Landlord has not placed deposit in scheme

[JohnW]

I have a predicament in that I am currently filling out the wording on the Form N208 Claim Form to submit to the Small Claims Court. However, the original deposit was £1,300 and obviously the 3 x deposit compensation PLUS the statutory 8% interest charges take the grand total of the claim to £5,364.12. Problem is that I believe small claims track will only allow up to £5,000? How do I work around this? Can I simply ask for just a grand total of £5,000 (i.e. cap it?) or is there another way to deal with this? Any advise would be vastly appreciated as I need to sort this asap as the Landlord may well try to lodge the deposit (which should have been placed in Feb 0:cool: before I begin the claims procedure.

Additionally, was recently handed a Section 21 'Notice of Possession'. I believe that this should have been 2 calendar months notice? And that it should have been with effective from the 'anniversary date', i.e. as rent is paid on the 4th of a month it should have been effective from 4th September, but was from 28th August. Does this mean that if L/L applied to the court for an Eviction notice that the Judge should notice that the Section 21 was incorrectly completed and deny and/or instruct the L/L to resubmit another with a fresh 2 months notice?

Lastly, (sorry for all this), does it not also mean that if the L/L has NOT placed the deposit in a secure scheme, that he is NOT allowed to submit an actual Section 21 Notice of Possession? I am sure that I read this somewhere....

Thank you all!

[Kentish Lass]

I have a predicament in that I am currently filling out the wording on the Form N208 Claim Form to submit to the Small Claims Court. However, the original deposit was £1,300 and obviously the 3 x deposit compensation PLUS the statutory 8% interest charges take the grand total of the claim to £5,364.12. Problem is that I believe small claims track will only allow up to £5,000? How do I work around this? Can I simply ask for just a grand total of £5,000 (i.e. cap it?) or is there another way to deal with this? Any advise would be vastly appreciated as I need to sort this asap as the Landlord may well try to lodge the deposit (which should have been placed in Feb 0:cool: before I begin the claims procedure.

 

Claims for deposit + 3x deposit are not being heard as small claims, they are being "fast tracked" - see items 5 + 6 below. This could mean claimants being liable for costs if they lose.

 

http://www.hmcourts-service.gov.uk/docs/infoabout/housing/section-214-application.pdf

 

Additionally, was recently handed a Section 21 'Notice of Possession'. I believe that this should have been 2 calendar months notice? And that it should have been with effective from the 'anniversary date', i.e. as rent is paid on the 4th of a month it should have been effective from 4th September, but was from 28th August.

 

If you are still within the fixed term of an AST, the s.21 notice should give 2 month's notice to end on the last day of the fixed term.

 

If your tenancy has become periodic, then the 2 months notice should end on the last day of a rental period (e.g. if AST commencement date was 4th of the month, notice should end on the 3rd of the month -not the "rent day").

 

Does this mean that if L/L applied to the court for an Eviction notice that the Judge should notice that the Section 21 was incorrectly completed and deny and/or instruct the L/L to resubmit another with a fresh 2 months notice?

 

Incorrectly completed s.21 notices are often the reason for rejection by the courts.

 

Lastly, (sorry for all this), does it not also mean that if the L/L has NOT placed the deposit in a secure scheme, that he is NOT allowed to submit an actual Section 21 Notice of Possession? I am sure that I read this somewhere....

Thank you all!

 

You are quite correct - a s.21 notice cannot be issued unless the deposit has been protected in accordance with the deposit protection legislation.

[JohnW]

Thank you very much for the swift and helpful response. I am fairly confident (as confident as one can be when dealing with the court!), that judgement will be found against the L/L as the deposit was taken on 4 February 2008 and there are letters/emails from all 3 of the schemes to indicate that no deposit has been lodged. He has also failed to respond to a letter requesting it's whereabouts which was sent to him just over 14 days ago.

Just to clarify one point however, the 6 month tenancy AST began 4 Feb 2008 and was automatically renewed; I asssume that this is the 'periodic tenancy' that you are therefore referring to? Does that mean that there is no right to reclaim deposit then? As clearly the deposit was given at the start of the AST irregardless.

Can I ask your considered opinion? Should just go ahead and issue the N208 asap before the L/L decides to suddenly either give the deposit back or lodge it in one of the schemes?

To be honest with you, it is NOT myself who is undergoing this procedure but I am asking all this advice on behalf of a single mum with 2 young children as she is also being harassed on her mobile phone by both the L/L and his father who are continually threatening to visit. As a matter of fact, 'they' (as it cant be proven) sent a burly built chap around last week. One of the children opened the door, he asked for his Mum, and when she came to the door he placed his full weight against the door, lodged his foot in place to keep the door open and stated that he had come round to collect the arrears. She explained that it was being dealt with between 'SHELTER' and the L/L and that SHELTER had asked for a breakdown of the payments. When she tried to close the door, he pressed against it and put his finger right to her face and stated that he would be back. The children who witnessed this, were unsurprisingly shaken, as indeed was she. In fact, over the last few days, despite her reports to the Local Housing Association and Shelter who are trying to rehouse her, the telephone calls and harassment continue.

She did not know about the return of deposit plus the x3 compensation etc. It is just as a member of this Forum that I have seen it and am trying to help her to my best capability.

I believe that the attitude of the L/L and/or his father is almost a criminal act during this Notice of Possession procedure that he initiated. But as the number from which the calls are made are 'being withheld' there is not much she can do. She has, however, managed to save a couple of answer phone messages that the L/L left chasing her up.

Really sorry for the longwindedness of this message, just think that when you read it, there may be other issues or actions that you can highlight that can help or where something is not quite right. Thankyou again.

[Kentish Lass]

I am fairly confident (as confident as one can be when dealing with the court!), that judgement will be found against the L/L as the deposit was taken on 4 February 2008 and there are letters/emails from all 3 of the schemes to indicate that no deposit has been lodged. He has also failed to respond to a letter requesting it's whereabouts which was sent to him just over 14 days ago.

 

That is good, particularly having the letters/emails etc.

 

Just to clarify one point however, the 6 month tenancy AST began 4 Feb 2008 and was automatically renewed; I asssume that this is the 'periodic tenancy' that you are therefore referring to? Does that mean that there is no right to reclaim deposit then? As clearly the deposit was given at the start of the AST irregardless.

 

When you say "automatically renewed", I presume you mean that she did not sign another AST, but that the tenancy was allowed to "roll over" to a Statutory Periodic Tenance (which is what happens when no new contract is signed. Under a SPT, all terms of the original AST apply, except notice periods where Tenant has to give 1 months notice and LL has to give 2 months notice as I described in previous posting).

 

Can I ask your considered opinion? Should just go ahead and issue the N208 asap before the L/L decides to suddenly either give the deposit back or lodge it in one of the schemes?

 

I am not a solicitor, and although willing to inform on tenancy law, cannot make the decision as to whether anyone should go ahead or not. You have to decide this between you, BUT I think you need to deal with what you have written about below. It is extremely serious.

 

To be honest with you, it is NOT myself who is undergoing this procedure but I am asking all this advice on behalf of a single mum with 2 young children as she is also being harassed on her mobile phone by both the L/L and his father who are continually threatening to visit. As a matter of fact, 'they' (as it cant be proven) sent a burly built chap around last week. One of the children opened the door, he asked for his Mum, and when she came to the door he placed his full weight against the door, lodged his foot in place to keep the door open and stated that he had come round to collect the arrears. She explained that it was being dealt with between 'SHELTER' and the L/L and that SHELTER had asked for a breakdown of the payments. When she tried to close the door, he pressed against it and put his finger right to her face and stated that he would be back. The children who witnessed this, were unsurprisingly shaken, as indeed was she. In fact, over the last few days, despite her reports to the Local Housing Association and Shelter who are trying to rehouse her, the telephone calls and harassment continue.

 

I find it very strange that Shelter are involved but have not told her to contact the police. What is happening is harrassment and attempted illegal eviction and is a criminal matter.

 

Tell her to go to her local police station, with a statement of what has happened, particularly the fact that LL sent a HEAVY round. Tell them she and her children were threatened and that she is terrified he will come back. If ANYONE from LL calls, she is not to open the door, but immediately call the police. She is within her rights to change the locks. The fact that Shelter are involved already may help her in dealing with the police.

 

This LL needs to be stopped. He needs to be prosecuted - the penalties for harrassment and illegal eviction can be very high fines or imprisonment, but unfortunately not the rack:mad:.

 

I believe that the attitude of the L/L and/or his father is almost a criminal act during this Notice of Possession procedure that he initiated. But as the number from which the calls are made are 'being withheld' there is not much she can do. She has, however, managed to save a couple of answer phone messages that the L/L left chasing her up.

 

We have already established that this so called notice of possession is not worth the paper it is written on.

 

It is the law that LL must provide an address at which notices can be served. Is there an address on the original AST? I really would have thought that Shelter or CAB would have been giving her proper legal advice in all this. Every council is supposed to have someone who assists private tenants with this sort of thing - is this person involved in her case?

[JohnW]

Thank you very much for your swift replies as I plan to visit the tenant later on and try to update her and advise her. (I dont know how to cut and paste your quotes as you do above, so please bear with me).

 

With regard to the 'rollover' of the AST, yes, that is precisely what occurred, so therefore is a STP which carries with it the same rights as the original AST then. Thankyou.

 

With regard to the harassment and bullying tactics. She did in fact report direct to the local police the 'visit' for which she has got a crime reference number. I (on her behalf) sent her L/L a letter explaining that his Section 21 notice was invalid due to incorrect completion (i.e. the date of possession), and that she was in direct liaison with the Local Housing Association and Shelter who are looking to rehouse as they have a copy of her S21 from the L/L. I also mentioned that I (she) had had a visit from an unknown individual who threatened and asked for the rent arrears. Stated in the letter, coincidence or not? But clearly it was a thug sent round by the L/L. Shameful, as he knows that his tenant is a single mother with 2 young children. (Incidentally, her boyfriend who does not even reside at the address has also had phone calls from the L/L chasing up and hassling and instructing him to tell the tenant that she had better call him or they will visit (with 24 hours notice) and also go to Court (not an issue). Shelter have actually spoken with the L/L on a few occasions to update him, ask him to leave the tenant alone and asked for a breakdown of the arrears in writing. I have asked that she contact the Local Housing Authority to see if they have a Tenant Liaison Officer or similar who can contact the L/L with regard to the harassment. There is a law I believe which gives her (and her children) the basic right to live undisturbed, in peace and without feeling of threat? They are constantly living on edge, waiting for the next phone call (from withheld number) or a threat of visit. The children are unsettled by it all also as their Mum has told them NOT to open the door.

 

On your last comment, yes, there is the L/L address on the AST (I used this to send him the letter).

 

Lastly, I really want to print off a completed N208 for her asap before the L/L decides to place the £1300 deposit in a scheme, as I have read that some DJ have turned down applications when L/L have placed in a scheme, albeit late. I understand that it is best to send out the application and have it in the system before a deposit is belatedly placed? One thing that would be handy is if you had, or able to PM me any precedent cases that I could attach on the N208? I have tried to search for the actual findings on Stankova v Glassonbury 10/03/08 at Gloucester County Court; Woods v Harrington 19/05/09 at Haverfordwest County Court ; Delicate v Sandberg 2/06/09 at Central London County Court and Ferguson v Jones 5/11/08 at Birmingham County Court (all deal with L/L placing deposit late or invalid S21 notices). Dont suppose you have these to PM??? Or similar???

 

THANK YOU!!!!!!!!!!!!

[Kentish Lass]

Forwarded you a PM with the cases which DevilWearsPrimark had sent to me. You could try sending her a PM (this will alert her with an email) as she has gone through this whole thing herself and is very helpful.

[DevilWearsPrimark]

http://nearlylegal.co.uk/blog/2009/0...al-of-tenancy/

 

http://www.atro-online.com/tenancy-deposit-scheme.html

 

http://nearlylegal.co.uk/blog/2009/0...y-award-again/

 

These are the judgements I provided in my claim.

 

An S.21 served when deposit is unprotected is invalid and if they try to enforce it (either through court or 'unofficially' - they sound like charmers!) it is likely to constitute illegal eviction and harrassment. I'd suggest a letter to tell them this and to let them know the tenant has rights and is aware of them. The local council should have a 'private sector team' to deal with problems with landlords and renting - try them maybe?

[JohnW]

Thank you ever so much for your guidance and the cases which I will add to the court papers. Good advice on contacting the local council also. Will keep you updated on this site and thanks again!

[JohnW]

Have just returned from visiting the lady who needs the advise. After all this, she then shows me a letter from the L/L solicitor which not only has the Section 21 notice AST 'Notice Requiring Possession' attached with date of expiry of 4 November 2009 (which as we have established is technically invalid due to non placement of the tenant secured deposit); BUT also attached is a Form 3 (Housing Act 1998 Section 8) 'Notice seeking possession of a property let on an AST' due to her 2 months arrears in rent. In the latter one it states that the landlord intends to seek possession on ground(s) 8,10 and 11 (Ground 8 basically due to 2 months in arrears, Ground 10 'some rent lawfully due from the tenant' and Ground 11 ......'whether or not.......the tenant has persistently delayed paying rent which has become lawfully due.'

 

The worst part is that para (5) of the notice states that The Court proceedings will not begin until after 6 Sept 09 (TODAY!!!!!).

 

I have spent all my time focusing on the Section 21 and it's invalidity due to non placement of her deposit in any scheme; however, I am not convinced that this applies to a Section 8 and fear that she and her 2 young children will be out in the street very, very soon.

 

The L/L solicitor has therefore been quite canny by sending her BOTH a Section 21 and 8.

 

I have already completed my court bundle for the N208 as L/L has not protected her deposit. Is this all just a lost case now? I desperately wanted to get the N208 into the county court for processing tomorrow.

 

She is, quite naturally, upset. By the way, an update on the harassment (calls and visits). She spoke with the local council on Friday, and they want her to call over with a letter stating times, dates events etc so that 'their solicitor can write to the L/L'??

[JohnW]

Apologies. I have checked and am I right in saying that the Section 8 is only applicable DURING THE FIRST 6 months of the AST? In other words during the period of the FIXED term, after which it has become a statutory periodic tenancy and therefore a Section 8 notice is not applicable?? The way I read it, is that his only recourse after the end of the FIXED term is by way of a Section 21 notice? Is this correct?

 

Even if the Section 8 was issued within the fixed AST period, I read that the notice has to be written with no ambiguity and that the property which requires to be 'given up/possessed' should be written correctly? I have just read the Section 8 (form 3) which the L/L solicitor has completed on his behalf, and although the house number, street, town and county are correct, the postcode is INCORRECT as it is the actual postcode of the L/L own property where he resides and not the postcode of the property he is looking to evict her from. Again, a legal technicality that could be thrown out? But I believe that this Section 8 cannot be served in any case.

 

I am keeping my fingers crossed that I am reading this correctly, as it will then revert back to the good old Section 21 notice which is invalid anyway due to non placement of her deposit in a scheme.

 

????

[Kentish Lass]

No, a s.8 notice can be served during a periodic - but it's value to a LL during the fixed term of the AST is that LL can get immediate possession (through the courts), whereas, during the fixed term, a s.21 notice only gives possession (via the courts) at the end of the fixed term. Issuing a s.21 notice and a s.8 notice is a "belt and braces" approach used by LLs in case one fails.

 

And don't panic. LL canot put T out on the street. He has to get a court order, and when any county court judge hears what has been going on here, do you really think there will be any sympathy for the LL?? (It will also spur the LA into action re rehousing her.)

 

Make sure your friend has made detailed notes of everything, including discussions with the Local Authority, Shelter and any paperwork she has available. Every time she has a meeting with anyone, she should write down what happened and what was said, with a date, and possibly time at the top.

 

I cannot see that any of what has happened affects the fact that the deposit has not been protected and since you are prepared, can see no reason not to go ahead.

[JohnW]

Thank you again for sound advice. I understand what you mean by belt and braces approach then. But on the same token, is the S8 notice invalid as the possession address is wrong. Correct house number, street, town but incorrect postcode. They have actually written down the postcode of the landlord, so surely on a legal technicality the court would not allow the current S8 notice? I thought the form had to contain no ambiguity and be crystal clear?

[JohnW]

Cant find exactly how much the County Court fees are for submission of the N208 for tomorrow! The actual deposit was £1,300, so 3 x deposit plus original is £5,200 plus the statutory interest of £168. The tenant will be able to reclaim 100% back I reckon on Form EX160, but only when she has got her latest proof of benefits letter which should be any day now. Meanwhile, I will have to help out and write out a cheque, but not sure how much the HMCS need for this claim?