Non return of tenancy deposit & failure to protect in DPS

[Slowped]

Good afternoon,

I hope that some of you will be able to offer me some guidance relating to reclaiming a tenancy deposit which hasn't been returned to me following the end of a tenancy, via Money Claim Online.

I moved out of a house share at the end of May, and I have been unable to contact the landlord since the end of the tenancy. The tenancy was set up by a letting agent who have distanced themselves from the issue, and also claim that they can't reach the landlord. Since the end of the tenancy I have contacted the three authorised deposit protection providers and all three have replied saying that they have no record of a deposit lodged against my tenancy, as required under S213 of the Housing Act 2004.

I plan to reclaim my deposit, as I left the room I rented cleaned, in good condition and without damage. I paid the rent on time and in full by standing order each month and was not in arrears. There would be no reason to make any deductions and I have not received any notifications that deductions were required.

I have started the process with Money Claim online, and the service requires you to state whether the defendant is an individual or a company. The tenancy agreement is between the landlord's name and I (not a company). I have looked up the landlord's directorship via Company Check and he has a limited property business currently active, the date appointed on there is after the start of my tenancy agreement. Should I detail the defendant as an individual or the limited company?

Under S214 of the Housing Act I can also make a claim for up to x3 the deposit amount as the deposit has been left out of an authorised scheme. Could anyone offer any experience of successfully doing this?

Other details:

I have written to the landlord, emailed and called many times.
The deposit was £300.
I am based in the north, the landlord is based in the south-east.
I have a copy of the tenancy agreement which details the deposit.
I have emails from the approved schemes confirming that they don't hold the deposit.
The deposit was paid to the letting agent upon signing the contract.
I can prove that I paid the rent each month (paid by SO as mentioned above)
My room was not inspected before handing back the keys to the letting agent.

Any comments would be much appreciated.

Thanks in advance!

[jbsportstech]

If you didn't get a certificate from one the scheme providers after handing over your deposit chances are its not protected.

You normally get a cert inside a week.

In which case your landlord has broken the law, so I am not sure if you can go that route but £300 is a small for a deposit.

Looks like the agent did find a tenant soon as you take the keys and sign on the line they tend to wash their hands as there is no more money for them..

[sugerbear]

https://www.moneyclaim.gov.uk/web/mcol/welcome

Ring the deposit protection agency for advice, my ex had problems and they explained the lot. You will be awarded 3 times the deposit so worth doing if the landlord has money.

Shelter also have lots of info.

http://england.shelter.org.uk/get_advice/tenancy_d...

[Red Devil]

Slowped said:

I have looked up the landlord's directorship via Company Check and he has a limited property business currently active, the date appointed on there is after the start of my tenancy agreement. Should I detail the defendant as an individual or the limited company?

Other details:

I have a copy of the tenancy agreement which details the deposit.

If the tenancy was with the landlord as an individual then put his name on the claim form.
If the limited company was formed after your tenancy began then your tenancy is not with it.

Hopefully you have the landlord's correct address for service.
Be aware that this may be different from the limited company one (e.g. his home).*
It would be a useful precautionary measure to have both as he appears to be the slippery type.

 * The letting agent ought to have this information in their records.

[JustinP1]

Slowped said:

The tenancy was set up by a letting agent who have distanced themselves from the issue, and also claim that they can't reach the landlord.

Did you pay them the deposit?

Read the Act carefully, it explains that the agent can also be held liable.

Maybe this is why they are distancing themselves...?


BTW I'd actually steer clear of MCOL for this. Google Part 8 procedure. It is hugely quicker.

[Red Devil]

JustinP1 said:

BTW I'd actually steer clear of MCOL for this. Google Part 8 procedure. It is hugely quicker.

IIRC you can't get default judgement (Part 12) on a Part 8 claim. So might that be the downside?

[pork911]

superstrike is a very strange case. is there any reason other than want as to why you feel you should receive any multiple of the deposit? not a criticism just trying to understand.

[CYMR0]

pork911 said:

superstrike is a very strange case. is there any reason other than want as to why you feel you should receive any multiple of the deposit? not a criticism just trying to understand.

Any reason you feel that a claimant should voluntarily limit his options and make his own case less effective?

[pork911]

CYMR0 said:

pork911 said:

superstrike is a very strange case. is there any reason other than want as to why you feel you should receive any multiple of the deposit? not a criticism just trying to understand.

Any reason you feel that a claimant should voluntarily limit his options and make his own case less effective?

consideration of its efficacy would involve understanding the objectives

[JustinP1]

Red Devil said:

JustinP1 said:

BTW I'd actually steer clear of MCOL for this. Google Part 8 procedure. It is hugely quicker.

IIRC you can't get default judgement (Part 12) on a Part 8 claim. So might that be the downside?

There's a couple of ways of looking at it.

In my own case which was return of unprotected tenancy deposit plus losses, I rang around three sets of solicitors, one a London firm specialising in it. If it were a claim for the tenancy deposit alone, there is not a dispute of fact, therefore, a judgment can be obtained in the absence of there being a dispute.

In my case I amalgamated the two issues as one and couldn't use Part 8.

The downside with the standard small claims track is that even if you get judgment in default, all the other party has to do is claim that they didn't receive the paperwork when you try and enforce it and you go back to square one anyway. I found that from bitter experience.

The timescale we're talking about is from letter of claim in February, hearing in October, and enforcement in November, if I'm lucky.

Edited by JustinP1 on Tuesday 5th August 17:21

[JustinP1]

pork911 said:

CYMR0 said:

pork911 said:

superstrike is a very strange case. is there any reason other than want as to why you feel you should receive any multiple of the deposit? not a criticism just trying to understand.

Any reason you feel that a claimant should voluntarily limit his options and make his own case less effective?

consideration of its efficacy would involve understanding the objectives

IIRC most of Superstrike revolved around the fact that the tenancy was renewed after the deposit rules came into force. Would be interested to hear your argument though.

However, in practicality, I'd advise claiming for three times the deposit, as the question is 'why not' when you may get judgment in default, or a settlement where you get negotiated down anyway.

From experience, the first hearing I was at, the Deputy District Judge hearing the case did not know about the tenancy deposit rules, and he even asked me whether the amount claimed was in law...

Thus if you get a Judge at that level, he's certainly not going to be up to date with the case law...!

[Wings]

If your tenancy was covered by a Tenancy Agreement, then if the same was between you and an individual, then any legal proceedings you instruct should be against that named individual.

Before starting any legal proceedings, you should first write to your landlord requesting the return of your Deposit, in that letter advising the landlord that failure to return the Deposit within 14 days, will result in you starting legal proceedings.

Worth doing a search both via HM Land Registry (http://www.landregistry.gov.uk/) and Duedil (link https://www.duedil.com/ ) , the former for landlord, ownership of the rental property, the latter for search on directorship, address of the landlord, cross reference on search results.

Legal proceedings should be via the Part 8 claim route, the same with a possible County Court hearing. My claim would also only cover the recovery of the Deposit monies, any interest, legal and other expenses i had incurred. That claim would not include any penalty for the landlord's failure to protect the Deposit ( penalty of up 1 to 3 times Deposit amount), although the evidence provided with my claim would prove the landlord's failure to protect the Deposit.

[pork911]

JustinP1 said:

pork911 said:

CYMR0 said:

pork911 said:

superstrike is a very strange case. is there any reason other than want as to why you feel you should receive any multiple of the deposit? not a criticism just trying to understand.

Any reason you feel that a claimant should voluntarily limit his options and make his own case less effective?

consideration of its efficacy would involve understanding the objectives

IIRC most of Superstrike revolved around the fact that the tenancy was renewed after the deposit rules came into force. Would be interested to hear your argument though.

However, in practicality, I'd advise claiming for three times the deposit, as the question is 'why not' when you may get judgment in default, or a settlement where you get negotiated down anyway.

From experience, the first hearing I was at, the Deputy District Judge hearing the case did not know about the tenancy deposit rules, and he even asked me whether the amount claimed was in law...

Thus if you get a Judge at that level, he's certainly not going to be up to date with the case law...!

include in the claim all possibilities but gap here of course between tactics and 'feeling should receive'

superstrike is a very weird case especially the historic nature of it all and the punitive result

[Nickyboy]

sugerbear said:

https://www.moneyclaim.gov.uk/web/mcol/welcome

Ring the deposit protection agency for advice, my ex had problems and they explained the lot. You will be awarded 3 times the deposit so worth doing if the landlord has money.

The tenant May be awarded up to 3x the deposit

[JustinP1]

Nickyboy said:

sugerbear said:

https://www.moneyclaim.gov.uk/web/mcol/welcome

Ring the deposit protection agency for advice, my ex had problems and they explained the lot. You will be awarded 3 times the deposit so worth doing if the landlord has money.

The tenant May be awarded up to 3x the deposit

Correct.

It's worth pointing out that the figure is between one and three times the deposit at the Judge's discretion.

So, for example, issues such as not providing details whist actually protecting the deposit, and/or protecting the deposit during a tenancy could be seen at the lower end of the scale.

My thoughts, and argument would be then if the law allows up to three times the deposit as compensation, surely the worst instances, such as failing to protect the deposit at all, despite it being in the contract to do so, and keeping the tenant's unprotected deposit for a significant time after the end of a tenancy surely must be at the top end of the scale?

[Slowped]

JustinP1 - Thank you I will be looking into P8. Apologies if I have misunderstood, but how did you go about starting your case if you did not use P8 or MCOL?

Pork911 - Thank you for your reply. There is no specific reason why I feel that I should receive a multiple of the deposit. Without wishing to sound like 'that person' the landlord hasn't met his obligation to protect the deposit and therefore appears to have made himself liable?

Wings- Thank you I will be doing this too. Would you claim seperately for the 1-3 times the deposit or are you saying that you would not make a claim for that element at all?

[Wings]

Slowped said:

JustinP1 - Thank you I will be looking into P8. Apologies if I have misunderstood, but how did you go about starting your case if you did not use P8 or MCOL?

Pork911 - Thank you for your reply. There is no specific reason why I feel that I should receive a multiple of the deposit. Without wishing to sound like 'that person' the landlord hasn't met his obligation to protect the deposit and therefore appears to have made himself liable?

Wings- Thank you I will be doing this too. Would you claim seperately for the 1-3 times the deposit or are you saying that you would not make a claim for that element at all?

No, for the courts impose penalties, and not claimants.

You should accord your ex landlord the opportunity of refunding your Deposit, the same by writing a letter to the ex landlord requesting the Deposit. Your letter should make no referral to the fact that you know your deposit was not protected under the Tenancy Deposit Scheme (Housing Act 2004 Section 213).

This link covers Civil Procedure Rules Part 8 and Section 214 Housing Act 214; http://tenancyanswers.ucoz.com/section-214-applica...

[JustinP1]

Slowped said:

JustinP1 - Thank you I will be looking into P8. Apologies if I have misunderstood, but how did you go about starting your case if you did not use P8 or MCOL?

Pork911 - Thank you for your reply. There is no specific reason why I feel that I should receive a multiple of the deposit. Without wishing to sound like 'that person' the landlord hasn't met his obligation to protect the deposit and therefore appears to have made himself liable?

Wings- Thank you I will be doing this too. Would you claim seperately for the 1-3 times the deposit or are you saying that you would not make a claim for that element at all?

I filed at my local county court using form N1 and attaching my Particulars of Claim.

If MCOL is the same as I think it still is, the section where you input your particulars is crazily short, and you lose all your formatting so it looks very amateurish.


Wings - what's the situation if the landlord protects the deposit before the hearing? From my research it seems that this is an absolute defence?

[sugerbear]

Nickyboy said:

sugerbear said:

https://www.moneyclaim.gov.uk/web/mcol/welcome

Ring the deposit protection agency for advice, my ex had problems and they explained the lot. You will be awarded 3 times the deposit so worth doing if the landlord has money.

The tenant May be awarded up to 3x the deposit

Yes, but you should check what judges have awarded. In all the cases I have found it's three times the amount.

Of course they might just award 1x the amount. But why would they? That would be rewarding the landlords by allowing them to not insure the deposit. Which defeats the whole purpose of the scheme.

Landlords that don't act within the law deserve to be punished financially.

[pork911]

Slowped said:

Pork911 - Thank you for your reply. There is no specific reason why I feel that I should receive a multiple of the deposit. Without wishing to sound like 'that person' the landlord hasn't met his obligation to protect the deposit and therefore appears to have made himself liable?

cheers, as i say wasn't a criticism, just trying to understand it from your perspective (could've been all sorts of issues)