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

[Tigs]

LL did not protect deposit- what is my way forward please?
I am hopingthat fellow Forum members might be able to help with suggestions on a wayforward please.

I am seeking advice on an approach

I was on an Assured Shorthold Tenancy (AST) agreement of 6 months’ duration which became a periodic agreement following its expiry back in January 2012. My deposit was never protected. As I had a reasonably amicable working relationship with the LL, I thought bringing up this topic with her might be'rocking the boat'. However, in the time that I have been here, a pattern has emerged of protracted & unreasonable delays in carrying out essential repairs, culminating in the most recent episode where I have gone for 4-weeks with no heating from the time the boiler was condemned as unsafe. Despite polite e-mails & texts to the LL, I have only received a solitary response saying that she is dealing with the issue. In desperation, I contacted the local council who were sympathetic, and promised to send an e-mail to the LL,as well as call to the property to carry out an inspection. The disrespectfulness on the part of the LL has been palpable. I now wish to follow through with the deposit issue.

Has anyone been down this route, and can anyone share some insights and approaches please?

I would be grateful for any feedback, advice, guidance or suggestions. I am happy to respond to any queries in case there are aspects which are not clear.I thank you all in advance.

[Tigs]

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

Thank you bluezulu - I must accept your reasoning and change my own perception. I will use the time left to tighten my case. Many thanks once again bluezulu!

[bluezulu]

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

I wouldn't worry about this. I think that the judge just wants to be sure that if there is any defence then it is heard. If he appeared to ignore you it is likely that he thinks your side of things is sound.

The sign refers to the court employees, not the judiciary.

You can't do a lot until you receive their defence, but suggest you start strengthening your case by gathering additional evidence to counter any of their likely claims eg additional witness statements or correspondence.

You did the right thing in keeping your cool!

[Tigs]

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

Report back from the Court:-
Thank you to all Members who contributed to this thread. I would not have got this far, nor would I have had the means to collate a competent case file and present get me to the present position. There are two cases which were rolled into one court sitting: (i) non-protection of deposit; (ii) disrepair (with a counterclaim by the LLs).

Court proceedings
1. The Judge said that the 2-hour allocated for the two matters was not long enough.
2. He asked us to find some commonality between us, and decide an outcome outside of Court. We were asked to go away for an hour.
3. My partner and I found the defendants to be full of bravado, sarcasm and innuendo - despite our best efforts to engage, discussions were inconclusive.
4. We went back to the Judge's Chambers; the Judge said that he will use the remaining time to identify the issues so that he can draft directions.
5. The Judge spent over 1.5 hours going through the case files, and advising the defendants on what they should do. Other than the counterclaim, the defendants had not filed any defence whatsoever.
6. If the case had been heard on the day, the defendants had no defence on record.
7. The Judge gave the defendants generous timescales to file their defence, spelling out exactly how they should approach each item of contention.
8. The Judge was openly hostile to my partner and I, we kept our cool, kept quiet, listened and took notes. He behaved as if we were not there.
9. There is a Notice on the Court Notice Board "Court Staff cannot ......recommend a course of action" - but that's what happened exactly.

In view of the fact that the defendants were given until the end of December 2016 to file a their defence, the cases will not be heard until 2017.

I would welcome and indeed would be grateful for your thoughts and suggestions on this situation, please. I confirm I have been factual with my observations as this is the only way I can expect to be helped in the same way that Members have helped me in the past. I thank you in advance.

[Tigs]

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

Yes, where a tenancy becomes a SPT a second penalty is due. The Deregulation Act 2015 changed things in so far that if the LL had complied with the regulations for the original tenancy, then there is now no longer a requirement to reprotect and reserve the PI. This does not apply in your case, so there are two failures.

See below for a recent double penalty case - scroll to Akrigg v Pigeon. This was a County Court so not binding, but a precedent, which you could quote.

http://nearlylegal.co.uk/2016/06/cou...ory-tenancies/

Citizens Advice provides some useful information on pursuing the disrepair claim:

https://www.citizensadvice.org.uk/ho...-of-disrepair/

bluezulu - well, what can I say: thank you so very much. I will let you know how I get on - one thing though, I would never have got any way near this far without the help from Forum Members. Thank you once again bluezulu!!!

[bluezulu]

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

Yes, where a tenancy becomes a SPT a second penalty is due. The Deregulation Act 2015 changed things in so far that if the LL had complied with the regulations for the original tenancy, then there is now no longer a requirement to reprotect and reserve the PI. This does not apply in your case, so there are two failures.

See below for a recent double penalty case - scroll to Akrigg v Pigeon. This was a County Court so not binding, but a precedent, which you could quote.

http://nearlylegal.co.uk/2016/06/cou...ory-tenancies/

Citizens Advice provides some useful information on pursuing the disrepair claim:

https://www.citizensadvice.org.uk/ho...-of-disrepair/

[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.

[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.

[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/

[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.

[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.

[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.

[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.

[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

[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.