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

[clavileno]

i'm not fimiliar with this forum thing but what was the "quote" you posted at the top of your reply?

 

Sorry, rather than quote a long post, it is common practice on forums to paraphrase briefly but in such a way as to make it clear it is not a quote.

 

To clarify:

 

the "unfortunate stuff" was your account of less-than-acceptable housing and other matters

 

the "spurious stuff" was the suggestion that it was reasonable to issue proceedings and use up court time against a landlord or agent who had actually returned your deposit.

[Planner]

OK today received AoS from their solicitor saying they object to the proceedings continuing under part 8 of the CPR and intend to file a fully detailed statement within 14 days with their clients objections to the proceedings, they'd be grateful if I confirm I have no objections to that???

 

Edit, just found this

 

Procedure where defendant objects to use of the Part 8 procedure 8.8 (1) Where the defendant contends that the Part 8 procedure should not be used because –

 

(a) there is a substantial dispute of fact; and

 

(b) the use of the Part 8 procedure is not required or permitted by a rule or practice direction,

 

 

he must state his reasons when he files his acknowledgment of service.

 

(Rule 8.5 requires a defendant who wishes to rely on written evidence to file it when he files his acknowledgment of service)

 

(2) When the court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.

 

(Rule 8.1(3) allows the court to make an order that the claim continue as if the claimant had not used the Part 8 procedure)

 

That looks to me as though they should have given their reasons with the AoS.

 

It will be interesting to see what their argument is! either they have complied with TDS or they havent, whats the substantial dispute of fact I wonder? (assuming they are relying on that part of it!). I wouldnt be to worried, the jusge will allow the claim to be dealt with under the more usual N1 route. Before I responded stating if I had any objections I would clarify the reasons why they think it shouldnt be dealt with under part 8. If they say there is a "substantial dispute of fact", then I would object because there isnt.

[Planner]

 

the "spurious stuff" was the suggestion that it was reasonable to issue proceedings and use up court time against a landlord or agent who had actually returned your deposit.

 

I know, imagine someone breaking the law and then expecting the court to deal with it! how ridiculous!

[aBitofaPickle]

Thanks Planner, I'll write to the solicitor and ask them

[clavileno]

I know, imagine someone breaking the law and then expecting the court to deal with it! how ridiculous!

 

[Edited to add: it isn't "breaking" the law at all, since this is not a criminal matter. The relevant law is broadly a non-negotiable civil contract - if the landlord doesn't do something and if the tenant applies to the County Court then the Court must award some damages.]

 

As has been said already, it is unknown how courts are going to react to this regime.

 

In general, there seems to be a bit of a problem at the moment where a deposit has been safely returned yet wasn't put into a scheme. Where is the loss suffered by the tenant in this circumstance?

 

Rather more importantly, where is the legislation to govern that? I've just gone and read the relevant sections of the Housing Act 2004. It is, I'm afraid, not clear that they apply where there is no longer a deposit (i.e. it has been returned). The relevant part is Chapter 4, and specifically section 214. The section deals with what happens when there is a deposit being held by the landlord, but not when there is no deposit currently being held.

 

Since Pinkmilk's deposit has been returned, my view is that it is unclear whether s.214 applies and whether the penalty of "triple damages" can be applied-for. To get this clarified would take a trip to the higher courts, which I'm sure neither Pinkmilk nor his/her former landord would be prepared to pay for. Without case law to suggest that s.214 applies in this circumstance, I would have to say I think it doesn't and that, therefore, Pinkmilk going to the County Court over this is ill-advised and possibly a complete waste of everybody's time.

[Planner]

[Edited to add: it isn't "breaking" the law at all, since this is not a criminal matter. The relevant law is broadly a non-negotiable civil contract - if the landlord doesn't do something and if the tenant applies to the County Court then the Court must award some damages.]

 

As has been said already, it is unknown how courts are going to react to this regime.

 

In general, there seems to be a bit of a problem at the moment where a deposit has been safely returned yet wasn't put into a scheme. Where is the loss suffered by the tenant in this circumstance?

 

Rather more importantly, where is the legislation to govern that? I've just gone and read the relevant sections of the Housing Act 2004. It is, I'm afraid, not clear that they apply where there is no longer a deposit (i.e. it has been returned). The relevant part is Chapter 4, and specifically section 214. The section deals with what happens when there is a deposit being held by the landlord, but not when there is no deposit currently being held.

 

Since Pinkmilk's deposit has been returned, my view is that it is unclear whether s.214 applies and whether the penalty of "triple damages" can be applied-for. To get this clarified would take a trip to the higher courts, which I'm sure neither Pinkmilk nor his/her former landord would be prepared to pay for. Without case law to suggest that s.214 applies in this circumstance, I would have to say I think it doesn't and that, therefore, Pinkmilk going to the County Court over this is ill-advised and possibly a complete waste of everybody's time.

 

I would have to disagree. There are criminal laws and civil laws. Civil laws can be broken just as criminal ones can, you can argue semantics all you like. Have a look at the parliament web page, it may go some way to correct your poor grasp of the concept "Law" UK Parliament - Acts

 

I would have to disagree that because the deposit has been returned the o/p shouldnt claim. I suggest you have another read of the act. The sanctions for non-complaince are just that sanctions for non-complaince, not sanctions for not returning the deposit. The actual non-complaince occurs 14 days after the tenant has ended over the deposit, this as either been complied with or it hasnt, the tenant would then have 6 years to bring forward a claim for non-complaince. Simple as, I cant see any need for this to be tested in a higher court when its black and white in the act.

 

As you say the courts are yet to decide... strange you then go on to say its ill-advised and a waste of everyone time, how do you know if the courts are yet to decide?!

[clavileno]

I would have to disagree. There are criminal laws and civil laws. Civil laws can be broken just as criminal ones can, you can argue semantics all you like. Have a look at the parliament web page, it may go some way to correct your poor grasp of the concept "Law" UK Parliament - Acts

 

I would have to disagree that because the deposit has been returned the o/p shouldnt claim. I suggest you have another read of the act. The sanctions for non-complaince are just that sanctions for non-complaince, not sanctions for not returning the deposit. The actual non-complaince occurs 14 days after the tenant has ended over the deposit, this as either been complied with or it hasnt, the tenant would then have 6 years to bring forward a claim for non-complaince. Simple as, I cant see any need for this to be tested in a higher court when its black and white in the act.

 

As you say the courts are yet to decide... strange you then go on to say its ill-advised and a waste of everyone time, how do you know if the courts are yet to decide?!

 

OK, I am not a landlord, I am a tenant. I still think the penalties are draconian. I think the principle of a private individual claiming for a loss that has not happened is wrong. If the Government had wanted a properly robust system, they would have set up a watchdog/regulator/agency to whom complaints could be made and who could take action against landlords. At the moment it is DIY regulation on the cheap.

 

It is for those reasons that I think it is a waste of everybody's time.

 

As to the wording of the law, here we go:

 

(3) The court must, as it thinks fit, either—

(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

 

It is clear (to me, at least) from the tenses and language used that the drafters of this legislation imagined that proceedings would be happening whilst there was a deposit being held. Since that isn't the case here, it is not clear to me that the issue is clear-cut.

 

Edited to add: (3) cannot be complied with, even though the act says it "must" happen; in the absence of (3) and following the language, (4) cannot apply because it is an "also" to something that cannot happen.

 

The very fact that we disagree about that indicates that it is not clear-cut. There is no excuse for that in modern legislation - it should be crystal clear, and I believe it is not.

[Planner]

OK, I am not a landlord, I am a tenant. I still think the penalties are draconian. I think the principle of a private individual claiming for a loss that has not happened is wrong. If the Government had wanted a properly robust system, they would have set up a watchdog/regulator/agency to whom complaints could be made and who could take action against landlords. At the moment it is DIY regulation on the cheap.

 

It is for those reasons that I think it is a waste of everybody's time.

 

As to the wording of the law, here we go:

 

(3) The court must, as it thinks fit, either—

(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

 

It is clear (to me, at least) from the tenses and language used that the drafters of this legislation imagined that proceedings would be happening whilst there was a deposit being held. Since that isn't the case here, it is not clear to me that the issue is clear-cut.

 

Edited to add: (3) cannot be complied with, even though the act says it "must" happen; in the absence of (3) and following the language, (4) cannot apply because it is an "also" to something that cannot happen.

 

The very fact that we disagree about that indicates that it is not clear-cut. There is no excuse for that in modern legislation - it should be crystal clear, and I believe it is not.

 

Again I would have to disagree. What will happen is that the court will do 3(a) order the person who appears to the court to be holding the deposit and then

(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

 

It is immaterial that the landlord as already repaid the initial deposit, as the court order will not distinguish between the defendant paying the claimant £x for deposit and £x for non-complaince it will simply be one amount, from which the amount already repaid will be offset.

 

I have clicked on your user name and had a breif read of other posts you have submitted in other areas of the form. Its pretty apparent that your not disagreeing to correct a mistake but just disagreeing for the sake of it, which is disapointing.

[aBitofaPickle]

Latest info. I received the statement from the solicitors. It is a copy of all correspondence relating to ending the tenancy (all run of the mill). A copy of my tenancy agreement, and a statement from the agent. In the first page of his statement he says that my deposit was held under the TDS.

 

I have read through the relevant section of the tenancy agreement and I don't think they have met there obligations with this.

4.7

Where a dispute or difference relating to the treatment, application or repayment of the deposit remains unresolved over 28 days after the end of the tenancy the dispute can, with the written agreement of both parties, be referred to the Chairman or Chief Executive of ARLA (Association of Residential Letting Agents) for the appointment of an arbitrator or expert or an appropriate alternate dispute resolution process, to provide an adjudication on the dispute.

My last letter to them had a wrong digit in the return address and they had responded to that with

"...photographic evidence taken at the commencement of your tenancy detailing any defects to the property and if that bedroom had been in a half decorative state this would have been documented at the time.

 

Therefore, I would be grateful if you could confirm what course of action you intend to take to make good this bedroom.

 

I also enclose, as requested by you, documentation referrring to our Deposit Scheme."

 

Accompanying that are pages of grainy B&W photographs (57) with no date and the bedroom in question is taken from one angle and does not show the wall in question.

 

With this there is a copy of ARLA's Information for Landlords and Tenants 'Tenancy Deposit Protection' leaflet and 4 pages of a form which looks like it should be completed at the beginning of a tenancy which says

TENANCY DEPOSIT PROTECTION PRESCRIBED INFORMATION (HOUSING ACT 2004)

 

It has the landlords details filled in and nothing else, not even the address of the property.

 

This letter was returned to them as not at this address, bear in mind I had given them my forwarding address in my letter ending the tenancy, they had already written to me there, and they had my telephone number and email address. The address they had written to was one digit out, which they had taken from my letter, although the TA says that they will use either the rented address (mail is redirected) or the forwarding address given on handing in notice, which was right.

 

The statement goes on to say had I received the letter the claim would not have been made as the information regarding the tenancy deposit scheme would have been with the claimant and appropriate steps would then have been taken by both sides to resolve the issues.

 

The defendant believes that no breach of the Housing Act 2004 has been made as the deposit was held in a Tenancy Deposit Scheme.

 

I think they are still in breach, how do I proceed with their request that I confirm I have no objection, to their objection to the proceedings continuing under Part 8 CPR.

 

The attachment they have sent is the AoS where they have ticked they intend to contest the claim.

 

They object to the claimant issuing under this procedure

Reasons:

There are substantial issues of both fact and law and it is disputed that the claimant is entitled to the relief sought or at all. Accordingly the proceedings should have been commenced under CPR Part 7 not 8.

 

They intend to rely on written evidence which will be filed within 14 days.

[Planner]

This is all a bit of a mess.

 

Is the Depsoit held in a TDS or not? - Im affraid im still not sure, are you?

 

What TDS have you been told the deposit is held in? Have you rang them to confirm they do hold your deposit? Have you asked them to confirm when the deposit was placed in the scheme? How does this relate to the 14 day rule?

 

If it is held in a scheme then why have the agents/ll not dealt with your complaint concerning deductions through the procedures set up in the scheme?

 

Key question is it in a scheme or not and when was it placed in said scheme? then we will know how to proceede.

[aBitofaPickle]

This is all a bit of a mess.

 

Is the Depsoit held in a TDS or not? - Im affraid im still not sure, are you?

 

The statement says the deposit was held by the agent who had adopted a TDS, and the deposit was held under that scheme.

 

 

What TDS have you been told the deposit is held in? Have you rang them to confirm they do hold your deposit? Have you asked them to confirm when the deposit was placed in the scheme? How does this relate to the 14 day rule?

 

I haven't been given the name of a scheme, the form they've sent out, which is the sort you would fill in to register the deposit, is a standard printed form, it still has areas on it that need editing to suit the agent.

 

If it is held in a scheme then why have the agents/ll not dealt with your complaint concerning deductions through the procedures set up in the scheme?

 

Another reason I think it isn't in one.

 

Key question is it in a scheme or not and when was it placed in said scheme? then we will know how to proceed.

 

How would I find out. I did try phoning the schemes when I started this and they said that if I was with them I would have had notice from them.

[Planner]

Then why not give the solicitors a ring and ask which of the three schemes was your deposit held in? And then contact that scheme and see if it was with them and when it was registered.

 

Let us know the outcome. We can then have a look at the scheme procedures for dealing with disputes. I think all the schemes require the tenant to agree with deductions before a depsoit can be released.

 

Im dubious that it is actually held with a scheme, but we need to be sure in light of this "new evidence"!!!

 

It still doesnt mitigate the fact that you have recieved none of the prescribed information!

[aBitofaPickle]

Result..I think

 

Spoke to the TDS who are the scheme for that particular agent and that property was not registered with them.

 

They suggest filling in their dispute form.

[Planner]

I still think you need to ring the solicitors and see what scheme they are saying the depsoit is registered in. If they say "TDS", then you can get back onto TDS and ask for Written Confirmation that the depsoit hasnt been registered with them.

 

You should then contact the solicitors and ask them to fax/post you details of which scheme the deposit is held in and the account number (or what ever its called) that relates to your deposit at that address).

 

Then you can write to the both the solicitors and the court confirming that there are not any significant disputes of fact as you have written confirmation from the schemes administratoirs that the deposit hasnt been held in the scheme and therefore you would like the part 8 claim to proceede as theres nothing to argue!

 

Im dubious to the usefulness of their dispute form if the deposit as not been registered with them.

[Planner]

Just re-read by what they are saying concerning decorative state of bedroom etc. DO NOT be side tracked by this. The issue here and ONLY issue is compliance/non-comliance with TDS regs, everything else is totally irrelevant.

[aBitofaPickle]

I'm not going down their dispute channel, this is much better. The solicitor dealing with it is busy until later but already got a letter ready for TDS.

 

Thanks for your help planner.

[aBitofaPickle]

OK, the reason it came into dispute was that they refused to return it all wanting some for decoration of a room.

 

This is what I was honing in on, even if I had received the letter, (which I now have a copy of) I would have proceeded as there is nothing in there about which scheme I'm with or how to use it.

 

The statement goes on to say had I received the letter the claim would not have been made as the information regarding the tenancy deposit scheme would have been with the claimant and appropriate steps would then have been taken by both sides to resolve the issues.

[Planner]

OK, the reason it came into dispute was that they refused to return it all wanting some for decoration of a room.

 

This is what I was honing in on, even if I had received the letter, (which I now have a copy of) I would have proceeded as there is nothing in there about which scheme I'm with or how to use it.

 

The statement goes on to say had I received the letter the claim would not have been made as the information regarding the tenancy deposit scheme would have been with the claimant and appropriate steps would then have been taken by both sides to resolve the issues.

 

How can there be such a letter you dindnt recieve if you have established there isnt any TDS for the deposit? I dont understand how it can be both ways?

 

- Either its in a TDS and you never recieved the letter informing you about it (which I assume is what the solicitors are saying)

 

- Or its not in a TDS (which your saying you have now verified) so the letter would be irrelevant wether you had recieved it or not.

 

Both these positions cant be right. I need you to establish which is the correct position before we can continue. The basic details you need are;

 

1) Name of TDS that the deposit was registered under (assuming there is one)

2) On what date did you give the agents the deposit

3) Assuming it was registered, on what date was it registered

4) Assuming it was registered on what date did the agents send you this non-recieved letter

5) Did this none recieved letter contain the prescribed information or not?

6) Why did the scheme, assuming that the deposit was registerd with one, release the deposit without your permission?

7) If it has been registerd then you need details of the account number etc now.

 

If the solicitor is getting back to you this is what you need to ask him. Again DO NOT be side tracked disgssing decorateive order etc. If he starts down this route be firm and say that you arent disgussing that this claim is about non-compliance with TDS.

[aBitofaPickle]

Would I be better to speak to the agent and ask them for this information which they should have pretty much to hand. I'm sure the solicitor will have to contact them for it.

[Planner]

abitofapickle Im happy to continue helping if you want me to but this threads been knocking on for nearly 2 months now and we still dont seem to be able to answer the fundemental question with any certainty or documented evidence - Was the deposit placed in a TDS scheme or not? Igonore the prescribed infomration and 14 day stuff at the moment and answer that one - Was the deposit placed in a TDS scheme or not?

 

- Ask the agents if they will talk to you (now a solicitor is dealing with it) for:

 

- Scheme name

- account number/identifyier number (what ever the number is called there must be one) that relates to your deposit at that address

 

- Then ring that scheme up and ask them ;

- on what date was it registered

- Why did the scheme, assuming that the deposit was registerd with one, release the deposit without your permission?

 

Let us know.

[aBitofaPickle]

Spoke to agent they are going to get onto their HO to send out the relevant information.

 

I checked their HO address with TDS as well for my rented address and it wasn't there.

 

How long do I have to respond to the AoS

[aBitofaPickle]

Phoned the HO, very cagey on the telephone, and someone will call me back with the information...

[Planner]

I dont know how long you have to respond, does it not say? google it and have a look on the court website. Looks like we are getting there somewhat slowly!!!!

[aBitofaPickle]

Very slowly indeed, there's not a lot to update. I sent a letter to the solicitor and agent by SD which they received on the 18th Feb asking for information on the TDS. I have had no reply to those letters.

I have had verification of the AoS from the court informing me that they have a further 28 days to file their defense.

[Planner]

Well,

 

Just get the written notification from the three TDS schemes that the deposit wasnt held with them, suppose thats all you can do at the moment. If they have a further 28 days to provide their defence looks like its now being dealt with via the N1 route?

 

Remember the key is not to get sucked into debates on "this wasnt clean, or there was a mark on the paint work". You have taken THEM to court for lack of compliance with TDS thats the key.