Tenancy ended, deposit was not in TDS, what to do?

[RentedAndRankled]

Pickle;

 

I'm heading down the same route as you, but I started in the small claims court and I'm a little behind where you've got to, but I'd like to offer some advice (I'm NOT a qulaified solicitor, so you may want to double check this).

 

1) Do NOT, under any circumstances, get drawn into a discussion about the state of the property. If questioned by the defendants solicitor about anything other than the TDS and the sections of the housing act say that you would happily discuss other issues the defandant may have at a later date, but this case is solely about his failure to meet a statutory obligation. The only person who can get you off of this message is the judge, all the defendants solictor is trying to do is make you look bad either by confusing you or tarnishing your reputation. The judge will let you know if he wants you to answer a question further, but don't get drawn into a discussion that's irrelevant to the point of law you're relying on unless the Judge says so.

 

2) In terms of your documents, my personal opinion is that all you should send would be;

 

- A copy of the relevant sections of the housing act.

- A copy of your tennancy agreement (or any conditions you have in an email/letter), to show that it was an assured short term tennancy.

- The letters you have from the TDSes you've talked to

- Any form of correspondance with the TDS that has not responded, including any letter you've written to them asking for confirmation of 'phone conversations (e.g. Dear sir, I would like you to confirm in writing that you did not hold my deposit in an approved TDS during the period XXXXX to YYYY).

- Any correspondance you have had with the landlord in relation to the TDS.

- Any details of the previous offer to propose a settlement.

 

3) If the matter of mediation or settlement comes up, point out that following the previous hearing you have agreed to consider a settlement offer which the defendant said would be provided within 24 hours of the previous hearing and to date you are still awaiting their settlement offer.

 

4) The Judge may have not liked the way the law is written, but he is obliged to uphold it. Many judges have personal opinions about certain sections of law and that they should be improved, but that is their personal opinion and should not be allowed to affect the courts upholding of the laws of the country.

 

Good luck, and remember, stay on message and don't drift unless the Judge compels you to do so.

[RentedAndRankled]

Esio,

 

I think your off course here. As Planner points out the HA 2004 says;

 

"Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—"

 

and s213(10) reads;

 

"“relevant person” means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant"

 

Therefore even though I may no longer be a tenant I am still the person who paid the deposit on behalf of the tenant, therefore I still qualify as a "relevant person".

 

In my situation I only found out about TDS's when I was looking for a method of resolving a dispute about some deposit deductions. I'm sure I'm not alone in my method of discovery of TDS's, and I'm willing to bet that it is in the spirit of the law that tenants and ex-tenants should have this protection.

[RentedAndRankled]

Bit of an update on my case. The landlord filed his defense which boils down to him claiming that I was not part of an assured short term tenancy for two reasons;

 

1) No agreement was signed and it was an informal arangement.

2) The tenancy wouldn't be covered because only tenancies over six months are covered.

 

As I understand things this won't hold up for two reasons;

 

1) I don't know the LL, we negociated terms via Email, and he said we should sign a tenancy agreement (yes, I have this email and will be sending it to the court).

 

2) Anything starting after 28th Feb 1997 is an assured short term tenancy unless otherwise stated. The fact that our tenancy was for a minimum of two months is not relevant.

 

Does anyone here know anything that could cause me problems?

[RentedAndRankled]

The state of things as I understand it is as follows;

 

The term Assured Shorthold Tenancies (ASTs) was defined in the Housing Act 1988, but in it's original form your LL had to give you a notice that the tenancy was an AST for it to be an AST.

 

The Housing Act of 1996 modified the 1988 act to say that when relevant section of the 1996 act came into force (which was on the 28th of Feb 1997) the default type of tenancy was an AST, but the tenancy contract could override this by saying your tenancy wasn't. There are also several exclusions whereby a tenancy can't be an AST.

 

In most cases where you're paying a market rate in rent to a private landlord for your home your most likely to be in an AST, but not ALL tenancies are covered because S212(2) says a TDS is a scheme which;

 

"(a)is made for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies and facilitating the resolution of disputes arising in connection with such deposits..."

 

and S212(8) makes it clear that it only covers ASTs by defining a shorthold tenancy;

 

"“shorthold tenancy” means an assured shorthold tenancy within the meaning of Chapter 2 of Part 1 of the Housing Act 1988 (c. 50)"

 

If you want more information have a look at the guides from shelter and the CAB at;

Shelter: Assured shorthold tenancies

Private sector tenancies

[RentedAndRankled]

Looks like the wins are starting to come in;

 

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/117280-tenancy-deposit-scheme.html#post1474148

[RentedAndRankled]

I've just pointed out in another thread (http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/138758-tenancy-deposit-case-section.html#post1475818) that HM Court Service has no listing for a "Gloucester County Court".

 

Can you verify with your source the name of the court that the judgement was issued in.

[RentedAndRankled]

Personally I've not gone down the route mentioned by the Students Union in my case.

 

The reason being that the HA2004 only states that you should get your deposit back plus the three times penalty, it makes no mention of claiming interest.

 

The thing I'm bearing in mind is that the 3x penalty will more than cover the interest you would have seen on the money, so it's better to be fair than going for every possible penny.

[RentedAndRankled]

I disagree. Having been to court for other matters, it is expected that interest will be claimed on any money owed.

 

Pickle, if it were a debt then I would agree, but what we are talking about here is a statutory penalty which is clearly defined by the act thus;

 

"...order the person who appears to the court to be holding the deposit to repay it to the applicant..."

 

and

 

"...order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit..."

 

So in my view I see it as an application for a fixed fee as opposed to an application for monies owed.

[RentedAndRankled]

Sounds good pickle.

 

In your shoes, with your rolling deposit, I would settle for the full deposit back, plus any costs (court fees, etc.), plus interest.

 

I would have been tempted to say you should settle for statutory penality of the full deposit plus 3x, but given the recent outcome of the recent rolling deposit case I think that they would reject it out of hand and you'd end up in a hearing the outcome of which could go either way.

[RentedAndRankled]

If they don't submit anything they can still produce documents in court, all that will happen is that it will annoy the judge and you'll get the option of adjourning for a couple of weeks in order to study their documents. They may state that they were trying to negociate a settlement with you which is why they were late filing documents.

 

You may also want to check if the negociations are "without prejudice", if they don't mention it then it probably isn't, but details of without prejudice negociations can't be used during the hearing, so if you write anything which may weaken your position then make sure you mark it "without prejudice".

 

One other thing, don't stop the court case until you have the settlement. It's one thing for them to say "Yes, we'll give you your deposit back" and another for them to do it. Point out to them that until the cheque has cleared in your account you will be continuing the action.

[RentedAndRankled]

Talk to the court, explain the situation, and see if they can advise you the latest date by which you can cancel the hearing.

 

Once you have that date say that the money must be in your account before that date.

 

Banks can transfer funds in a few hours, so if they try to play you by saying that they want time to pay by cheque, or that they can't transfer the money quickly, then say that is their problem and they should look at using a CHAPS transfer which, if they request it before 1pm usually is credited in your account the same day.

 

If they pay late then explain in the hearing what has happened.

 

Remember one thing; They've had up until now to pay up and they chose not to, so don't do them any favours because they chose to leave it until now.