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 all for your willingness to help me. To answer CLL1's question, I paid the deposit into stages - on the date of the viewing (but I cannot remember this date, I have an undated receipt) I paid the LL £100, following which I paid the balance of £1250 on 26/05/11 which was inclusive of £625 rent for July 2011 (Summary breakdown: deposit - £725; July rent - £625). I have receipts for both payments. I need to include the disrepair within the claim, perhaps under performance?

Please see the post below:

[Tigs]

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

Thank you all for your willingness to help me. To answer CLL1's question, I paid the deposit into stages - on the date of the viewing (but I cannot remember this date, I have an undated receipt) I paid the LL £100, following which I paid the balance of £1250 on 26/05/11 which was inclusive of £625 rent for July 2011 (Summary breakdown: deposit - £725; July rent - £625). I have receipts for both payments. I need to include the disrepair within the claim, perhaps under performance?

Here is the content of the letter before action sent on Saturday 2 April 2016 by first class recorded post. This letter is modified from template which I found on the shelter website). I know that the letter was received and I have a copy of the signature.

NB: There is a clause in the Tenancy Agreement which requires the LL to protect the deposit etc, but clearly the LL breached her own Tenancy Agreement.

I would be most grateful for any help you can offerwith regards to framing the particulars of claim please.

LETTER BEFORE ACTION: FAILURE TO PROTECT MY TENANCY DEPOSIT IN ACCORDANCE WITH SECTION 213 OF THE HOUSING ACT 2004.

As you are aware, I am under an Assured Shorthold Tenancy Agreement (hereafter referred to as the Agreement) at your property located at the above mentioned address. I confirm we signed the Agreement on 26 May 2011 and I took occupancy of your property from 01 July 2011 to date.

On 26 May 2011, I paid you £1250 and prior to this I paid you £100 - bringing the total amount paid to you to £1350, of which £625 was advance payment for July 2011 rent. This left the sum of £725 which you held back as deposit. I confirm that I took up the tenancy from 26 June 2011, but physically moved into the property on 1 July 2011.

Section 213 of the Housing Act 2004 requires that you protect my deposit with a government-backed scheme within 30 days of the payment of my deposit. You are also required to provide me with details of the scheme you have used along with certain prescribed information.

It appears to me that you have failed to:
(a) protect my deposit with a government-backed scheme.
(b) protect my deposit within the requisite 30 days of the payment of my deposit.
(c) provide me with the prescribed information about the tenancy deposit scheme you used, within the required 30 days of the payment of my deposit.

Section 214 of the Housing Act 2004 provides that, where the court is satisfied that you failed to comply with your obligations under the law relating to tenancy deposit protection, it must order that you pay me up to three times the amount of the deposit paid.
I will also be asking the court to order that you pay my deposit into a custodial tenancy deposit protection scheme.

I hope it is not unreasonable to let you know that I am open to reasonable offers in order to settle this matter.

If I do not receive payment of an agreed amount being the penalty for failing to comply with your legal obligations or a substantial response from you by 21 April 2016, I will issue Court proceedings in the County Court without further notice or delay.

I will also be asking for an order to cover my costs, in accordance with Court rules and regulations.

I will be relying on the Court’s Civil Procedure Rules Practice Direction: Pre-action Conduct. I therefore draw your attention to paragraph 13 concerning the Court's powers to impose sanctions for failure to comply with the Practice Directions, and inform you that ignoring this letter before action may increase your liability for costs.

Disrepair and non-compliance with gas safety requirements
I have previously raised the issue of boiler maintenance, noting that the boiler has not been subject to any annual maintenance and certification as required by law. As you are clearly showing no interest in remedying the situation to which I have previously drawn your attention on several occasions, I have no choice but to seek advice from the Council.

Please note:
(a) Since the boiler broke down, we have endured cold conditions in the house which caused a physical interference with our enjoyment of the property or with our ordinary and lawful enjoyment of the premises.
(b) I have previously made you aware that the boiler was ‘condemned’ on 24 March 2016 due to the danger of carbon monoxide emission which is potentially a lethal situation. We have been without heating for just over a week to date.
(c) The boiler was operating without a gas safety certificate for a number of years when it was your obligation to ensure that a safety check was under taken annually.
(d) No annual gas safety checks were carried out to make sure gas installations in the property were operating safely and that we were living in a safe environment.
(e) No landlord gas safety certificates have been provided to me as the tenant, contrary to the legal requirements.
(f) The boiler, which was an obsolete model, broke down on numerous occasions.
(g) You seemed unconcerned and instead, you focused your attention on how much the previous repair cost you.
(h) The boiler operated poorly which affected the heat distribution in the house, causing areas around the windows to be affected by severe mould.
(i) I did not receive any records for electrical safety in the house.
(j) I was not provided with an energy performance certificate at the commencement of the tenancy.

I look forward to hearing from you.
Yours sincerely

[CLL1]

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

Part 56 CPR specifically covers claims made under section 214 Housing Act 2004 (which yours will be). Landlord and tenant claims are defined in that rule to include claims made under section 214 HA 2004.

Practice Direction 56.2 provides that the claimant in a landlord and tenant claim must use the Part 8 procedure as modified by Part 56 and this practice direction.

You can include your disrepair claim in this, and if the judge sees fit, has the power to move the claim to the Part 7 route if necessary.

Do you still want me to draft the claim form and particulars? I'm happy to share a general template for the benefit of forums users in the same or similar situation.

[bluezulu]

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

Because you paid your deposit before the Localism Act amendments came into force on 6 April 2012, your landlord should have protected your deposit and provided the PI within 14 days, not the extended 30 days, post-Localism. The Act also gave landlords an additional period of grace to protect within 30 days of 6 April 2012 and not get hit by their failures up to that date.

You may find this guide helpful, which was produced to assist students in claiming the penalty:

http://www.unipol.org.uk/getmedia/1e...k-Web.pdf.aspx

Her 'Without Prejudice' correspondence is not afforded privileged status (unless it was in direct response to a letter from you marked 'Without Prejudice), as it makes no offer to settle, so you could use this as evidence of her failure to comply with CPR PD pre-action conduct, which could increase her costs.

[Tigs]

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

Because you paid your deposit before the Localism Act amendments came into force on 6 April 2012, your landlord should have protected your deposit and provided the PI within 14 days, not the extended 30 days, post-Localism. If she did neither, you are entitled to an award of 3 times the deposit, rather than the discretionary 1-3 times post-Localism, in addition to your full deposit being returned.

You may find this guide helpful, which was produced to assist students in claiming the penalty:

http://www.unipol.org.uk/getmedia/1e...k-Web.pdf.aspx

Her 'Without Prejudice' correspondence is not afforded privileged status (unless it was in direct response to a letter from you marked 'Without Prejudice), as it makes no offer to settle, so you could use this as evidence of her failure to comply with CPR PD pre-action conduct, which could increase her costs.

Thank you very much Bluezulu, firstly for reading my post and secondly, those of fellow contributors. I have taken all your comments on board. It seems I have to make an 'Application' to amend the Particulars of Claim. I have already made an Application for inadvertently missing out the second defendant - that Application was granted by the Judge, and papers have been served on the arrogant and aggressive LL. I would be grateful for any further steer from you please.

Thank you also for the link - I wish I had seen this earlier. I am now doing a comparative read across with my PoC which has already been served.

[bluezulu]

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

Hi Tigs, I don't think that you need to amend your particulars. In view of the landlord's conduct, I would bet that you would be awarded the maximum penalty anyway.

If the landlord foolishly defends the claim, you will have 14 days to reply to her defence and submit any additional evidence.

[Tigs]

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

Many thanks to all the Forum Members who have helped me in various ways on this Forum. I wanted to follow up, and seek advice on the issue of the unprotected deposit mentioned above. Just to recap, the LL came to my door step a few weeks ago, unannounced and he challenged me to come out and sort this '...man to man..'. After a while I rang the police who could heart the noise of the door being banged over the telephone.

Latest
The LL has filed a defence to my unprotected deposit claim, alleging as follows:
1. The £1350 which I paid in May 2011 was for two months rent, and as such I never paid a deposit anyway - this is a lie which I can easily evidence to the contrary.
2. I had made an error in my earlier particulars of claim as I cited 30-days to protect the deposit when in fact as bluezulu pointed out, the deposit was paid before 2012 and therefore the relevant timescale for protecting the deposit is 14-days.

Help
I am seeking some help in clarifying 2 above in my statement of case i.e. how do I articulate that the applicable regulations are pre-2012, therefore the 14-day rule applies, not the 30-days under current legislation.

I would be grateful for some steer please. With thanks. Tigs.

[bluezulu]

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

Hi Tigs,

"1. Under s213 Housing Act 2004, a landlord was required to comply with the initial requirements of an authorised scheme within 14 days (prior to 6 April 2012) of receiving a deposit. The defendant failed to comply with these requirements as she did not protect my deposit or provide me with the prescribed information.

2. The Localism Act 2011 amendments from 6 April 2012 provided a 30 day period of grace to comply with the initial requiements by 6 May 2012. However, the defendant failed to comply within this period either and has not protected my deposit since or provided the prescribed information.

3. A copy of the receipt for my deposit (amend to suit your evidence) is attached."

[Tigs]

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

Thank you bluezulu for taking the trouble to set this up for me - a straight copy and paste job as I can see. I will keep you posted, absolutely.

Can I go further and specify what guidance the Court should follow in terms of determining the applicable quanta i.e. in terms of the mandatory 3 x the deposit? If so, are you able to direct me to the pre-2012 legal framework please?

Many thank you once again.

[bluezulu]

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

Attached is a useful guide to the Localism changes, which should answer all of your questions. It suggests that you may be entitled to two penalties - one for the original tenancy and one for your current SPT.

The arguable penalty for each tenancy is also shown in this Shelter flowchart:

http://england.shelter.org.uk/__data..._claims_V2.pdf

i would ask for two lots of 3x deposit, although don't build up your hopes too much for this amount!

[Tigs]

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

Hi bluezulu - Thank you for this invaluable resource, thank you so much bluezulu - there is no way I would have been able to source this reference material. I will be putting my case file together over the next few days. In due course, I will let you know how I am getting on, through to the end of the case. Thank you once again.

[Tigs]

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

Thank you to all LG Members who read mypost and supported me. The case is going through case management. I wouldnot have got this far without your help.

Situation
I foolishly, overlooked the handwrittensmall print within the tenancy agreement. Against the deposit amount, theLL wrote "0", and against the rent amount, she wrote - "£625 (2months' rent payable up front)". BUT the signed receipt the LL gave me forthe total £1250 paid clearly says "in respect of deposit andrent". The LL also wrote a separate note with her bankdetails as well as a note saying the next payment is due on 26/06/2011.The Tenancy Agreement was signed on 26/05/2011. The LL has filed adefence saying the amount paid was not a deposit but 2-months' rent. She hasalso provided a retrospectively written letter dated 27/05/2011 which she isalleging she sent to me, purporting to say that (i) the amount paid was not adeposit; (ii) the subsequent letter supersedes the tenancy agreement which shedeemed null and void.

It seems to me on the one hand, the LL is relying on the signed Agreement, andon the other, she deemed the Agreement null and void (for reasons which are amystery to me).

Are there any observations/legal points that Members might wish to make meaware of please? I would be grateful for your comments.

[Tigs]

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

Thank you to all LG Members who read mypost and supported me. The case is going through case management. I wouldnot have got this far without your help.

Situation
I foolishly, overlooked the handwrittensmall print within the tenancy agreement. Against the deposit amount, theLL wrote "0", and against the rent amount, she wrote - "£625 (2months' rent payable up front)". BUT the signed receipt the LL gave me forthe total £1250 paid clearly says "in respect of deposit andrent". The LL also wrote a separate note with her bankdetails as well as a note saying the next payment is due on 26/06/2011.The Tenancy Agreement was signed on 26/05/2011. The LL has filed adefence saying the amount paid was not a deposit but 2-months' rent. She hasalso provided a retrospectively written letter dated 27/05/2011 which she isalleging she sent to me, purporting to say that (i) the amount paid was not adeposit; (ii) the subsequent letter supersedes the tenancy agreement which shedeemed null and void. Clearly the LL argument that she sent me a subsequentletter supposedly invalidating a signed contract between the concerned does nothold any water whatsoever.

It seems to me on the one hand, the LL is relying on the signed Agreement, andon the other, she deemed the Agreement null and void (for reasons which are amystery to me).

Are there any observations/legal points that Members might wish to make meaware of please? I would be grateful for your comments.

[Diana M]

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 Johnson & 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

[Diana M]

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

She hasalso provided a retrospectively written letter dated 27/05/2011 which she isalleging she sent to me, purporting to say that (i) the amount paid was not adeposit; (ii) the subsequent letter supersedes the tenancy agreement which shedeemed null and void.

It seems to me on the one hand, the LL is relying on the signed Agreement, andon the other, she deemed the Agreement null and void

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