LL did not protect deposit for just under 4-years: What is my way forward please?

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

Thank you for reading my post, and your informative and helpful responses which have been an 'eye-opener' for me.
(e.g. the LL declaring the AST null and void in a bogus letter, she’s effectivelydisowning the contract, to her company's detriment). I will clarify the points/queries you raise.
(i) Firstly, I am sorry I inadvertently used misleading terminology - by 'case management' I meant awaiting a hearing; I have submitted a Directions Questionnaire.
(ii) Yes, it is the Small Claims Court route.
(iii) The LL was clear (verbally and in writing on the receipt) that the money paid was for deposit; and a month's rent - the receipts support this clearly as I have noted above "in respect of deposit and rent".
(iv) With regards to the £100 - the receipt says "£100 cash received" and then signed by the LL.
(v) When I paid the equivalent of 2 x months' rent the hand written receipt reads: "Cash received to the sum of £1250 - in respect of a Deposit and Rent for the above property".
(vi) Yes, the AST document has spaces for "Rent" and "Deposit" exactly as you state - against the latter, the LL wrote "0".
(vii) There are clauses within the AST expressly referencing the LL's obligation to put the Deposit into a Tenancy Deposit Scheme.

You certainly raise some important issues for me to 'weave' into my witness statement which I am currently drafting. I would not have thought of the points you have deduced without your help. I now feel very positive about this case. I will let you know how this pans out.

Please note that the LL's husband (also a party to the case) has been to the property 4 x banging and rattling the door incessantly saying ".....you are taking me to Court, open the door and come out so I can show you what real men door....". The first time he came unannounced, he stood at the door for 17-minutes, I called the police and they could hear the sound of the door being pounded and rattled over the phone. We were left distressed, shocked and hugely embarrassed because neighbours came out when they heard the commotion.

Please do kindly add to your responses in light of the above clarifications. Many thanks once again Just Di!

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

I was bemused when I read that.

Although I haven't seen her Defence if she is arguing that the tenancy agreement is null and void then you could argue that you don't owe her any rent since that obligation exists in the AST. I say this tongue in cheek, but if it's found that the AST is null and void then you want back all your rent paid since 2012.

I doubt a subsequent handwritten letter can supersede anything in the AST which is a legally binding contract unless it was signed by you too.

Di x

Just Di thank you once again. Would it be a good idea if I were to write to the LL's company saying that as she has declared the Tenancy Agreement null and void, then there was no contract for me to pay her rent. I'm sure that will get the LL thinking as she clearly didn't see that one coming!

[Diana M]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

Would it be a good idea if I were to write to the LL's company saying that as she has declared the Tenancy Agreement null and void, then there was no contract for me to pay her rent.

I can see how you would be tempted to do that but it would be a bad idea while the atmosphere is so highly charged (I did say it was a tongue in cheek suggestion).

Your Landlord could turn the tables on you and say that without a lawful tenancy agreement you have no right to live there and seek possession of the property.

You clearly have the Landlord from Hell who is harassing you. Perhaps it's unwise to make matters worse.

So my question is, what do you want to achieve from all this?

Do you want to stay in the property with no heating and a dangerous boiler suffering abuse from your horrendous landlord ad infinitum, or are you planning to move on to new pastures and live happily ever after having banked any money you may get from this claim?

You've filed your Directions Questionnaire. Did you tick the box for free telephone Mediation? Have you been sent a copy of the Defendant's (LL) DQ and did they tick the Mediation option? Whether that route appeals to you or not is up to you. But it is an option. If your LL agreed to fix the boiler and place your deposit in a scheme would you be happy with that outcome?

If not then it's off to court for a DJ to decide what the law says about this.

If you're working on your WS that suggests this has already been allocated to the small claims track and you have Directions giving you the trial date and a deadline for WS to be filed/served. Perhaps the moment for Mediation has already passed.

Di x

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

So my question is, what do you want to achieve from all this?

Do you want to stay in the property with no heating and a dangerous boiler suffering abuse from your horrendous landlord ad infinitum, or are you planning to move on to new pastures and live happily ever after having banked any money you may get from this claim?

You've filed your Directions Questionnaire. Did you tick the box for free telephone Mediation? Have you been sent a copy of the Defendant's (LL) DQ and did they tick the Mediation option? Whether that route appeals to you or not is up to you. But it is an option. If your LL agreed to fix the boiler and place your deposit in a scheme would you be happy with that outcome?

If not then it's off to court for a DJ to decide what the law says about this.

If you're working on your WS that suggests this has already been allocated to the small claims track and you have Directions giving you the trial date and a deadline for WS to be filed/served. Perhaps the moment for Mediation has already passed.

Di x

Thank you Just Di!
(i) I am relocating to Devon (from Kent) where I have been offered a job - so I'm preparing to move out of the property as things stand.
(ii) Yes, I ticked the option for mediation - but I have not seen the LL's AQ. I submitted the Mediation form at the same time as the AQ.
(iii) the boiler has been fixed but only after intervention from the council's buildings inspector when I sought their help.
(iv) Despite sending the LL a 'letter before action' encouraging them to place my deposit in a scheme, I have received no response except an e-mail from them saying I was being "petty"!
(v) I am awaiting case management timeline, that's why I'm working on my WS currently.

Thank you for your interpretation and analysis of the situation which will add to how I develop the WS.

[bluezulu]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

If you are paying rent and your landlord is receiving it, then a tenancy exists.

If the written tenancy agreement is void (which could only be the case if both parties to the contract agree), then you would have a verbal assured shorthold tenancy, which would still require the deposit to be protected.

Did you pay the 'next payment' on 26/06/2011 and all subsequent monthly payments? If so, and you can prove this, then the LL is clearly still holding a deposit.

I'm interested that this appears to be a Part 7 claim. Did you start as a Part 8 claim and the court transferred it to Part 7?

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

If you are paying rent and your landlord is receiving it, then a tenancy exists.

If the written tenancy agreement is void (which could only be the case if both parties to the contract agree), then you would have a verbal assured shorthold tenancy, which would still require the deposit to be protected.

Did you pay the 'next payment' on 26/06/2011 and all subsequent monthly payments? If so, and you can prove this, then the LL is clearly still holding a deposit.

I'm interested that this appears to be a Part 7 claim. Did you start as a Part 8 claim and the court transferred it to Part 7?

Hello bluezulu - thank you for reading my post, and for your contribution.

Yes, I paid the next payment as instructed verbally and in writing by the LL, and have paid on the same date of the month ever since. I can prove this as I have a standing order arrangement.

I started the claim as a Part 8 claim (I seem to remember we exchanged comms on this) and I have not been informed otherwise. But I never envisaged that the LL would come up with a rather adventurous defence to say the least. The LL has clearly fabricated evidence by saying she sent me a letter, a day after we signed the Agreement saying that the contract is null and void. But is that a defence when what the LL is saying is contrary to the basic tenets of contract law? It's all very weird indeed, I sense some desperation from the other side. I expect to hear from the Court following the Directions Questionnaire that I submitted recently. Once I have heard, I will update this post and seek help should the need arise.

I'm grateful for the help from Just Di and yourself bluezulu!

[bluezulu]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

It's no defence and is irrelevant anyway as the requirement to protect the deposit does not depend on there being a written contract.

Think she's digging herself a very deep hole.

[Diana M]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

(i) I am relocating to Devon (from Kent) where I have been offered a job - so I'm preparing to move out of the property as things stand.
(ii) Yes, I ticked the option for mediation - but I have not seen the LL's AQ.

Your original fixed term period has expired so you are now a statutory periodic tenant. All you have to do is give one month's notice (on or before the rent due date) when you want to leave. When will you be relocating to Devon?

The Defendant should have served you with a copy of their DQ. They may not know that if they have no legal advisors. Ask the court to send you a copy of their DQ. If they didn't file their DQ in time then their Defence could be struck out. NCCBC typically gives a seven day reminder though.

If they did tick the box for Mediation then you can ring the mediation service and put a date in the diary for a telephone appointment if that's how you would like to progress things.

If Mediation fails (you don't reach a mutually acceptably settlement) then the claim will proceed to trial.

Di x

[CLL1]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

Clearly, your witness statement will need to focus nearly entirely on proving that what you paid was a deposit. A LL's obligation to protect is only triggered if it is received.

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

When will you be relocating to Devon? Di x

Thank you Di, very much. I have noted and applied all the advice you have kindly offered me.

I will be relocating to Devon at the end of August. Thanking you for your input, time and effort.

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

Clearly, your witness statement will need to focus nearly entirely on proving that what you paid was a deposit. A LL's obligation to protect is only triggered if it is received.

Noted with thanks CLL1. I thank you for the advice, time and effort.

- - - Updated - - -

When will you be relocating to Devon?

Thank you Di, very much. I have noted and applied all the advice you have kindly offered me.

I will be relocating to Devon at the end of August. Thanking you for your input, time and effort.

[CLL1]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

Hello Tigs,

When you say this case is "going through case management" do you mean that the court has listed a Case Management Conference? This doesn't often happen (this is in the Small Claims Court isn't it?) unless a DJ thinks it makes sense to narrow down the issues or take the opportunity to point you both in the right direction if you have no legal representation to help you to present your arguments. It may result in an Order to produce certain information and documents.

From what you say your Landlord is relying on John & Ors v Old in the Court of Appeal where it was ruled that Advance Rent (rent taken upfront) was not a deposit. Read Pars 34 - 39 of the judgment:

http://www.bailii.org/ew/cases/EWCA/Civ/2013/415.html

The reasoning being that rent is paid for rent purposes only, not for use in any other way such as a deduction for dilapidations and/or breakages at the end of a tenancy.

However the big question will be 'what was the express intention' behind the payment you made? Your LL says it was rent. You see it as a deposit. What did you genuinely believe the money was for when you handed it over, because that's what you may be asked in court and you will have to answer it under oath. Your Landlord may be asked the same question and they too will be expected to give a truthful answer.

The £100 you paid when you agreed to rent the property would probably have been an non-refundable 'holding deposit' which simply means that the Landlord won't rent it to anyone else while you go through the formalities of drawing up the AST etc. What did it say on the receipt you were given, or didn't it say anything?

When you paid over the (equivalent) of two months' rent was there a receipt and what did it say?

In both cases if there was no paperwork then you can still state your belief of the situation in your Witness Statement which will be signed and sworn. If you can remember anything said at the time then put it in your WS.

I see one argument being over whether the clauses in the AST referring to the "deposit" could imply that there was a deposit taken. It depends on the actual wording. The AST should state at the start the amount of money due/taken and what it was for (i.e. rent and/or deposit). Did it?

Perhaps the reason for the Case Management hearing is to establish this fact first because everything else will be dependant on that legal issue.

Di x

In Johnson and others v Old [2013] EWCA Civ 415, the Court of Appeal indicated that a genuine advance payment of rent did not constitute a tenancy deposit. For a payment to amount to a tenancy deposit, it has to be made as security for either the performance of the tenant's obligations or the discharge of any liability arising under or in connection with the relevant tenancy. The court stated that there is a difference between money paid to discharge an existing obligation and money paid as security for such an obligation. A genuine advance payment of rent is the former and so not a tenancy deposit.

In Johnson, the advance payment related to the initial six month fixed term of an AST. The tenant paid an amount equal to six months' rent and this was distributed by the letting agents to the landlord in sums equal to the monthly rent. It may be tempting to say that the crucial difference between this case and Piggot is that one involved money that related to rent due at the start of the term, while the other was concerned with ensuring that the landlord would not be out of pocket for the last two months of the term, it seems clear that each case must be judged on its particular facts.

[bluezulu]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

I think that as you have a receipt describing it as a deposit this will be enough to convince the judge, but even if you didn't have that your situation is closer to Piggott.

Interesting article here:

http://prsupdate.co.uk/2013/05/tenancy-deposit-scheme/

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

I would like to thank everyone who has read and contributed to this post. I am very grateful - your input has become a resource for me in shaping the focus of my witness statement. Something which I would have otherwise been unable to properly do without your input, guidance and steer. I will keep updating this post and let you know how the case is progressing.

[Tigs]

Re: LL did not protect deposit for just under 4-years: What is my way forward please?

Dear Members - my 2 cases are listed for hearing on 29 September 2016; the comprise of 1. non-protection of deposit and 2. disrepair. I am busy refining my witness statements, ready for disclosure to happen around mid-September. There are two areas I am struggling with in terms of clearly articulating my points under each of the above two headings:-
1. Non-protection of deposit: Am I correct in stating that when the initial fixed term tenancy expired, and the periodic tenancy commenced, the LL should have re-protected my deposit and re-issued the prescribed information? Does this amount to a secondary breach which I could ask the Court to consider? If so, how exactly might I word such an argument please?
2. Disrepair: No annual checks were carried out on the boiler which broke down frequently (the root cause of the breakdown of our working relationship); no gas safety certificates were issued and ultimately, the boiler was condemned due to danger from carbon monoxide emission. How can I 'wrap' this all up in a legal context please.

I would be grateful for your help, steer or advice.