Section 214

[adwzie]

Hi all,

After 3 months unsuccessfully trying to get our deposit returned we decided to file a claim using section 214 of the Housing Act 2004 which says that if the deposit wasn't paid into a Tenancy Deposit Scheme then the landlord has to pay you 3 times the deposit as a fine.

Unfortunately we may have fallen at the first hurdle. We sent the claim to the local Magistrates' Court. We've now realised it should have been sent to the County Court.

Does anyone have any advice?

[Bloo Loo]

Hi all,

After 3 months unsuccessfully trying to get our deposit returned we decided to file a claim using section 214 of the Housing Act 2004 which says that if the deposit wasn't paid into a Tenancy Deposit Scheme then the landlord has to pay you 3 times the deposit as a fine.

Unfortunately we may have fallen at the first hurdle. We sent the claim to the local Magistrates' Court. We've now realised it should have been sent to the County Court.

Does anyone have any advice?

I thought magistrates were for ciminal cases.

pick up the phone book, ring the local county court and get them to send you a claim form.

you could probably download one from somewhere if you google it.

[adwzie]

I know the Magistrates Court is for criminal cases, that's why I'm posting.

I also know how to get a form (we sent it to the magistrates' court).

The questions is what to do about the claim we've sent to the Magistrates' Court. Will they forward it to the County Court. Is there anyway we cancel it before sending off another one to the County Court?

Edited February 12, 2009 by adwzie

[Bloo Loo]

I know the Magistrates Court is for criminal cases, that's why I'm posting.

I also know how to get a form (we sent it to the magistrates' court).

The questions is what to do about the claim we've sent to the Magistrates' Court. Will they forward it to the County Court. Is there anyway we cancel it before sending off another one to the County Court?

ring and ask.

[adwzie]

Bloo Loo,

Please stop responding unless you have something meaningful to add. Clearly I'm aware of telephones.

I posted on here because there are people here who know more than just the blindingly obvious. You're clogging up my post and making it less likely I will get any useful advice.

[Matt Henson]

I know the Magistrates Court is for criminal cases, that's why I'm posting.

I also know how to get a form (we sent it to the magistrates' court).

The questions is what to do about the claim we've sent to the Magistrates' Court. Will they forward it to the County Court. Is there anyway we cancel it before sending off another one to the County Court?

Bit of daft question really because you just need to send the right application to the county court and in the meantime wait for the magistrates court to tell you sent it to the wrong court as that is all they will do. However..... dead keen to find out how you get on given the claim is retrospective and in theory does not give the chance for the LL to place the deposit in the TDS the day of the court case which it seems clause 214 allows them to do

[Financial Hack]

Bloo Loo,

Please stop responding unless you have something meaningful to add. Clearly I'm aware of telephones.

I posted on here because there are people here who know more than just the blindingly obvious. You're clogging up my post and making it less likely I will get any useful advice.

Ohhhh... handbags.

Bloo Loo is just informing you that the best way to deal with this is pick up the phone. You can't expect internet forums to just sort your life out for you.

BTW, I don't know how to tie my shoelaces, can anyone here give me some tips?

[cartimandua51]

Bit of daft question really because you just need to send the right application to the county court and in the meantime wait for the magistrates court to tell you sent it to the wrong court as that is all they will do. However..... dead keen to find out how you get on given the claim is retrospective and in theory does not give the chance for the LL to place the deposit in the TDS the day of the court case which it seems clause 214 allows them to do

+1.

My understanding was that you had to be (i.e. currently) a tenant for this penalty clause to apply. At least, that was what I was told by one of the guys running one of the schemes when he did a talk for landlords. Applied to me at the time as I was in the situation of having taken a deposit BEFORE the scheme came in, but the tenant then signed a new AST not paying any further deposit - bit of a grey area.

[Matt Henson]

+1.

My understanding was that you had to be (i.e. currently) a tenant for this penalty clause to apply. At least, that was what I was told by one of the guys running one of the schemes when he did a talk for landlords. Applied to me at the time as I was in the situation of having taken a deposit BEFORE the scheme came in, but the tenant then signed a new AST not paying any further deposit - bit of a grey area.

You are right, we don't know when the tenancy starts, can the OP provide that information?

However presuming the tenancy started post April 2007, the LL never protected the deposit and the OP is now in the position where the LL refuses to return the deposit and so needs to apply to the small claims court for it return, is he still eligable for compensation under clause 213/4.

The LL never met their legal obligation and now can not because the tenancy has ended, I am making a basic presumption here, but the LL now has no opportunity to retrospectively protect a deposit because no tenancy exists. Interesting to see where it goes.

In terms of your grey area, I started a tenancy with my tenants in 2005 which has been periodic for 3 years now but still protected to the deposit (under the I hold it (have already spent it!!!) scheme) just to be safe, for the sake of £80 it could save £4000 under the wrong judge

Also another question to the OP, why is the LL not returning the deposit?

Edited February 13, 2009 by Matt Henson

[adwzie]

I've been advised the Magistrates' Court will pass the claim on to the County Court. If anyone finds themselves in our situation then I would advise you not to just fire off another claim to the County Court!

With regards to the more general points, from what I've read of the Housing Act 2004 there's no requirement that you are still a tenant. The tenancy started pre April 07 but was renewed in 2008. This is a grey area but advice from Shelter and also the Communities and Local Government website is that if the tenancy is renewed after April 2007 then it's covered by section 214.

You're also right that it would now be impossible for the landlord to put right the situation by paying it into a TDS but so what. He should have thought of that before he chose to ignore the law by not paying it into a TDS and then hanging onto our deposit for 3 months without cause. It's like insuring a car. It's too late once you've already had your accident!

[Matt Henson]

I've been advised the Magistrates' Court will pass the claim on to the County Court. If anyone finds themselves in our situation then I would advise you not to just fire off another claim to the County Court!

With regards to the more general points, from what I've read of the Housing Act 2004 there's no requirement that you are still a tenant. The tenancy started pre April 07 but was renewed in 2008. This is a grey area but advice from Shelter and also the Communities and Local Government website is that if the tenancy is renewed after April 2007 then it's covered by section 214.

You're also right that it would now be impossible for the landlord to put right the situation by paying it into a TDS but so what. He should have thought of that before he chose to ignore the law by not paying it into a TDS and then hanging onto our deposit for 3 months without cause. It's like insuring a car. It's too late once you've already had your accident!

I would argue that you may not have a case as there are now several example where the LL has succesfully argued the rules don't apply if the original tenancy started before april 2007, it is not clear cut

Let us know how you get on, we would be interested to know, also what are he LL reasons for withholding, always good for a laugh but maybe we can give a little advice on how to counter

Edited February 13, 2009 by Matt Henson

[adwzie]

No, it's not clear cut but we've got nothing to lose.

Would love to give you a laugh but he hasn't given reasons for not returning the deposit. So if the section 214 fails then we've got a decent case for pursuing the deposit in the normal way.

At least section 214 turns the tables on landlords. Normally in a deposit dispute the worst that can happen to a landlord is that he has to pay back a deposit which belongs to the tenant anyway. Under section 214, it's the tenant who has nothing to lose.

[Matt Henson]

No, it's not clear cut but we've got nothing to lose.

Would love to give you a laugh but he hasn't given reasons for not returning the deposit. So if the section 214 fails then we've got a decent case for pursuing the deposit in the normal way.

At least section 214 turns the tables on landlords. Normally in a deposit dispute the worst that can happen to a landlord is that he has to pay back a deposit which belongs to the tenant anyway. Under section 214, it's the tenant who has nothing to lose.

I hate tossers like that, wishing you the very best of luck

[NeilB]

I'm in a similar position myself - which I have just posted about seperately - with a tenancy which began after April 07 and ended 6 weeks ago. Our deposit was never registered with a TDS and has now been witheld by the LL. Just wondering if the OP got anywhere with a retrospective claim?

Edited May 4, 2009 by NeilB

[sfg132]

Hi all,

After 3 months unsuccessfully trying to get our deposit returned we decided to file a claim using section 214 of the Housing Act 2004 which says that if the deposit wasn't paid into a Tenancy Deposit Scheme then the landlord has to pay you 3 times the deposit as a fine.

Unfortunately we may have fallen at the first hurdle. We sent the claim to the local Magistrates' Court. We've now realised it should have been sent to the County Court.

Does anyone have any advice?

Hi Adwize,

You can make a claim on an N1 form. You can download this form at http://www.hmcourts-service.gov.uk/. You would submit this to the county court and claim through the small claims track. There will be a hearing. This is a strict liablity penalty so you have a very good chance of winning. There is case law on non protection of deposits you will find this in

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.

[Planner]

Hi Adwize,

You can make a claim on an N1 form. You can download this form at http://www.hmcourts-service.gov.uk/. You would submit this to the county court and claim through the small claims track. There will be a hearing. This is a strict liablity penalty so you have a very good chance of winning. There is case law on non protection of deposits you will find this in

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.

Number of potential issues;

- You wouldnt use a N1 county court claim form (or moneyclaim online), you would use a N208 claim form for tds non-compliance cases.

- The Stankova v. Glassonbury case is somewhat out of date and more recent (and conflicting outcome cases) can be found at http://www.isurv.com/site/scripts/document...documentID=2163 .

- All of the decisions (that I am aware of) are county court decisions and so arent binding on future cases.

I think its reasonable to say that the rule of thumb at the moment is that a landlord/letting agent can 'comply' with TDS requirements al the way up to the court date. I think people should be aware that TDS is by no means a guaranteed cash cow for the tenant. On the other hand if you have £150 spare (and some on the backburner for potential costs) then its worth having a go.

Edited May 6, 2009 by Planner

[Chrysalis]

am I reading this correctly.

Basically if the tenant is a ex tenant then the landlord gets let off because he cant correct his wrongful actions? even tho the law says its supposed to be protected immediatly not simply when asked.

Laws always having stupid loopholes, what happens if the tenant asked a month before leaving (month notice) then LL didnt protect deposit but is now a ex landlord.

[adwzie]

All,

Thanks for the advice. I have a court hearing 1 June. There's another post on this started by Lee Harvey Oswald so I'll provide updates there.

[Guest_FaFa!_*]

I think its reasonable to say that the rule of thumb at the moment is that a landlord/letting agent can 'comply' with TDS requirements al the way up to the court date. I think people should be aware that TDS is by no means a guaranteed cash cow for the tenant. On the other hand if you have £150 spare (and some on the backburner for potential costs) then its worth having a go.

With all due respect, this is totally incorrect. The LL must comply with the terms of the TDS within 14 days of receiving the money and also let you know where the deposit is held within 14 days. Failure to comply with either of these requirements is a breach of the TDS and makes them liable. It doesn't matter whether or not the LL has paid you back (though if he/she has, is it worth the hassle?) they have acted illegally and are liable to pay compensation.