/defendant names at the top). It is fine to use the work address because the tenant has made the mistake of using it.


With regards to the court letter my uncle submits his defence and confirms that the claim account has now been sent as we have been provided with a forwarding address?
I don't quite understand what you are saying - but your uncle should say he sent the cheque for £x to the tenant on [date] in his defence (and why he couldn't send it before etc). And don't forget to mention the additional points 1. & 2. I suggested in a previous post.

westminster
16-06-2010, 23:11 PM
Wesminster: is the fact that the claim was not submitted as a "Part 8" relevant? Can the court change it from "Part 7" to "Part 8"?
Yes, but if the uncle makes a counterclaim, this would probably mean it'd go via the small claims track. Also, it's to the uncle's advantage not to have it go via the multi-track (no risk of costs - not necessarily legal costs, but court fees which are over £1,000 for the multi-track).


Mikestr: Rather than return the deposit, you could protect it for free at http://www.depositprotection.com . By doing this, you would still have a chance of claiming against the deposit. At the time of writing, this would prevent any claim for 3x deposit being successful - however there is a High Court case pending decision which may alter this.
In Draycott v Hannells the deposit was protected late, but during the tenancy, and I've wondered whether the ruling would still apply with a deposit protected after the tenancy ended. But it's perhaps still safer than returning the deposit, and does have the advantage of keeping the deposit in the frame if LL wins and gets an order for unpaid rent. I didn't suggest it because OP indicated that the uncle is averse to deposit protection.

Snorkerz
16-06-2010, 23:14 PM
OP says the uncle is so completely averse to deposit protection.My impression was ignorance rather than aversion. However, OP can take their choice ;)

westminster
16-06-2010, 23:22 PM
My impression was ignorance rather than aversion. However, OP can take their choice ;)
Yes, I slightly edited my comment after re-reading OP's initial post. I gained the impression because the uncle is busy refunding all the T's deposits and issuing new contracts, yet OP said he had explained about the DPS. Obviously far less bother, and more security, for the uncle just to protect the protectable deposits, but for whatever reason he doesn't see it that way.

Mikestr
17-06-2010, 08:04 AM
Thanks for all your assistance.

When sending the cheque to the tenant should it include the £25 court fee or only the deposit amount?

thesaint
17-06-2010, 09:00 AM
Thanks for all your assistance.

When sending the cheque to the tenant should it include the £25 court fee or only the deposit amount?

Why is he sending it to the ex tenant?
If the tenant receives it, and doesn't cash it, what will your Uncle do?

Just protect it for free!

Mikestr
17-06-2010, 10:37 AM
hi Saint,

If it is protected now after the tenant has moved out won't that look 'odd' to the court?

I read the earlier thread about a test case coming up on this but will it help?

westminster
17-06-2010, 11:18 AM
When sending the cheque to the tenant should it include the £25 court fee or only the deposit amount?

Just the deposit.


If it is protected now after the tenant has moved out won't that look 'odd' to the court?
Not really. It'll just look like he wants to comply with deposit legislation.

Returning the deposit or protecting it late are both defences to a claim for non-compliance. See these blog posts which explain why - up to your uncle how he decides to proceed (if he chooses protection, he must also send T the prescribed information and keep evidence of having done so):

http://blog.painsmith.co.uk/2010/02/12/high-court-decision-on-tdp/
http://nearlylegal.co.uk/blog/2009/04/tenancy-deposit-it-gets-worse/


I read the earlier thread about a test case coming up on this but will it help?
The cases have already been heard, but we don't know the decision yet. It might confirm that late protection gets LL off the hook, or it might not - so it's impossible to say whether or not it'll help your uncle. Also impossible to say whether returning the deposit or protecting it late is the better defence - the rulings will almost certainly be known by the time your uncle's case is heard, but meanwhile nothing is certain.

Is your uncle familiar with the proper notice T must give in a periodic tenancy, i.e. at least one month and expiring at the end of a rental period? Because he should counterclaim for as much rent in lieu of notice as possible, given that he is facing a possible order to pay £900 + court fees.

Mikestr
17-06-2010, 20:57 PM
My uncle has decided that Westminster's suggestion of returning the deposit to the tenant by ordinary mail and informing the court of this as well as the reason why we were not able to return it earlier with no address and adding all the other facts as mentioned and counterclaiming for the rent not paid is the best way forward.
If anynone has anthing else they think that we should add please let us know otherwise I will advise in the future of the outcome, thank you.