not returning deposit, deposit not protected

[willie nelson]

just to clarify: the judge simply has no option but to follow gladehurst in my case, does he? even if the landlord doesn't even mention Gladehurst ruling on the day? i'm not even convinced that she's aware of it, she's been bleating on about me not being a tenant since the beginning. but it is possible she's finally informed herself a little.

[marlow]

God this thread absolutely sickens me! Why do they invent new laws such as this TDS when the clarity of the law can be ****ed about with in such a chronic amount of detail??! Thus dragging out SIMPLE SIMPLE cases for years on end. "I know!" says genius law inventor, "let's create some totally ambiguous laws that judges can find tons of loopholes in to get defendenets off with ease just to waste TONS of time!!" All this bull**** about not being able to claim because you're not longer a tenant I mean come on! Who is going to claim against a LL when they're still ****ing living in their house???? I mean do the peope who think these laws up have an OUNCE of common sense? Why is anyone going to want to sue their landlord to get some 3x penalty crap out of them when they're still living in their house??? WHO? Honestly this country makes my blood boil! Jesus H ****ing Christ even a judge doesn't have COMMON SENSE!! It's absolutely disgusting!

 

All the best with your case willie nelson {EDITED}

Edited July 14, 2011 by marlow

[silverfox1961]

Marlow,

I have edited your post

 

This site does not advocate violence in any form. Please refrain from doing so

[willie nelson]

marlow, you're a poet. thank you.

[Ed999]

I suppose i write to the judge and say that and ask him to make an order to get my deposit and expenses so far. are judges receptive to this type of correspondence? i presume if it can free up court time it's good for them.otherwise, is there anything i can hope to get out of the appeal hearing?

 

 

You don't write to the judge personally, you write to the County Court office. They are always happy to have a case settle without a hearing.

 

Write in the terms I suggested previously. Ideally, you would like an order making that directs the defendant to pay you the original deposit, plus your expenses, in the amounts previously decided.

 

 

I looked at my original claim again. it seems it might be a bit mixed up. i seem to remember i just cut a pasted it from this site

 

 

Bad luck, but we didn't know back then what the Appeal Court was going to decide in the Gladehurst case, any more than you did.

 

 

 

the wording as follows:

"...the deposit....was not paid into an appropriate deposit scheme (in breach of section 213 (1) of the Housing Act 2004), and that the claimant did not receive the prescribed information concerning which Tenancy Deposit Scheme was holding the deposit within 14 days of the Defendant's receipt of the Deposit (in breach of section 213 (3) of the housing act...)"

 

 

Interestingly, even though you got the statutory section wrong, the wording I have highlighted in bold is in fact a section 213(5) claim.

 

 

 

even if the idea you have of a 213 (5) claim is possible it seems to me a real stretch... how would it work? wouldn't the deposit have to be protected for it to have a chance of succeeding, and just be for winning against landlords protecting at the last minute?

 

 

Probably. That was, broadly, the situation in the Potts case, in which this line of argument first emerged.

 

It's possible that in order to succeed in a section 213(5) claim the deposit has to be protected, as in the Potts case. Such a claim might succeed solely in cases where the deposit was protected.

 

If you claim under section 213(5), you are likely to LOSE that part of the case in the County Court, because of Gladehurst. Don't even consider making such a claim unless you are willing to go all the way to the Court of Appeal - which will be very expensive if you lose.

Edited July 14, 2011 by Ed999

[willie nelson]

yeah... that sounds about right. what a total pain.

 

i mean i've wasted a year on this. ok, "it's life", but i would have looked at this differently if i knew what i know now.

 

do i have any opportunity to amend my claim now? i think i would have made a claim for harrassment or at least i would have added a request for damages for breach of my right to quiet enjoyment at the beginning if there hadn't been this waste of time legislation which was OBVIOUSLY intended to apply in a case like this.

 

as it is i will get my deposit back and expenses which hardly reflect the real cost of all this stress effort etc. so it still feels like a loss to me.

 

whether she is liable for the penalty or not there is no dispute that she has broken the law! and that this has caused me considerable hassle. can i amend now to ask for this?

 

thanks again everyone.

[Ed999]

With respect, the case is over. You had the final hearing months ago, and judgement has been given. It's too late now to think about amending your claim.

 

The only remaining legal issue is the landlord's appeal against the judgement.

 

Obviously, you can't appeal against a judgement that was granted in your favour! But appeal is the only option once judgement is given.

[willie nelson]

so, just checking up. any developments on the dps? and new legal precedents set? any news of new claims that might be relevant?

i'm going to the appeal early september. i've sent a letter offering some sort of compromise but heard nothing. not even had any stuff from appellant, so i don't even know what her case is.

very non-specific, informal advice was that it was worth going.

not looking forward to going to leeds for 10am with a 8month pregnant partner.

[willie nelson]

Hi again,

I'm just starting to look at this all again.

So there are some new cases that have won 3x Deposit. I've been reading Suurpere v Nice & Anoor.

Is this a judgement of equal importance as Hashemi v Gladehurst? there seem to be a few contradictions.

I'm looking for anything to distinguish my case from Hashemi, even tho I've received nothing at all from the landlady about what her case is, (except that I was no longer the "tenant" when I made the claim).

In Hashemi part of the deposit had been repaid. In paragraph 39 of Suupere judgement the judge refers to "genuine discretion to exercise both alternatives must be available On the facts of this case, neither was." (in Suuprere the entire deposit had been returned.) On the facts of my case, both are (despite being after tenancy ended.) I have an email from the DPS saying they will protect the deposit at any time regardless of whether the tenancy has ended. Paragraph 42 continues on this line.

 

Also paragraph 41 is interesting, the judge really accentuates the provision of information as being separate and equal in importance to protection of the deposit. This has me going back to ed999's idea about the possibility of a successful 213 (5) claim. I will have to go back and read the Hashemi judgement, but ed999 suggests that (sorry, from memory) 213(5) is not even referred to in the Hashemi judgement.

Might this be the distinction I need, and some back up from another judgement? any ideas out there, I'm running out of time but this at least gives me hope that some sensible decisions can be made or at least there are ways around the recent surprising judgements.

Paragraph 44 seems to suggest that protecting the deposit before the hearing is irrelevant if the prescribed info hasn't been supplied. isn't this in direct contradiction with Tiensia?

also is there any more information about Owalabi v Bello? I've only seen very brief mention of it.

anyway, thanks everyone, any ideas, i'm running out of time!

[Ed999]

You need to bear in mind that the cases I debated with you previously are mainly Court of Appeal cases. If Suurpere v Nice or Owalabi v Bello is a decision of a lower court, it cannot overrule a Court of Appeal authority.

 

Even if either of them is a Court of Appeal decision, it can't overrule a prior Court of Appeal authority: in that event, it merely adds to the uncertainty and confusion, by offering the lower courts a conflicting Court of Appeal decision. A lower court must then choose which Court of Appeal authority to follow, making the outcome in the lower court a lottery.

 

 

Unfortunately, the questions you are now asking appear to boil down to 'Can I win my claim?' This is a question that only the Court which hears the appeal can decide. I can suggest a line of argument for you to put forward - I have done, repeatedly - but I can't predict whether that argument will succeed.

 

 

Will you please post here a link to the judgement in Suurpere v Nice to which you are referring.

 

Will you also please post here a link to the judgement in Owalabi v Bello to which you are referring, or at least a link to whatever source for that case you have seen.

[Snorkerz]

Ed999 - it is not Bailli, but this ill gve you a rundown of those cases http://nearlylegal.co.uk/blog/2011/08/tenancy-deposit-penalties-awarded/

[Webranger]

Willie, I'm back! Would you believe it? I've had no notices of posts to this thread since before your District Court hearing in York in March until one about your 20th August post, so I've just had to read all the thread since then. Never mind, you've had good advice from Ed999 and others.

 

You've certainly been taken to the heights and then dropped in the abyss again! I totally agree with Ed999 that the Gladehurst decision was wrong - bizarre in fact - but it can only be overturned if Hashemi (or another in a later case) appeals to the Supreme Court or if the Court of Appeal decides differently in another case, which would be difficult for it but not utterly impossible.

 

All these shinannegans just highlight how badly conceived and how badly drafted was this whole section of the Housing Act 2004. The MP's at the time were too busy cooking their expenses books to pay any attention to applying practical and fair arrangements to the private housing market. There was a need for legislation, but all they had to do was put the onus on tenants to pay a deposit into a scheme and present the certificate to the LL who was obliged to accept it. Then there would have been no need for all the complication and expense and hassle and bitterness. You would think that Scotland would have learned from this mess, but, no, when do politicians ever learn anything? They are bringing in a scheme which doesn't even have the insurance option. The one thing that always wins is bureaucracy!!! Why make a simple rule when you can create a vast money-wasting bureaucracy instead?

 

I have asked the NLA, of which I'm a member, to press this alternative approach on the Govt. but now the NLA runs the MyDeposits scheme, of which I'm also a member, so they have a conflict of interest in proposing something that would torpedo their own scheme.

 

Incidentally, I'm now setting up tenancy agreements in which the first and last month's rents are paid upfront, so there is no returnable deposit involved and I avoid this legislation altogether without harming the tenant's rights. I learned this from a LL who lets student accommodation on 10 month agreements but it is equally applicable to other AST situations.

 

To get back to your case. First of all, remember that your dreadul LL has had permission to appeal on one limited ground only and she was actually allowed, quite possibly on the judge's initiative, to amend her grounds of appeal due to the very recent Gladehurst result. This doesn't mean that the result of the appeal is decided, its just open to argument, but it must mean that you, too, can bring new arguments to bear of this new and limited issue. One of those is obviously that in your original application you merely made a typo is saying 213(3) when you intended 213(5) as the applicable clause and by inference you referred to 215(6) as well. Put that in a written submission before the hearing and I very much doubt the judge would refuse you, thus allowing the question of supply of information in. Of course, that may still fail on the (absurd) grounds that you are no longer a tenant. However, you might successfully counter that by pointing out that the information is legally supplied to a tenant and as a tenant you were denied your right and the right to redress for such denial does not cease when you cease to be a tenant. A prisoner who is abused does not lose his right to claim for damages when he is released from prison - is a good analogy. Incidentally, the appeal permission mentions "damages" but it is not damages involved in this legislation, it is a "penalty," though I doubt the difference is relevant.

 

However, the way courts now seem to be negotiating around Gladehurst is by saying that the tenancy was not legally ended, (Suupere v Nice & Anor and Owalabi v Bello) so you have to look at that issue very carefully. Remind us: how did you come to vacate the premises? Was there any element of harassment from LL that led to you going? I believe there was. If so you can claim that the tenancy was not legally terminated and you did not, and still don't, wish to claim for the harassment because you thought that would be a far more difficult matter to pursue than return of deposit plus penalty. So you are not adding to your claim, you are merely using evidence previously presented to counter this new argument that you were no longer a tenant as defined by the Act.

 

The judge who gave permission will probably, but not inevitably, be the one who hears the appeal. He probably felt he had to make a hurried decision on permission faced with a brand new Appeal Court decision, but that doesn't mean that his mind is made up. Moreover, he has to be pre-disposed to the probability that the inferior court judge was correct. The problem here is that he was correct at the time and to what extent can he be made incorrect by a later judgement in a higher court.

 

Furthermore, this appeal is only about the penalty, so the return of deposit and costs will not be disturbed and if she has not paid them by the appeal hearing date that can be used against her. Don't pre-warn her of that in your pre-hearing Witness Statement in which you present your new arguments as above, but use it on the day.

 

I hope this helps. Do give us again full details of what led to your vacating and what written notices were involved. Nil carborundum illegitimae.

 

By the way, thanks for your previous compliments.

 

[willie nelson]

hallo, and thank you all for your replies.

It's good to hear from you again webranger. thanks and i hope you are well. "nil carborundum illegitemi". i had to google that. i couldn't agree more!

Thanks snorkerz, that is the link. that lniks to the full suupere judgement but but I haven't found any more on the judgement for Owolabi v Bello. does anyone know if a full judgement is available?

And thanks again of course ed999. I see that it might seem i'm asking "will i win?" but i'm just exploring ideas and wondering if, in your opinion, any of my arguments are worthy of merit... i just don't really know how these thing play out or whether my logic is valid.

There is a lot for me to cover in this post but i'll try and lay it out in a clear way.

I've tried a few times to get advice from the citizens advice bureau but never really got very far, until last week i came accross by accident the advice service at the royal courts of justice specifically for litigants in person, and managed to get a interview this morning. it's now only two weeks to the hearing so i am a bit late but they advised me to request an adjournment which i will start as soon as i finish this and to make an application to bar pro bono. also i have been waiting for some argument from the defendant before i responded, but none has come. now i know i needn't received anything and that i need to submit my response now! a lot to do.

Here is the only correspondence (emails) relating to us leaving the flat (names and addresses removed):

9th july, that's the one month,

thanks,

c......

 

--- On Thu, 10/6/10, ..........................................@yahoo.co.uk> wrote:

From: ........................@yahoo.co.uk>

Subject: Re: 65b d............. road

To.........................@yahoo.co.uk>

Date: Thursday, 10 June, 2010, 17:44

Yes, that's fine. What date will you be leaving the flat?

 

--- On Wed, 9/6/10, ........................@yahoo.co.uk> wrote:

From: ..................................@yahoo.co.uk>

Subject: Re: 65b d......... road

To: "............................@yahoo.co.uk>

Date: Wednesday, 9 June, 2010, 10:44

 

dear.............,

we are now giving you one months notice that we are leaving the flat. on the 15th we will pay you £624 (that being 24/30 x £780) to cover the rent up til the 9th july 2010. could you please reply to confirm you accept this notice,

regards,

c.................

 

 

 

 

 

 

we do not mention " ending the tenancy" at all. nothing was signed, no inventory, we just left leaving the keys in the letterbox on the 9th july. we never saw her again and the only correspondence after that was about trying to get our deposit back. yes, i do think we were harrassed but i made no claim fro harrassment as i thought that would just be adding to the deposit claim and would be more complicated and make us look greedy to the court. how is a tenancy terminated legally? in the county court it was discussed in terms of the tenancy being ended by mutual agreement.

 

 

in reference to your idea, ed999, regarding a claim under section 213(5): paragraph 41 of the suupere v nice judgement does make a specific point of the importance of provision of the prescribed information as an equal requirement of the act. good. But the Act in section 214 (1) says that an application can be made to the county court on the grounds that section 213 (4) and 213 (6)(a) have not been complied with (i.e. it also doesn't mention 213(5)as grounds for a claim, but 213(6) is a reference to 213(5) anyway). From memory you say that the Hashemi judgement doesn't mention section 213(5) at all, but in paragraph 37 of the judgement he says that the court can't make an order under 214(3) and (4) once the tenancy has ended. Does this not include 213(5) via 213(6)?

it's complicated and i'm trying to explain as best i can. sorry if it's not clear. but please explain to me what i haven't understood, i have been paying attention to your posts on this matter but i haven't been able to get my head around that argument yet.

 

 

something i wanted to pursue was in paragraph 39 of hashemi judgement. " for the court to have genuine discretion to excercise both alternatives must be available. On the facts of this case, neither was." I would argues of the facts of that case that was not possible as part of the deposit had been returned. none of my deposit has been returned. I have an email from DPS saying they will accept a deposit for protection at any time regardless of if the tenancy has ended. so i would argue that on the facts of my case both alternatives ARE available. what do you reckon?

 

 

my head is spinning, i will post this and take a break. i hope to hear from you soon. i will probably think of something to add.

 

 

thanks again.

[Webranger]

Oh, Golly, yes there is a lot involved.

 

Let's concentrate on one thing at a time. Did you have an AST agreement properly done? If not, what? If so, what were the terms - when to when? did it mention deposit? any other relevant terms in writing? Did you vacate during initial tenancy or in later statutory period?

 

Your notice appears faulty in that you have to give notice ending on a rent day, not 6 days early. However, she seems to have accepted that.

 

Had you previously to 9th June 2010 complained in writing about harassment etc. so that your email of that date could be construed as saying, "we are fed up with this and we are going to leave as a result"? Frankly, I'm surprised in the circumstances that you paid the £624 but it does show that you were acting in good faith.

 

Had the harassment been with the apparent intention of making you leave?

 

When did you first ask for return of deposit?

 

These questions are now of vital importance although they were not previously.

 

I suggest you don't finish the submission/witness statement to the appeal court before you have answers here to the points you have raised.

[Webranger]

"ended by mutual agreement" would be invalid if your agreement was achieved by harassment. It doesn't matter that you didn't claim damages for harassment as long as your previous evidence has shown that the harassment motivated your departure. That would mean, per Suupere v Nice, that the tenancy was not legally ended.

[willie nelson]

nice to have you back!

now down to business.

firstly time is short, two weeks and i have submitted nothing thinking i had to wait for her arguments before i could respond and there's been nothing. after CAB advice this morning i have submitted an application for adjournment today. i don't know what the chances of success are so i will continue as if i have two weeks to the hearing and still haven't filed anything with the court.

 

now i will try and answer the questions.

the AST was a standard form from the newsagents. three months 15th feb-15th may from memory. deposit £780, on tenancy agreement written that it would be protected signed by myself landlady, my girlfriend as witness. we vacated after three months obviously.

therelationship broke down due to her somewhat unreasonable demands which i wont go into.

 

here is an email from 6 days before we gave notice, 3rd june:

 

dear t,

 

i'm getting fed up with this too, but i'm sorry, you must understand, it US who give permission for anyone to enter the flat. you cannot give anyone permission to enter without our consent! you can give us notice (24hr, written) that you want to enter, but that is a request. then we give permission if it's convenient. if you think we refuse unreasonably to give permission to enter you must get a court order before you can enter. any legal advice you have had will have told you as much.

 

THIS IS IMPORTANT: we don't even intend to stick to the letter of the law but for that to happen you have to respect our right to refuse and that occasionally we will refuse. that's all.

 

Now you are going to be angry because we are not available for viewings on saturday, sorry. Monday evening should be ok, or tuesday morning. tell michael to call me if these are convenient.

 

As for fair, I dont think it's fair that i get abusive phone calls if i happen to be away from home for a couple of days, or not available to let someone into our flat immediately on demand! we are not doing it deliberately but we DO have a life and we dont have to make excuses to you. unfortunately for you the law is on OUR side. let me remind you we do pay you rent. when we moved in we did not mislead you in any way. it's not the number of viewings that's the problem, it's that after agreeing to every viewing so far, as soon as it wasn't possible you became abusive and insulting.

 

but i don't want to get into that again, you seem to fail totally to understand our point, which is why we end up now talking law.

 

and for the record: the first time we didnt get 24hrs notice it was the woman at castles not george, the second time was george, then i set him straight (maybe he thought that rude) and after that it didn't happen again and wasn't a problem, and we agreed to every request. as for the time he didnt turn up you'll have to ask a.

despite what you think we are not being obstructive, and really don't want to be and would very much like things to get back on an amicable footing. i really, really want this to be sorted out and am very disappointed that it isn't by now.

 

c

 

I don't know if this is part of harrassment, but it well illustrates the atmosphere under which we decided to leave. there are more. the emails about leaving were in the last post. we vacated after the initial three months. she had tried to evict us previously but illegally, as i found out and then pointed out to her in several emails/letters, and she didn't try again.

 

our email saying we were leaving was polite cos we wanted our deposit back and just to put it behind us. we thought she was crazy and didn't want to wind her up! how naive of us!

[willie nelson]

we first requested deposit about a week after we left. we wlaked out the door and put the keys through the letterbox as requested after thoroughly cleaning the flat. i don't know if the harrassment was to make us leave but clearly she wanted us to go, and to be honest we wanted to go. i think it could look like that. we certainly didn't enjoy much of our quiet enjoyment!

[willie nelson]

what defines the end of a tenancy? anything signed? inventory? receipt for return of keys? return of deposit?!?

 

in our case we had none of this.

[willie nelson]

as i was lead to believe later a three month AST doesn't mean much anyway, the minimum enforceable term being six months.... but then i don't want an argument saying there wasnt an AST!

[willie nelson]

i'd LOVE to know what the LL did in the owalabi case to merit £13000 damages.

i found out yesterday the lawyers for suupere are literally 5 minutes from me so i'll try and get a meeting with them.

and i was wondering, how does my argument i tried to make out in post #88 regarding "the facts of this case" in para 39 of the hashemi judgement strike you or anyone out there?

[willie nelson]

dear ed999, i've been struggling to understand your point about hashemi v gladehurst judgement in relation to compliance with initial requirements as opposed to provision of prescribed information. you know what? after about twenty readings of the judgement i think i've finally got it!

[willie nelson]

and furthermore, ed999, i think i've improved my argument there. In paragraph 41 of suupere.. the judge makes a big point of the provision of information being of equal importance to protection of the deposit... in hashemi, it seems to me the entire basis of the absurd decision lies on the idea that the court must have the choice of both 214 (3) (a) or (b) for the act to make sense. the decision being that if the tenancy ended the court lacked the protection option (except they don't). but put simply, the penalty still applies even if only the information ain't been provided, and provision of information has no bearing whatsoever on those options available to the court. not by any contorted stretch of a judge's imagination.

excuse me if i've been a bit thick... anyway if you haven't read the suupere judgement do so, it helps support that view in my opinion.

i think i'm tired!

[Webranger]

Hi Willie,

 

I'm glad you sent that private message because I picked that up although I had missed the email about your postings here. I should have come back and looked anyway 'cos I had said take one thing at a time and had left other questions unanswered.

 

Even this first thing has become slightly more confused! Yes, you did have an AST - for six months. You can sign one for less than six months if you both want to, but LL cannot get you out in less than six if you don't want to go. Whether LL could also enforce 6 months rent, I'm unsure. Did she give you a Section 21 Notice to leave? Probably not so she had even less justification in pushing you out.

 

So you have a very good argument that you had a legally protected tenancy for six months and the original idea of only 3 months is irrelevant. What is not irrelevant is that LL harassed you with inconvenient appts for prospective tenants which led you to leave after only 4.75 months. But legally your tenancy went on for another 5 weeks. When did you start the action in court? Within that period? If she didn't serve you with a Section 21 Notice - or if was incorrect - that probably doesn't matter because you just say that without that the tenancy is still live.

 

Without that really stupid Hashemi judgement you would already be home and dry but because of it you really need to convince the court that you were still a tenant when you started the action.

 

BUT you do also have ed999's argument and your exposition on it which seems very strong also. I don't think I need to add to that.

 

As for the solicitors who acted for Suupere, you may persuade them that, as you have already won and this is a limited appeal, to act on a no win no fee basis. They would then certainly get an adjournment. On what grounds are you seeking that?

 

Remember, too, that the appeal judge probably felt that he had to give permission in view of the new decision but that doesn't mean he has any sympathy with LL and he might well be pleased that you can give him a reason for saying that you were still a tenant.

 

"not by any contorted stretch of a judge's imagination." Don't underestimate just how contorted that can be. I've had to go to the Court of Appeal (again) because of a contortion beyond belief.

 

I hope this helps. I may be back in the next day or two with further observations.

[willie nelson]

thanks again,

yes! I made the claim within that extra 5 weeks, good point i think. no section 21, but in some ways that doesn't matter, or even potentially look better making an illegal section 21 application with deposit unprotected. anyway.

it all hinges on whether the judge wants an excuse to uphold the judgement. hopefully my landlady is on her usual form!

 

I applied for an adjournment on two grounds, apologising profusely for the late application. one that i wanted to make an application to the bar pro bono unit for representation, the application takes about 6 weeks, also that my partner, co-tenant and mackenzie friend during this claim will be eight months pregnant on the hearing date which involve a train journey halfway accross the country. I should have made the application a long time ago but fingers crossed.

 

i'll put together all my papers and skeleton argument and send 'em today.

thanks again.

[Webranger]

Willie,

 

Could you post again for us the details, with correct name and tel. no. if poss. of the unit at the Royal Courts for advising litigants in person and info on "bar pro bono unit." That could be useful to a lot of caggers.