Landlords Rights re:unprotected deposits

[Ruky78]

Hello all

So after a awful tenancy, which came to an end after exercising a break clause at the end of March. I am now having problems getting my full deposit back. Our landlady went awol towards the end of the tenacy despite many attempts at contact.

I instructed an agency to get the deposit back as I really didnt want anything to do with her. It turned out she never protected our deposit.

So acting through the agency, we gave her the opportunity to pay back the deposit. She ignored all communication from us and the court. Until the statutory demand was issued and amazingly now she choses to take action, instruct solictors and attempt to get the judgement set aside based on the fact she never knew about the claim??..(how did she know about the statutory demand I hear you ask...well exactly!!)..

The current situation is that, she has had the court moved to her local area for her convenience and we are waiting for a date. I have asked the agency if there is anything we can do apart from wait, their response is no, but I am very aware that they are an agency, and although they are solicitors, they are wont be acting on our behalf, just collecting the money, if/when it gets to that.

So many question is:
Is it possible that this landlady after ignoring, us and the court for months, can react at the last minute and get the demand set aside?.

Is there anything I could be doing in the meantime, apart from just waiting which is the agency's advice?.

And is it really possible she could up getting away with this and not paying anything!.

Really appreciate advice, I am contemplating going to a solictor, but I feel loathe to spend anymore money on this woman.

Thanks very much..

[Ruky78]

sorry... just to add to this, she has given some of the deposit back..but I would challenge what she has taken the money for. But obviously as the deposit was not protected I have no one to challenge?!

[Paul Gibbs]

The starting point is that she has a CCJ against her for the value of the deposit.

She can try to set aside the statutory demand, but that would have to be on the basis that the judgment is wrong. This means she would have to then also make an application to court to set aside the CCJ.

There are a few hurdles she must clear to set aside the CCJ. The first is that she has to satisfy the court that she knew nothing about the claim. The courts are often rather relaxed on this point, even though it is unlikely none of the court papers reached a defendant I have not seen a judge refuse on this basis.

The second hurdle is that the defendant must show they have a real defence to the claim. It does not have to be rock solid, but it must have merit.

Thirdly D must act promptly in making an application to set aside the CCJ. Case law suggests if an application has not been issued within 28 days of being aware of the CCJ D has not acted promptly and judgment will not be set aside.

If a month has passed since D received notice of the statutory demand (and therefore the presence of the CCJ) then she may really struggle to get the CCJ set aside.

If she now has no ability to set aside the CCJ, then the application to set aside the demand should fail on that same ground.

Who prepared and served the stat demand? The insolvency rules are very precise and you need to ensure your demand is not invalid.

[Ruky78]

Thanks Paul

I have clearly left out an important detail!. The money we are chasing is for 3x deposit. Not the actual deposit. We made a claim for the deposit, she paid an amount with reductions, reductions that I would challenge but as she hadnt protected the deposit I have no indpendent body to go through to challenge the reductions. During the tenancy she lied about protecting deposit, so we were under the impression she had protected, and I have emails confirming that.

We got a CCJ for 3x the deposit, and a statutory demand was issued, but this is what she is currently trying to set aside. I am assuming this is going to be based on the recent legislation, that now the tenancy has ended protecting the deposit is not longer relevant?.

In terms of the timing.. this is what we got from the agent.

On 14 July 2011 we sent out a statutory demand for payment and on 11 August 2011 received communication from xxxxxx Solicitors for D that they have now been instructed in this matter and are applying to the court to have judgement set aside as the defendant was not aware of the action.

We are now waiting notification from the court to this effect.

I will keep you posted of developments, but what this means is that the court will be asked for the case to be heard and D will defend this action.