DPS Claim. Two weeks to go and then………….

[spenkyg]

HI all, I have been proceeding through a lengthy proceedings to get my deposit back from my previous landlord who has been, shall we say, fairly difficult to get along with……

The history.

Moved in June 2007, paid £550 deposit.

Moved out May 2008 – requested deposit be returned.

Was told that due to me not paying last months rent deposit would be withheld.

Discovered deposit was not protected.

Got a bacs trace proving rent was paid – Still claimed it was not paid.

Sent letters threatening court action. – No response

Sent more letters threatening court action. – No response

Started court action via small claims track for return of deposit and non compliance with housing act 2004.

Received defendant’s response to the courts. – Stated that deposit was kept due to unpaid electric bills and damage to bathroom, also ‘Denied’ the claim for 3 x deposit in line with Housing act.

I paid outstanding electric bill. This was the first time that I had been made aware of it!

Before return of questionnaire - Sent email requesting that since the bill had now been paid that we could settle for £450 (£550-100 for bathroom repair) if was settled before I had to return question air ie pay more towards court action. – No response.

Mediation service – No agreement reached.

Sent all documents to defendant and court.

Today (23/04/2009) got email requesting that we resolve this before the court date because LL did not have time to come to the north of England!

Court date 07/05/2009

My questions are these.

Can I reasonably respond to the landlord, that I would only see as acceptable offer a sum of £550 + £550 x 3 + court expenses up to now? This would obviously only save him the time and expense of the travelling and incurred costs for my day off (assuming that I win of course)

Does any one on here know of any outcomes where the landlord has paid the deposit off before the court date and the claim has proceeded on the DPS claim? How did they get on?

Thanks in advance

[DisgruntledTenant]

 

 

Does any one on here know of any outcomes where the landlord has paid the deposit off before the court date and the claim has proceeded on the DPS claim? How did they get on?

 

 

 

This is exactly the question I've been trying to find an answer too!

 

Anybody?

[Gaskie]

I am in court next Tuesday, for a case where my landlord only protected my deposit after I had initiated legal proceedings. It's already been adjourned once due to the landlord failing to file any evidence. After that hearing he instructed the TDS to repay my deposit in full and is now trying to get out of it on the technicality of the word "Also" in the legislation.

 

Will let you know how I get on.

[DisgruntledTenant]

I am in court next Tuesday, for a case where my landlord only protected my deposit after I had initiated legal proceedings. It's already been adjourned once due to the landlord failing to file any evidence. After that hearing he instructed the TDS to repay my deposit in full and is now trying to get out of it on the technicality of the word "Also" in the legislation.

 

Will let you know how I get on.

 

Yes... that word 'also'.

 

I have been deliberating over the same issue. I take it your LL is using the technicality that because he has returned the deposit, the judge cant order (3)(a) or (3)(b), so therefore cant order (4), because he believes the word also means they must either both order or neither ordered.

 

The HA2004 reads:

 

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

(a)&(b)

(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.

 

My view is that the words "as it thinks fit" remove this technicality. The court may see it that the deposit has been returned and therefore not require it to be paid back again.

 

So basically, have the requirements been met? If no, then 3 and 4 apply.

 

If 3 and 4 apply, the judge must as it sees fit order the return of the deposit etc. And he must order the penalty.

 

 

I've read elsewhere that the payment of the deposit does not remove his liability for the non-compliance.

 

In my view, the claim is really all about the non-compliance. Did he comply? no... then penalty. Its nothing to do with the money being returned. The scheme isnt a recommendation, its a statutory obligation.

 

Hope this helps.

 

My landlord is attempting the same defence, we're just a bit behind you though.

 

Let us know how you get on and good luck!

Edited April 23, 2009 by DisgruntledTenant

[Gaskie]

Yes... that word 'also'.

 

I have been deliberating over the same issue. I take it your LL is using the technicality that because he has returned the deposit, the judge cant order (3)(a) or (3)(b), so therefore cant order (4), because he believes the word also means they must either both order or neither ordered.

 

The HA2004 reads:

 

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

(a)&(b)

(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.

 

My view is that the words "as it thinks fit" remove this technicality. The court may see it that the deposit has been returned and therefore not require it to be paid back again.

 

So basically, have the requirements been met? If no, then 3 and 4 apply.

 

If 3 and 4 apply, the judge must as it sees fit order the return of the deposit etc. And he must order the penalty.

 

 

I've read elsewhere that the payment of the deposit does not remove his liability for the non-compliance.

 

In my view, the claim is really all about the non-compliance. Did he comply? no... then penalty. Its nothing to do with the money being returned. The scheme isnt a recommendation, its a statutory obligation.

 

Hope this helps.

 

My landlord is attempting the same defence, we're just a bit behind you though.

 

Let us know how you get on and good luck!

 

That is exactly his defence. Because the court cannot order the first part, it cannot also order the second part.

 

My main argument for this is (pasted from my witness statement):

 

 

• The conditions set out under Section 214 (3) of the Housing Act are unfortunately ambiguously worded. The defendant states that as the court cannot make the first order, they therefore cannot proceed and order the payment of three times initial deposit due to the use of the word “also”. I would argue that although the court is unable to fulfil the first condition due to Mr Cooper’s failings (The second court hearing is a result of Mr Cooper failing to file evidence for the first hearing) it does not mean that the second should be discarded. In fact I would argue that the second part also now needs to be fulfilled.
  

• I believe that interpreting the wording the way set out in the defence rewards Mr Cooper’s incompetence in dealing with this matter from start to finish. When I first issued proceedings against the defendant, and up until the first court date he simply had no defence. This belief is reinforced by the fact that the defendant failed to even acknowledge the court before the first hearing. Luckily for the defendant the court saw fit to give him some more time to seek legal advice and file a defence at our first hearing. It is my belief that having initially falsely accused me of still owing a weeks rent among other things at our first hearing (see exhibit C – it was paid on time as normal, by his own admission the defendant had not bothered to check his bank account before making deductions to my deposit) Mr Cooper realised, having sought legal advice as recommended by the court, that his only way to potentially avoid paying out was to immediately release the deposit in full to me and then try to manipulate the wording of the law.
  

• If the new legislation is meant to be interpreted in this way then surely it completely defeats its purpose, since it is meant to punish landlords who do not comply with the rules within the set guidelines. I do not believe it was intended to allow them to wait until they are threatened with legal action before putting the money into a scheme (losing the tenant interest owed in the meantime), and then delay proceedings for so long that the original deposit has to be paid back giving them the only defence possible.
  

It really is an utter joke to be honest. I really pray he doesn't get away with it.

[DisgruntledTenant]

Will be interesting to see how the judge interprets it... I've heard of it going both ways. Someone even mention (I cant remember who) that there have been 18 cases like this go through the courts, with 12 going in favour of the claimant and 6 with the defendant. I've been trying to get ahold of the 12 to include as evidence but havent been able to find anything.

[Gaskie]

Will be interesting to see how the judge interprets it... I've heard of it going both ways. Someone even mention (I cant remember who) that there have been 18 cases like this go through the courts, with 12 going in favour of the claimant and 6 with the defendant. I've been trying to get ahold of the 12 to include as evidence but havent been able to find anything.

 

 

If you come across them please let me know. I'm actually really nervous about going back to face him, I don't like this sort of thing at all. I will let you know how it goes by lunchtime on the 28th!

[raydetinu]

These make interesting reading: seems it can go either way, depends on judge???

Tenancy Deposit Scheme | Nearly Legal

Leeds Court Case - Tenant's Deposit - LandlordZONE Forums

[DisgruntledTenant]

These make interesting reading: seems it can go either way, depends on judge???

Tenancy Deposit Scheme | Nearly Legal

Leeds Court Case - Tenant's Deposit - LandlordZONE Forums

 

Thanks for these raydetinu.

 

These cases show that if a deposit is protected (albiet late), this is sufficient for a LL to escape the mandatory fine. Although a couple of cases have gone the other way.

 

What if the deposit is returned to the LL, still without the protection, surely a tenant in this situation is in a much much stronger place due to the non-compliance being without doubt?

[Steve__M]

In many of the cases, the judge seems to use the loopholes in the law to provide room for discretion where there has maybe been an oversight by a landlord or agent rather than a deliberate avoiding of the law.

 

On that uncertain basis I'd hope that Spenkieg has the high moral ground, and a strong negotiating position. I'd probably offer to settle for a substantial proportion of the amount, and see what the landlord comes back with???

[spenkyg]

Thats excellent stuff guys, thanks. Its certainly given me plenty to think about.

 

Good luck with your case Gaskie, Heres hoping for a good outcome for you. I'll update this thread with what I finally decide to responde to the LL and let you all know how it ends up!

 

Cheers agaian

[spenkyg]

Okay this is the responce that i have drafted.

 

I have been happy to have settled for prompt return of my deposit at many opportunities before this. Failure on your part to do so has cost me considerable time, effort and financial outlay. Further, you should be aware that it is your responsibility to ensure that the deposit was appropriately protected in a DPS. The settlement figure that is given below takes this into account.

Therefore, I will be continuing with my action unless funds are received from and cleared into my account before the 30th April 2009. For full settlement out of court I will accept £955. This figure covers thevalue of the original deposit, aminimal cost to cover the personal expense spent pursuing this case, a sum to cover the cost of legal advice, and my current court costs.

I look forward to reaching an amicable solution.

[Steve__M]

I think you are being very generous - it's up to you. Three things to consider:

 

1. I would explicitly state that settlement includes the landlord agreeing to end any and all claims for dilapidations and other costs in respect of the tenancy. There have been cases reported here where protection claims were settled by return of the deposit and then landlord initiated claim for dilapidations.

 

2. I believe that to formally end a case, a "consent agreement" can be drawn up which costs about £50. Worth googling/calling the court.

 

3. Confidently spell out again the total amount you will get if you win. ie. To remind you, it is an absolute requirement that the court will award me an additional £1650 etc. etc."

[cds]

I recently spoke to a barrister regarding this where the LL had already returned the deposit. His thoughts were the court would not award relief on the basis that it cleary states

 

(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.

 

cds

[Gaskie]

My case went against me this morning unfortunately. The judge agreed with the argument that since it could not order the first part of the penalty, it could therefore not order the second part.

 

I was not made to pay costs in the case, which is a small bonus, although the cost of bringing it to court has run to over £1200.

[spenkyg]

Really sorry to hear that Gaskie. To be fair how I read the housing act now I think I probably agree that if the first part can not be made then the second part can also not be counted. It does seem complete rubbish though...... We are doing everything correctly but due to a slightly incorrect wording of the act things are going back to the LL's which completely negates the point of that section of the housing act!

On my case I have refused the offer of basically the deposit back and my offer of deposit plus court costs to date has also been refused so it looks like I am going to go to court to settle this, but the next week will be a worrying time!

[DisgruntledTenant]

My case went against me this morning unfortunately. The judge agreed with the argument that since it could not order the first part of the penalty, it could therefore not order the second part.

 

I was not made to pay costs in the case, which is a small bonus, although the cost of bringing it to court has run to over £1200.

 

Gaskie, that sucks!

 

Now I'm really worried. My LL returned the full deposit after the claim was initiated, so I guess that puts me in the same boat. He hasnt mentioned it in his defence though, so hopefully he hasnt thought about it that much, or his lawyer isnt all that smart. He has claimed that he has returned the deposit, but hasnt made the link.

 

Did your ll explicitly say in his written defence that (4) couldnt be awarded if (3) couldnt? Mine hasnt... Any chance this will help?

[Gaskie]

Gaskie, that sucks!

 

Now I'm really worried. My LL returned the full deposit after the claim was initiated, so I guess that puts me in the same boat. He hasnt mentioned it in his defence though, so hopefully he hasnt thought about it that much, or his lawyer isnt all that smart. He has claimed that he has returned the deposit, but hasnt made the link.

 

Did your ll explicitly say in his written defence that (4) couldnt be awarded if (3) couldnt? Mine hasnt... Any chance this will help?

 

It was the entire argument put forward in his statement of defence, however when I got there he had brought a solicitor with him, who proceeded to rip apart the legislation in front of my eyes and provided far more arguments.

 

(2) Subsections (3) and (4) apply if on such an application the court—

 

(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b) is not satisfied that the deposit is being held in accordance with an authorised scheme

 

He brought this section of the legislation up and said that it specifically only mentions 213(6)(a) which states that the information must be provided to me. It is section (b) that mentioned the 14 days and therefore because the landlord had protected the deposit outwith the 14 days, that was irrelevant. There were also other parts that he picked to shreds, making it look almost farcical (which I realise now that it is).

 

It wasn't very pleasant and I'm really, really annoyed that I lost.

 

I hope your LL (and/or his solicitors) don't get around to using this as a defence, but it really looks like if the deposit has been repaid in full then then the LL wins.

[DisgruntledTenant]

It was the entire argument put forward in his statement of defence, however when I got there he had brought a solicitor with him, who proceeded to rip apart the legislation in front of my eyes and provided far more arguments.

 

(2) Subsections (3) and (4) apply if on such an application the court—

 

(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b) is not satisfied that the deposit is being held in accordance with an authorised scheme

 

He brought this section of the legislation up and said that it specifically only mentions 213(6)(a) which states that the information must be provided to me. It is section (b) that mentioned the 14 days and therefore because the landlord had protected the deposit outwith the 14 days, that was irrelevant. There were also other parts that he picked to shreds, making it look almost farcical (which I realise now that it is).

 

It wasn't very pleasant and I'm really, really annoyed that I lost.

 

I hope your LL (and/or his solicitors) don't get around to using this as a defence, but it really looks like if the deposit has been repaid in full then then the LL wins.

 

Thanks Gaskie,

 

I guess one thing I have on my side is that the LL never actually protected the deposit, he just returned it, so all those above sections still apply.

 

We're trying to get the defence struck out before going to court and he hasnt mentioned any of this is his defence, so fingers crossed we'll be ok.

 

Go get yourself a beer and relax. At least its now all behind you.

[jb9]

Tessa, from the landlord law blog, has posted this comment in relation to this thread:

 

If a landlord can escape liability by simply handing over a cheque in the court waiting room, five minutes before the hearing, it makes the penalties look ridiculous.

 

We urgently need a test case to go to the Court of Appeal so we all know where we stand.

 

I'll second that!

[DisgruntledTenant]

Just wondering peoples views on the following:

 

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

(a)&(b)

(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.

 

Do the words 'as it sees fit' mean that the Court could see it fit that an order for the deposit to be returned need not be placed based on the fact the deposit has already been returned. But then it MUST order (4). Is this one possible way of reading it? Thoughts?

 

These words give it some leeway on 214(3) dont you think? It could be argued I guess that they are redundant, but they must be there for a reason right?

[cds]

I think the relevent word is "also" a word in an act as to take on its practical application meaning if not included in a glossary in the act the dictionary definition.

 

"also" in any dictionary means "in addition"

 

cds

[spenkyg]

Right here is the update on my case:

Landlord didn’t bother to turn up and didn’t let the court know. So the case was continued without his presence. I’m assuming that he didn’t have extenuating circumstances (though he may well try to fabricate some now! Can anyone tell me how difficult this would be?).

The judge had me explain the events leading up to the day of the hearing and then asked if I could lead her to the appropriate part of the housing act 2004 which I did. She then read this coming to the conclusion that she could award anything up to 3 times the deposit as a fine.

The judgment went in my favour with the following order.

That I be paid within 14 days the sum of:

£550 Original Deposit

£270 Court Costs

£50 Loss of earnings

2x£550 Award

It was at this point that I mentioned that I read the act differently and was quite curtly told that this was up to her discression, so I quickly shut up!

I think she got this from the ‘as they think fit’ part above the 4 outcomes….

I will say that I somewhat overestimated the casualness of small claims court and didn’t wear a tie, In hind sight I think this may have gone against me….. I would defiantly recommend anyone turning up fully suited and booted! (maybe this is obvious, but I thought smart/casual would be fine……..)

Now I guess I just have to wait until the money ether does or does not show up……..

[DisgruntledTenant]

Well done! Thats great news!

 

Good luck getting the cash from him though, sounds like you might be in for a fight there too...

[familyguy]

I have a similar situation I am trying to resolve.

 

I (mistakenly) used moneyclaimonline to issue a proceeding against my LL and although I now know this was wrong, bad, bad, bad - he did however admit the claim and he did pay the deposit into the DPS, having held it illegally for some ten months.

 

However, I now find myself (potentially) 6k out of pocket, that being 3x my deposit, because I did not fill in a form N208 - damn those technicalities!

 

I wonder, if it might count in my favour that the landlord has nevertheless admitted my claim, which was made under civil procedure rules. My understanding thus far is that the admission he has made is a civil one (a judgement by admission), however surely the county court has in effect "issued a judgement", has it not? Which means that "ALSO" in 214(4) may apply to my case?

 

Am I on a one way trip to disappointment city here?