[Planner]

For Information;

Myself and a number of others have come up with the following possible wording for TDS non-compliance claims. This is to be used in conjunction with the N208 County Court Claim Form.

I would add the health warning that we still aren’t 100% sure that the N208 is the correct way to go (the other option being N1). You have been warned!!

The applicant makes a claim under the Housing Act 2004 section 214(1)(a) that the deposit of £825 as required in the Assured Shorthold Tenancy for 'the rental address' was not paid in to an appropriate tenancy deposit scheme (in accordance with section 213 (1) of the Housing Act 2004) or the applicant did not received the prescribed information concerning which Tenancy Deposit Scheme was to hold the deposit, within 14 days of the defendants receipt of the deposit (in accordance with section 213 (3) of the Housing Act 2004).

1) The applicant asks that the court makes an order in accordance with the Housing Act 2004 section 214 (3) which states the following;

(a) "order the person who appears to the court to be holding the deposit to repay it to the applicant"

A total of (Insert £ Original Deposit amount here)

And I understand that the Court Must also do the following;

2) The applicant asks that the court makes an order in accordance with the Housing Act 2004. Section 214 (4) which states the following;

"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.”

A total of (Insert £ x3 original deposit amount here)

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from (Insert Date deposit should have been returned) to (Date you Submit the Application) of (Insert £ worked out using the court interest rate calculation from their website) and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of (Insert £ worked out using the court interest rate calculation from their website).

I am therefore seeking payment of (Insert £ of original deposit + X3 Deposit), court fee and interest.

http://www.hmcourts-....ex302_0406.pdf - Link on how to work out interest on original deposit only.

http://www.hmcourts-...;/n208_1000.pdf - Link to N208 Claim Form

http://www.hmcourts-....n208a_0499.pdf - Link to N208 guidance notes.

Love to here your comments.

This post has been edited by Planner: 10 January 2008 - 05:43 PM

[tr1ck5t3r]

check out the law here
http://www.england-l..._20040034_en_19
Section 214 (4) (bottom of the page)

but go to the next section http://www.england-l..._20040034_en_20
and if the LL didnt put the deposit in a proper deposit scheme then S21 (eviction notices) can not be served until the LL has become compliant with the deposit so .......

[Planner]

Mr Rose, on Jan 11 2008, 11:08 AM, said:

check out the law here
http://www.england-l..._20040034_en_19
Section 214 (4) (bottom of the page)

but go to the next section http://www.england-l..._20040034_en_20
and if the LL didnt put the deposit in a proper deposit scheme then S21 (eviction notices) can not be served until the LL has become compliant with the deposit so .......

And I would add section 21 cant be used not only when the deposit is not in a TDS scheme, but also when the prescribed information concerning that scheme has not been passed onto the tenant within 14 days of deposit receipt, both of these conditions must have been met.

[Planner]

Heres the first successful prosecution (thats I know of) under TDS legislation!!! (thanks to Joa, Consumer Action Forums)

TENANCY DEPOSIT CASE (S213 HA 2004)

Stankova v. Glassonbury 10th March 2008, Gloucester County Court

The claimant Ms Stankova is from Bulgaria and took a private tenancy with Mr Glassonbury on 1.8.07. She was a joint tenant with her daughter and another tenant (unknown to her before start of tenancy).

The tenants jointly paid a deposit of £600 in order to move in. The landlord did not notify any of the tenants that he had deposited the money in any of the statutory Schemes at any time.

There were various problems with the landlord and he served notice on 2.10.07. The notice was defective. The third tenant moved out of property shortly afterwards and the three tenants made arrangements about how the deposit would be dealt with on its return.

On 28.10.07 the landlord entered the property and removed a carpet and the fireplace from the lounge making it unusable and also pulled the extractor fan out of kitchen leaving a hole in roof. The Council dealt with the harassment. The landlord promptly served a further notice November 2007 under s21 which was on the face of it a valid notice.

Ms Stankova moved out in Feb 2008. She made a claim under the Housing Act 2004 against the landlord for his failure to notify her within 14 days of how he would deal with the deposit and which scheme he was using.

The landlord submitted various arguments against the claim; that the tenant owed some rent arrears, that he had now placed the deposit in a scheme and that there was damage at the property for which he would wish to withhold some or all of the deposit.

At the hearing of the matter District Judge Singleton ordered the landlord to pay £1800 +£75 costs in respect of three times the deposit plus the court fee.

In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or other arguments about the return or retention of the deposit on the basis that a statutory scheme included arbitration for disputed about returning or retaining deposit monies.

Comment: In giving his decision the judge expressed concern that ‘it goes against the grain’ and advised the landlord to take legal advice as to whether he could delay the 14 days in which he must pay the claimant.

[agent46]

Planner, on Apr 15 2008, 09:26 PM, said:

In awarding the monies, the judge accepted the tenant’s argument that the award was a strict liability penalty, and that consequently there was no provision for counterclaim for outstanding rent arrears or other arguments about the return or retention of the deposit on the basis that a statutory scheme included arbitration for disputed about returning or retaining deposit monies.

Comment: In giving his decision the judge expressed concern that ‘it goes against the grain’ and advised the landlord to take legal advice as to whether he could delay the 14 days in which he must pay the claimant.

I'm not sure how he came to the conclusion that the LL couldn't counterclaim in the same proceedings. However, if the LL is owed rent or damages for diplapidations, I can see no reason why he can't set those monies off against the £1800 he owes the tenant.

Moreover, if the judge based his reasoning on the fact that the TDS schemes all run Alternative Dispute Resolution schemes, then he's fallen into error, because it is made quite clear in the legislation that the ADR schemes only apply when both parties consent and they do not in any way oust the jurisdiction of the Court.

I note that the judge seems to have decided that the failure to provide information cannot be rectified by way of remedial compliance with the requirement to provide information. I made the same point in this forum a couple of weeks ago; see here: http://www.housepric...d...15&start=15

[asquithea]

agent46, on Apr 15 2008, 10:01 PM, said:

I'm not sure how he came to the conclusion that the LL couldn't counterclaim in the same proceedings.

Surely if the deposit was unprotected, the LL isn't entitled to retain any of it, regardless of damage? It sounds like a straightforward claim for the deposit protection penalty to be applied, and surely not an appropriate forum for a free-for-all.

Not sure I understand the trailing comment from the Judge, though.

[agent46]

asquithea, on Apr 15 2008, 10:40 PM, said:

Surely if the deposit was unprotected, the LL isn't entitled to retain any of it, regardless of damage? It sounds like a straightforward claim for the deposit protection penalty to be applied, and surely not an appropriate forum for a free-for-all.

Not sure I understand the trailing comment from the Judge, though.

On the contrary, failure to protect the deposit (or if proof isn't provided of the same within 14 days) doesn't necessarily disallow the LL from having a claim on the deposit. The court must order that the deposit is either returned to the tenant or paid into the custodial scheme, but that order does not extinguish the LL's free-standing right of action (a cross-claim/counterclaim) over the money for eg: rent arrears or dilapidations.

The proceedings would not become, as you put it, a "free for all". In fact, to determine all matters in dispute between the parties in one hearing as opposed to a multiplicity of proceedings would be the best way of fulfilling the "overriding objective" as set out in the Civil Procedure Rules (r.1).

[asquithea]

agent46, on Apr 15 2008, 11:49 PM, said:

On the contrary, failure to protect the deposit (or if proof isn't provided of the same within 14 days) doesn't necessarily disallow the LL from having a claim on the deposit. The court must order that the deposit is either returned to the tenant or paid into the custodial scheme, but that order does not extinguish the LL's free-standing right of action (a cross-claim/counterclaim) over the money for eg: rent arrears or dilapidations.

The proceedings would not become, as you put it, a "free for all". In fact, to determine all matters in dispute between the parties in one hearing as opposed to a multiplicity of proceedings would be the best way of fulfilling the "overriding objective" as set out in the Civil Procedure Rules (r.1).

OK, paying into a scheme would have been an option whilst the tenancy was still in existance, but given that the tenants had left the property, how could that be accomplished? It looks like the court can only take the other option, which is to repay the deposit.

Either way, the 3x penalty looks unavoidable.

[agent46]

asquithea, on Apr 16 2008, 12:00 AM, said:

OK, paying into a scheme would have been an option whilst the tenancy was still in existance, but given that the tenants had left the property, how could that be accomplished? It looks like the court can only take the other option, which is to repay the deposit.

Either way, the 3x penalty looks unavoidable.

Again, if there is a prima facie case made out by the LL, I would argue that in order to avoid the situation where the tenant dissipates the funds before the LL can enforce judgement the most just and convenient order would be to order the payment of the deposit into the custodial scheme. Failing that, if the judge for some reason doesn't believe he has the power to make such an order (although I think the legislation doesn't prevent it), in any event, the Court has a jurisdiction to order the tenant to pay the money into Court as a condition of defending the LL's counterclaim. This is actually quite a common outcome and a similar order is frequently made in cases where the LL is claiming rent arrears, but the tenant counterclaims damages for disrepair to set-off the arrears. This is known as a "payment into Court to abide the event", or in common parlance, "a payment into Court to stop the tenant running off with the money"

Re: 3X the deposit - no argument there. As posted above, and also see: http://www.housepric...d...15&start=15

This post has been edited by agent46: 15 April 2008 - 11:44 PM

[Planner]

agent46, on Apr 15 2008, 10:01 PM, said:

I'm not sure how he came to the conclusion that the LL couldn't counterclaim in the same proceedings. However, if the LL is owed rent or damages for diplapidations, I can see no reason why he can't set those monies off against the £1800 he owes the tenant.

Poissibly N208 rather than the N1 route was used. N208 wouldnt permit a counterclaim. I am seeing if I can find the answer on which form was used!, but I have always suggested that N208 is the correct route for this type of claim.

[agent46]

Planner, on Apr 16 2008, 04:07 PM, said:

Poissibly N208 rather than the N1 route was used. N208 wouldnt permit a counterclaim. I am seeing if I can find the answer on which form was used!, but I have always suggested that N208 is the correct route for this type of claim.

Although TDP proceedings are not listed in Table B in the Part 8 Practice Direction I think you're probably correct in your belief that Part 8 proceedings are the correct procedural route for such claims.

The LL defendant could object to the proceeding being heard as a Part 8 claim; see CPR r.8.8 "Where the defendant contends that the Part 8 procedure should not be used because – (a) there is a substantial dispute of fact; and ( b ) the use of the Part 8 procedure is not required or permitted by a rule or practice direction, he must state his reasons when he files his acknowledgment of service."

However, there is no reason why the Court cannot, using its inherent case management powers, "convert" the proceedings into an ordinary Part 7 claim if other matters need to be dealt with at the same time; see CPR r.8 "The court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the court may give any directions it considers appropriate."

Also, in any case, counterclaims are permitted in Part 8 claims, although the permission of the Court is required; see CPR r.8.7 "Where the Part 8 procedure is used, Part 20 (counterclaims and other additional claims) applies except that a party may not make a Part 20 claim (as defined by rule 20.2) without the court’s permission."

This post has been edited by agent46: 16 April 2008 - 04:51 PM

[David Richards]

Can you please confirm which forms would be needed for this procedure. Mine is a complicated one, my letting agent did not properly protect the deposit by not registering with online with the dispute service and not issuing a certifictae of registration and also my landlord took a seperate deposit for a pet we took in and NEVER registered it at all.

I have to issue two sets of documents for the court and wish some guidance over which form is correct

Many thanks in advance

David

[renterbob]

David Richards, on May 1 2008, 07:59 AM, said:

Can you please confirm which forms would be needed for this procedure. Mine is a complicated one, my letting agent did not properly protect the deposit by not registering with online with the dispute service and not issuing a certifictae of registration and also my landlord took a seperate deposit for a pet we took in and NEVER registered it at all.

I have to issue two sets of documents for the court and wish some guidance over which form is correct

Many thanks in advance

David

Whilst in court, one may also mention the LL has not only not protected the deposit within 14 days (emphasize the 14 days in LAW early in the hearing, as the judge may not be aware of this, as judges become aware of the 14 day rule they will award more tenants the full 3x deposit, as many have done so) but find a fault with the gas.

If the LL does not have TWO years of gas safety certificates, they face fines of several thousand pounds in addition to the 3x deposit.
http://www.consumera...omes-links.html

[Planner]

renterbob, on Nov 9 2008, 10:16 AM, said:

Whilst in court, one may also mention the LL has not only not protected the deposit within 14 days (emphasize the 14 days in LAW early in the hearing, as the judge may not be aware of this, as judges become aware of the 14 day rule they will award more tenants the full 3x deposit, as many have done so) but find a fault with the gas.

If the LL does not have TWO years of gas safety certificates, they face fines of several thousand pounds in addition to the 3x deposit.
http://www.consumera...omes-links.html

No the 14 day rule is irrelevant.

[renterbob]

Planner, on Nov 9 2008, 12:03 PM, said:

No the 14 day rule is irrelevant.

No, that's why it's called the 14 day rule.

It's not the 'quick deposit it pronto before court' rule.