I thought I ought to add something to this thread after a conversation I had with someone at the weekend. If the court makes an award in favour of the tenant the Landord can apply for a Variation Order which, if they can show financial hardship (i.e. a lot of negative equity on the properties or low income from rent), can leave the tenant waiting for a long time for the payment. The person who I talked to was involved in a TDS case where, at the rate of repayment the court set on the variation order, the tenant would have to wait a couple of years for the deposit to be repaid and nearly a decade (yes, nearly 10 years) for the full TDS penalty to be paid. This was all after the process of bringing the LL to court and starting to get payments from them took a year (so the T would see the deposit repaid to them 3 years after the tenancy ended). So please remember a CCJ of any sort may not neccessarily be paid quickly and so if you need the moeny it may well be better to try and come to an arrangement with the LL.

See http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme-3.html#post1682709 for more details.

There is one case where the T lost because the LL protected the deposit before the T lodged a claim with the courts. So far I know of no case where the LL has protected the deposit after a court claim and so it's been untested. The letter of the law appears to suggest that the T will win if the deposit is not protected at the time of application to the court (i.e. when you file your claim), but that isn't a guarantee.

I beleive the phase I'm looking for is... D'oh. Thanks for pointing that out .

Housing Act 2004, S213 part 8 defines the deposit as "a transfer of property intended to be held (by the landlord or otherwise) as security...". Doesn't this mean that a deposit could be goods and not necessarily money.

If the move-in inventory doesn't mention the items then they'll have difficulty claiming for them because you can always argue that if the items were ment to be kept why were they not listed on the inventory so that they could be checked at moving out time? The judge isn't at liberty to use their discretion with an award for non-TDS compliance. They can't refuse the 3x penalty just because they feel sorry for the LL, the judge can only refuse it on a point of law. If the LL can't pay then the problem is yours in so much as finding a way of getting the money from the LL and for that you can use the methods linked to in my previous post.

First off, As long as the LL hasn't put the deposit in a TDS you're pretty safe in claiming as long as the tenancy was an AST and the LL didn't live at the property. There are several methods which can be used to enforce a judgement, see the thread at http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/116744-got-judgment-how-get.html for more info. As per the counter claim, it will most likley come down to whats in writing. Do you have move-in and move-out inventories?, copies of the rental agreement and notices served?, written copies of the agreement to move out early? because if you're claiming it in court it will need to be proven usually via written means. This works two ways, so, for example you didn't break the locks, and you returned all the keys, unless there is a clause in tenancy agrement it's unlikley you'll be expected to pay for the lock changes.

I'm aware of at least one case that counteracts this where the T was given the award even though the application to court was made after the tenancy ended. The only successful defenses on the LLs part seem to be; - The tenancy was not an AST (and thus TDS rules don't apply). - The deposit was protected before the application to court was made (and thus the initial requirements of a scheme were complied with at the time of application). The only grey area seems to be; - If the application to court is made and the LL subsequently protects the deposit.

I can see where you're coming from, in my view it's best to keep court actions as focused as possible to avoid complications in the courts, so if the T doesn't mention it in the claim it means that any mention of it by the LL in the defense is irrelevant. If the LL wishes to start a counter claim for damages then, in my view, that is the place to address it, because, as you and planner have already agreed, non-compliance with the TDS is a very different matter to any dispute over the condition of the property. I'm not saying that the T should shirk resposibility for damages, I'm just saying that it should not be raised by the T as part of their initial claim, and, if the T wins at the hearing and the LL doesn't make a counter claim, the T may want to make a good will gesture to cover what they feel is reasonable.

Personally I'd leave the property condition out of the claim alltogether. The LL may mention it in their defence, or may try to make a counter claim, in which case it can be addressed in response to that, but make the claim about the TDS and only the TDS. Theres no point adding bits about the property condition to the claim because it only widens the scope that the claimant can be challenged on and makes it a valid topic for discussion at the hearing.

lefont; Clauses in a contract can not override the law of the land, therefore even though your contact says the LL will keep the money he is not legally allowed to do so because, if it is an AST, it must be lodged with a TDS. As the LL said he does not wish to discuss this further in my opinion (and I'm not legally trained) you have grounds to start you claim as pre-action negociations have faltered.

Please see http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117572-unfair-deposit-deductions.html

If you lived with the LL your unlikley to have an Assured Short-Hold Tenancy which is what you would need to have for the TDS rules to cover you. See section 1.2 & Appendix A of http://www.communities.gov.uk/documents/housing/pdf/138289.pdf

Blimey, looks like that clears up the confusion about deposits being protected prior to application, but it still leaves deposits being protected post-application in question. The article does hint that the time of hearing is important, and I would agree this makes sense, because after all the aim of the court is to ensure that law is adhered to, and so handing out a penalty after the LL has already made corrective actions to ensure he complies with the law does seem a little draconian.

I think it's created a grey area (possibly to help LLs). Taking the worst interpretation for tenants; Although 8.1 & 8.2 re-iterate the HA 2004, they do not explicitly state that a the TDS will not protect the despoit if those conditions are not met, they merely state what is in the law, whereas 4.1.4 explicitly states the deposit will be considered covered by the TDS even if the LL holds on to it.