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Tori Bellatrix
23-01-2008, 20:29 PM
Hi

Hoping the experts here can give me some advice ... :)

I've lived in my current rental since Aug 2006 and every 6 months I have signed new AST's ... the last being signed Aug 2007. I have since found out that my LL should have protected my desposit but hasn't! My LL also served notice on me in Dec (originally giving a months notice until I insisted it was actually 2 months!).

From reading through some posts I am aware that her notice is invalid as my deposit hasn't been protected however I am happy to move out and have since found somewhere new.

My LL is a odd person and likely to withhold my deposit for whimsical reasons .. If they do - can I pursue it for non-compliance even if I have moved out?

For info, no detailed inventory was completed - just something called a 'First Schedule' which lists a few items of furniture but not their condition.

Thanks

Planner
23-01-2008, 22:06 PM
Simple answer Yes.

The deposit should be in a scheme and you should have recieved certain information about that scheme within 14 days.

Once you leave you can sue for the deposit and x3 "compensation".

Of course, as you have stated, you dont have to leave as the section 21 is invalid.

Can I suggest you get the address details of the landlord (if you dont already know them) as this will make it easy to serve the court summons once you have left.

Surrey
23-01-2008, 22:08 PM
You'd have to check the notice you were served to be sure it's a valid S21 notice if you want to stay, but sounds like you might do better finding a more reasonable landlord (there ARE some out there, honest!) rather than fighting it.

However, you should search on here for threads regarding deposit protection to see the penalties your landlord might be liable for if he has not protected your deposit. First of all he will be obliged (ordered by the court so HAS to do it) to repay your deposit in full, and if you follow the procedure correctly you might even be able to get the court to order your landlord to pay you three times your deposit as well.

Get searching...

Tori Bellatrix
23-01-2008, 22:21 PM
Simple answer Yes.

The deposit should be in a scheme and you should have recieved certain information about that scheme within 14 days.

Once you leave you can sue for the deposit and x3 "compensation".

Of course, as you have stated, you dont have to leave as the section 21 is invalid.

Can I suggest you get the address details of the landlord (if you dont already know them) as this will make it easy to serve the court summons once you have left.

Thanks Planner ... I believe my LL is planning to move back in once I have vacated so I can use the rental address for correspondance. If by some chance my LL does return my deposit in full, would I be wrong in still claiming the x 3 compensation?

Tori Bellatrix
23-01-2008, 22:28 PM
You'd have to check the notice you were served to be sure it's a valid S21 notice if you want to stay, but sounds like you might do better finding a more reasonable landlord (there ARE some out there, honest!) rather than fighting it.

However, you should search on here for threads regarding deposit protection to see the penalties your landlord might be liable for if he has not protected your deposit. First of all he will be obliged (ordered by the court so HAS to do it) to repay your deposit in full, and if you follow the procedure correctly you might even be able to get the court to order your landlord to pay you three times your deposit as well.

Get searching...

Thanks Surrey, I'm sure the notice I served wasn't a valid S21 as I don't think it has all the presribed information required (regardless of the fact that my deposit isn't protected).

To be honest I'm happy to move out although I don't want to start any action whilst still residing in the property. This is the 2nd time she has asked me to leave early whilst having a 6 month AST claiming she needed the property back. The 1st time she changed her mind and the 2nd time is now although I had to correct her on her notice period.

Surrey
24-01-2008, 00:37 AM
Ah, just remembered something else. A landlord CANNOT use the Section 21 procedure UNLESS the deposit has been protected. So it doesn't matter a jot whether she's served you with a correctly dated notice or not, she won't be able to take you to court to get the place back in any case!

And Wickerman, is there any excuse for not complying with a law just because you didn't know about it? I don't think so, somehow. If a landlord is going to try to make some money (or even just cover the mortgage) by letting out a property, then it is their responsibility to ensure they comply with the law.

Tori Bellatrix
24-01-2008, 07:55 AM
There is always the option of withholding part of the rent to cover the deposit that you may not get back. I would only recommend this if you are 100% certain that you will not get the deposit back.

Unfortunately I can't do this as I've already paid my last months rent in full .. In the long run I think it is better if I can prove I kept to my side of the agreement ..


I personally think it wrong that you could get x3 deposit even if its returned - this would purely be a compensation culture mentality [1] and you would be trying to get something for nothing. The landlord may just be ignorant of the new regulations.

[1] Not that I am saying you have this mentality however plenty of people out there do.Ignornance is no defence of the law ... ;)

Seriously though, I'd have to think carefully about what to do 'if' my deposit is returned in full - I'm not sure if the fact I wasn't given an inventory is good or not ..

spacehopper_man
24-01-2008, 18:24 PM
..... would I be wrong in still claiming the x 3 compensation?

yes ! Landlords are people too - how would you like it.....

Planner
24-01-2008, 18:39 PM
yes ! Landlords are people too - how would you like it.....

Im quite sure that the majority (not all) of landlords that fall foul of TDS where the reason why TDS was brought in in the first place, and quite regullarly withheld depsoits for little or no reason. The laws the law, you have every right to sue for the x3 deposit both legally and morally in mho.

Tori Bellatrix
24-01-2008, 19:35 PM
yes ! Landlords are people too - how would you like it.....

Well I wouldn't but I dare say I wouldn't treat my tenants the way my LL has treated me or spoken to me before ... all quite unduly ...

Besides, whilst I accept that landlords are people, I'm quite sure my LL wouldn't worry about my feelings when dealing with business matters that she wasn't happy with :)

Tori Bellatrix
24-01-2008, 19:37 PM
Im quite sure that the majority (not all) of landlords that fall foul of TDS where the reason why TDS was brought in in the first place, and quite regullarly withheld depsoits for little or no reason. The laws the law, you have every right to sue for the x3 deposit both legally and morally in mho.

Thanks Planner .. :)

pcwilkins
25-01-2008, 09:18 AM
yes ! Landlords are people too - how would you like it.....

I'd like to think that I would have enough intelligence and honesty not to make the mistake in the first place.

Just because LLs are people, doesn't mean they are exempt from the law.

If a LL can't be bothered to keep up to date with new legislation, they deserve to be punished.

Peter

Tori Bellatrix
11-02-2008, 22:36 PM
Well, an update! My AST finished today and I have moved out! My LL said she wanted to inspect the property as expected but she gave me a non-neogotiable time for me to be there. I couldn't make it so she said she would inspect the property and meet me later ....

After she had inspected, she phoned me to say that whilst the upstairs was ok, she was unhappy with the oven fascia and hob. She said they had been scratched and she would need brand new replacements!! I said to her that the property had been cleaned thoroughly and there was nothing wrong with the items in question and that she had to allow for wear and tear! She then basically told me that she had my money and she could decide what was what ...

When I got to the property, she came over and literally balled me out for not taking care of her property, and everytime I tried to talk she literally shouted me down quite agressively! I was really upset with the way she treated me and by what she said - I have cleaned through-out, carpets professionally cleaned, garden professionally tidied, new loo seat, new mats, all nets and curtains cleaned....

The bottom line is that she has kept £458 out of my deposit (out of £650) and says I have to pay for a new oven and hob and for it to be fitted (for which she has guessed how much it would cost) ... I photographed these items and apart from wear and tear there really isn't anything wrong with them, They are fully operational and functional - However, when the LL installed them over 18 months ago, they were brand new and she expected them in the same condition.

She wouldn't compromise, didn't wish to discuss it and basically told me I'd have to accept it.

I may have pointed out earlier that she has not completed any inventory - all I had was a First Schedule which lists 3 items (none of which was the oven), didn't protect my deposit when I signed my renewal AST last August and I now literally feel like I've been steam rollered.

I suppose my only recourse is via the courts ... :(

Surrey
11-02-2008, 23:00 PM
I suppose my only recourse is via the courts ... :(

It would seem so, and I would also suggest a sternly worded letter to her summarising her behaviour, the lack of inventory etc etc etc.

Give her the opportunity, in writing, to repay your deposit in full by a given time - I suggest 14 days. State that if she does not repay the deposit in full by then, that you will have no alternative but to seek redress in the courts. Remind her that when you win, she will also be liable for court fees, which is another £100 or so.

If you have not had a response to her 7 days later, remind her, state that if the money is not received in 7 days you will not contact her again but will proceed to court. Mention that if a cheque is received and it is subsequently bounced or stopped, that again you will not contact her but will immediately commence court proceedings.

AND THEN DO IT. Don't threaten to do something you don't intend to follow up on. If things are as you say, you have an excellent case.

While you are waiting for her to send the cheque, fill in your claim, and perhaps get a little bit of legal advice on whether you have filled it in correctly. You might even want to attach a copy of it (unserved) with your "7 days left" letter to show her that you're not bluffing.

And seeing as she's been so horrid, you now need to pursue her on the non-payment of deposit into a scheme, as long as you have the most recent AST to use as evidence.

Keep us posted.

Tori Bellatrix
11-02-2008, 23:02 PM
Many Thanks Wickerman ... I feel I do have to take it further ... if only to get back what's fair from my original deposit ...

Tori Bellatrix
11-02-2008, 23:11 PM
Thanks for the info Surrey ... I will keep the thread updated with progress ... I'm absolutely gutted she has been so unreasonable ... and so nasty to me ... quite defamatory in fact .... I forgot to mention, she gave me a letter with my deposit which states that when I moved in, she personally told me about the cleaning of said oven and hob and said she even supplied cleaning materials ... none of which is true!

Surrey
11-02-2008, 23:30 PM
Thanks for the info Surrey ... I will keep the thread updated with progress ... I'm absolutely gutted she has been so unreasonable ... and so nasty to me ... quite defamatory in fact .... I forgot to mention, she gave me a letter with my deposit which states that when I moved in, she personally told me about the cleaning of said oven and hob and said she even supplied cleaning materials ... none of which is true!

Then refute that statement in your "give me back my money or else" letter.

The courts operate a paper trail - if she's made a statement and you haven't responded to it, then the court will of course believe that what she's said is true, as there is nothing from you to say it isn't.

And don't start about what's fair, either. The court process is nothing to do with "fair", it is to do with who has completed their paperwork correctly. So you make sure you do all of yours correctly, as it does seem your landlady hasn't got a scooby-doo and if that is true, she deserves what she gets.

Tori Bellatrix
11-02-2008, 23:41 PM
Lol ... I'll get a letter sent tomorrow and print off the claim papers in preperation .... I'll also look up 'Planners' thread for the sort of wording I need ...

Colincbayley
12-02-2008, 08:39 AM
You may also wish to have a look at this thread.

http://www.landlordzone.co.uk/forums/showthread.php?t=8739

pcwilkins
12-02-2008, 08:55 AM
Wickerman, I do see your point, and half-accept it, but just for argument's sake:


In response to earlier posts re the right to sue, by all means have the landlord pay for the mistake, but not to give the tenant the money.

I must say I am not sure why the law prescribes that the 3x penalty should be given to T. I guess it is to encourage T's to report LL's who don't protect deposits. After all, a T is unlikely to report a LL unless there is something in it for them.

Perhaps this is the only way in which those LLs who don't obey the new rules will be caught.


How far do you go though with suing landlords. Fine the landlord because the proscribed information was not handed over?

Yes, absolutely! Because if the info isn't handed over, there is no evidence that LL has complied with the scheme.


What about for the period where no-one knew exactly what information to give, in what format etc?

The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 was written on 13th March 2007. That's about 3 weeks before the new rules came into force. Admittedly that isn't long, and there's no doubt that TDS has been badly implemented, but 3 week should be long enough for any intelligent person to read and understand the Order. And it isn't that complicated. Any LL who didn't read and digest the new law in time has only themselves to blame.


For not submitting the deposit on time when the system was implemented on a bank holiday friday, with a following bank holiday so there was 4 days of the process with the custodial scheme closed for business - at a time when they would likely have huge call volumes?

Again, the scheme was badly implemented --- but a LL who was prepared for the new law should have still been able to get the deposit protected within 14 days.

And I doubt that there were that many new deposits being taken around the 6th April --- remember that TDS only applied to new tenancies created after the 6th, not pre-existing ones. Perhaps the intelligent LLs would have ensured that any tenancies which started around that time were signed before the 6th!

LL's should have known when the new law was coming in; they should have realised that the date fell on a bank holiday; and they should have taken account of that when signing new agreements.

And in any case, if a LL has been unable to protect a deposit on time due to reasons outside of his control, I imagine that provided he has evidence that he has tried and that it really wasn't his fault, a court would take that into account. Provided that LL protected it as soon as possible.


By encouraging tenants to sue (a "moral right to sue"? Oh to live on a planet that is that clear-cut)...

It isn't really "suing" as such --- it's reporting a LL who hasn't complied with the law. And it's only the LLs who are either dishonest or disorganised who will fall foul of the law; and they need to be caught, don't they? They're obviously not fit to be LLs.


you are fostering a situation where YOU could have the pants sued off you. For example you could have a CORGI chap booked in for an annual check, the tenant deliberately avoids being in for it and waits until the property has no gas safety in place and tries to sue you for it (or holds you to ransom over it - after all, it is £5000 fine (IIRC).

Sorry, but this is an entirely different situation! In this case it is clearly T's fault that the check was not carried out. If T has deliberately denied LL access to carry out repairs (or checks), T clearly forfeits his right to sue over those repairs (or checks) not being carried out.

In any case, if LL has T's permission to enter property to carry out the check, it doesn't matter if T is not there. And it T denies that permission, then T cannot expect to win if they try to sue LL for lack of gas safety cert.


I could go on and on with similar examples.

...but that example was completely irrelevant, so if the other are similar I guess they are irrelevant too? :rolleyes:

Peter

Colincbayley
12-02-2008, 09:13 AM
After all, a T is unlikely to report a LL unless there is something in it for them.

Peter

I'm not so sure about that statement!
The tenant would benefit by having their deposit protected, which after all is why the scheme was set up.

Tori Bellatrix
12-02-2008, 09:14 AM
You may also wish to have a look at this thread.

http://www.landlordzone.co.uk/forums/showthread.php?t=8739

Thanks, I will be keeping an eye on the progress of this thread also ... :)

pcwilkins
12-02-2008, 10:55 AM
I'm not so sure about that statement!
The tenant would benefit by having their deposit protected, which after all is why the scheme was set up.

Yes, but T is even more likely to report LL if T stands to gain 3x deposit!

Otherwise T might just decide to wait until LL doesn't return deposit before taking legal action.

Peter

Colincbayley
12-02-2008, 11:05 AM
Yes, but T is even more likely to report LL if T stands to gain 3x deposit!

Otherwise T might just decide to wait until LL doesn't return deposit before taking legal action.

Peter

Which is the precise reason the 3X penalty is there!

Esio Trot
12-02-2008, 11:20 AM
The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 was written on 13th March 2007. That's about 3 weeks before the new rules came into force.
Sorry but I do think you are being a little over generous in relation to our present government's timing and implementation of this SI.

Whilst this regulation was indeed signed off on the 13th March, it was not actually issued to the general public via HMSO's website until the next week - Wednesday 21st.

As far as I know, the draft regulation was not available to view before it was signed off. Thus even the scheme providers did not know for sure what the nuts and bolts of this SI contained.

And then to cap it all, it came into operation Easter weekend, when most officials and scheme providers were on leave.

Planner
12-02-2008, 12:04 PM
Sorry but I do think you are being a little over generous in relation to our present government's timing and implementation of this SI.

Whilst this regulation was indeed signed off on the 13th March, it was not actually issued to the general public via HMSO's website until the next week - Wednesday 21st.

As far as I know, the draft regulation was not available to view before it was signed off. Thus even the scheme providers did not know for sure what the nuts and bolts of this SI contained.

And then to cap it all, it came into operation Easter weekend, when most officials and scheme providers were on leave.

Wednesday the 21st... so two weeks notice then, not to mention the months and months and months of debate and news coverage to prepare people before hand.

And it came into operation easter weekend? Good Friday and Easter Monday, traditionally lots and lots of letting agents open those days?!!!! lots of deposits taken im sure - I think the timing is pretty irrelavant in honesty, saying on the off chance a depsoit was taken on Good Friday (6th April) the day the scheme started, it would have left a further 10 days for it to be registered with the scheme. Plenty.

pcwilkins
12-02-2008, 15:10 PM
Whilst this regulation was indeed signed off on the 13th March, it was not actually issued to the general public via HMSO's website until the next week - Wednesday 21st.

Point taken, but that's still over 2 weeks before the new rules were introduced. It took me all of two minutes to read the order just now.


And then to cap it all, it came into operation Easter weekend, when most officials and scheme providers were on leave.

But we all knew it was going to come into force on that date, didn't we? Why would anyway choose to start an agreement on that date, then? Go for the day before and you don't need to protect the deposit!

Peter

Esio Trot
12-02-2008, 15:15 PM
Wednesday the 21st... so two weeks notice then, not to mention the months and months and months of debate and news coverage to prepare people before hand.

And it came into operation easter weekend? Good Friday and Easter Monday, traditionally lots and lots of letting agents open those days?!!!! lots of deposits taken im sure - I think the timing is pretty irrelavant in honesty, saying on the off chance a depsoit was taken on Good Friday (6th April) the day the scheme started, it would have left a further 10 days for it to be registered with the scheme. Plenty.

But as a letting agent, although we were able to register with MyDeposits soon after the regulations were published, and download the application form. The sending of a cheque with the form, and not finding it cashed when Easter arrived, nor any confirmation, then starting to enquire with them if we had an account, and finding it difficult to get through. Eventually confirming that we had an account but then not being sent our access user code and password until 20 April, we found we were outside the 14 day limit on three properties.

Legally we (or ultimately the landlord) have no defence against the 3 x deposit "compensation", should a claim ever be made. I do not like being potentially liable to compensate someone for actions outside my control. Had the regulations been published a month before, it would have allowed for mist landlord/agent registrations to have taken place before D Day, and for a seemly introduction of the scheme.

pcwilkins
12-02-2008, 15:24 PM
I suspect if you sent a cheque off within the 14 days and it got lost in the post, meaning that the deposit wasn't actually protected until after the 14 days, a court would be reasonable and accept that these things happen. Wouldn't they?

Peter

Esio Trot
12-02-2008, 15:36 PM
I suspect if you sent a cheque off within the 14 days and it got lost in the post, meaning that the deposit wasn't actually protected until after the 14 days, a court would be reasonable and accept that these things happen. Wouldn't they?

Peter

This was the cheque to register with the scheme as an agent, no deposits could be registered until the agent/landlord had an working account. All registrations are then done on-line.

Planner
12-02-2008, 15:49 PM
But as a letting agent, although we were able to register with MyDeposits soon after the regulations were published, and download the application form. The sending of a cheque with the form, and not finding it cashed when Easter arrived, nor any confirmation, then starting to enquire with them if we had an account, and finding it difficult to get through. Eventually confirming that we had an account but then not being sent our access user code and password until 20 April, we found we were outside the 14 day limit on three properties.

Legally we (or ultimately the landlord) have no defence against the 3 x deposit "compensation", should a claim ever be made. I do not like being potentially liable to compensate someone for actions outside my control. Had the regulations been published a month before, it would have allowed for mist landlord/agent registrations to have taken place before D Day, and for a seemly introduction of the scheme.

I think the point is that you are using a very specific set of "what ifs", applied to a potential extremly small set of deposits taken on a limited number of days (two of which where bank holidays and one of which was a sunday), to generally argue against TDS. As inception day for TDS was nearly a year ago now, I think it would be worth while moving the argument on a bit rather than continuing to bang this outdated drum.

Tori Bellatrix
17-02-2008, 21:33 PM
Hi All, Just a quick update.

I've consulted a solicitor and a letter was sent on Friday this week informing my ex-LL that I disagree with the reasons for withholding my deposit, also informing the LL about her failure to protect my deposit and asking for it back within 14 days otherwise a claim will be issued without further notification. Also a paragraph on there saying that I also reserve the right to ask the court to fine her x3 deposit.

I'm not sure what she will do ... It's crossed my mind she might ignore the LBA but on the other hand I can see her coming up with some ludicrous excuse as to why the law doesn't apply to her and that she doesn't owe me anything ... time will tell ... :rolleyes:

ncooper1974
11-03-2008, 15:02 PM
any update here?
its been over 14 since you asked for your deposit back now....