DPS Action, worth it?

[danielson81]

Hi there,

 

Wonder if any of you can help with this or offer some advice.

 

My tenancy ends next week and the deposit is not protected, I know all about this side of things.

 

My concern is, IF (which i doubt!) I get all the deposit back is it pointless taking the landlady to court for non compliance?

 

My housemate said something along the lines of (he might of been talking rubbish?) :

 

"in a court they would look at why the legislation was introduced in the first place...and that would be to ensure there is transparency when claiming back a deposit, and to ensure that tenants get all that they are owed."

 

Basically meaning if we did get back the full deposit or the amount minus authorised deductions we would get "what we are owed". I imagine the judge would think we are being greedy.

 

I think we will have some deductions, broken bannister is one of them, however the house was a state when we moved in. So if there are "fair" deductions would it be worth pursuing? Of course I understand if there are unfair ones we have a good case.

 

Thanks for any help!

[ShortlyTdwarf]

Non-compliance in this case can only be construed if the deposit was paid after 6th April 2007. If you paid it prior to this date then the LL was under no obligation to use a TDS(Tenant Deposit Scheme). If you paid after and the TDS was not used you are entitled to take the LL to court, even after you have left the property.

 

I would first ask you if the LL had a proper inventory done when you moved into the property? Since you state that the house was not in good condition when you moved in, this would mean that any inventory done would have to take this into account at the time, and then be compared to the check out inspection to ascertain what, if any, damage had been done in relation to the original inventory.

 

If there is no inventory - and there has to be a signed one to submit any decent defence against a claim for return of deposit in court - then the LL has no right to withhold any of your deposit, whether you have caused damage or not. Having said this, even if they do have an inventory, unless it is done by an Inventory Clerk, and both check in and check out are as well, there is only a small chance that it would stand up in court.

[danielson81]

Thanks.

 

We moved in in July 2006, but signed a new AST every 6 months, the last one being July 2007, so from what I understand it should be protected.

 

We do have an inventory albeit it very basic, its just 1½ sides of A4 and just lists whats in each room and state of walls/carpets. Most rooms say "walls/carpets marked and stained".

 

It also has half a dozen pictures taken of the property in July 2006 before we moved in. However its done on a inkjet printer and its not in much detail. You cant see the marks on walls or carpets due to the low quality. Its basically shows the window, (eg) fridge and table.

[ShortlyTdwarf]

Yes, if you signed a new tenancy then the LL has to use the TDS. They should also have sent you a notice within 14 days of the signing to tell you where and in what scheme your deposit has been placed. As I stated in another thread on this issue, "Where the landlord does not inform the tenant of the whereabouts of the deposit, the tenant can apply to the local courts. The courts can then order the landlord to either repay the deposit or get it protected. If the courts wishes are not carried out within 14 days the landlord will be ordered to repay three times the amount of the deposit to the tenant within 10 days".

 

With regards to the inventory, first, did you sign it? and second, if it states nothing about the bannister then you could argue that the bannister is not covered by the inventory, in the unlikely event that the inventory you have stands up in court.

 

I would say that it would be worth liasing with your LL and coming to an arrangement, and then if that doesn't work go to court. It's always best to try and talk things out first. But remember that since the inventory states that the walls and floors are marked and stained, don't stand for her wanting you to pay to redecorate or replace carpets/flooring.

[danielson81]

Thanks again.

 

We did sign it, in July 2006.

 

But there is no mention of the bannister.

[ShortlyTdwarf]

Then talk to your LL and see whether you can come to an agreement first.

[Planner]

" If the courts wishes are not carried out within 14 days the landlord will be ordered to repay three times the amount of the deposit to the tenant within 10 days".

 

Completley agree with everything apart from the above statement. You dont get two 14 day periods before the fine is imposed. The fine of x3 deposit is payable regardless of the landlord complying with the courts request to protect/return the deposit in 14 days.

 

I would talk to the Landlady but;

 

1) is she going to agree to return the deposit in full? (possibly- 50/50 chance?

2) is she going to give you x3 the deposit without a court order? (0 chance).

 

Therefore your only recourse is to take the landlady to court. They wont think you are being greedy because she has broken the law.

[ShortlyTdwarf]

" If the courts wishes are not carried out within 14 days the landlord will be ordered to repay three times the amount of the deposit to the tenant within 10 days".

 

Completley agree with everything apart from the above statement. You dont get two 14 day periods before the fine is imposed. The fine of x3 deposit is payable regardless of the landlord complying with the courts request to protect/return the deposit in 14 days.

 

Here is a direct quote from the government's guidance document for landlords regarding the TDS:

 

What happens if you don’t secure a tenant’s deposit?

The tenant can apply to the local county court. The court can order the landlord or agent to either repay the deposit to the tenant or protect it in a scheme. If the landlord or agent has not protected the deposit, and they fail to do so within 14 days, they will be ordered to pay the tenant three times the amount of the deposit.

 

 

Hope this clarifies things for you.

[Planner]

Heres the ACTUAL text of the Act;

 

214 (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.

 

You will note the word MUST ALSO (no only in 14 days etc)

 

Its quite a complicated area, easy for obvious laypeople such as yourself, to make such a mistake. You have mis-read the guidance.

 

I hope that clarifys things for you.

[ShortlyTdwarf]

Thank you. That does clarify. Looks like the government has it's guidance notes for us landlords wrong. I can guarantee I did not mis-read it, and can supply the document to you if you wish.

 

Also, it would appear that some county court judges have misread this too, as I know of at least 3 cases where the tenant didn't get the "compensation" amount when this came to court. Obviously a complicated area for them too.

 

But thanks for pointing this out. Much appreciated.

[Planner]

Thank you. That does clarify. Looks like the government has it's guidance notes for us landlords wrong. I can guarantee I did not mis-read it, and can supply the document to you if you wish.

 

Also, it would appear that some county court judges have misread this too, as I know of at least 3 cases where the tenant didn't get the "compensation" amount when this came to court.

 

But thanks for pointing this out. Much appreciated.

 

Really 3 cases? - Could you post the details of them as we are still awaiting the first one on here.

 

The guidance isnt incorrect, you HAVE misread it, what you have quoted above is quite clear that the court will order a LL to return or protect the deposit and that the "penalty" for non complaince within 14 days is x3 the amount.

[waterbottle]

Can anyone detail the court's thinking behind not awarding the 3x amount for non compliance? The section I have read seems to be black and white, stating that 'if not A then B', but I am fairly new to law so other things may be considered.

[ShortlyTdwarf]

I'm trying to get the details of the cases. I heard about them because they were reported in my local paper. But I think I threw it out. Am going to get the media company to dig out the story for me. Will post as soon as I have it.