Landlord Not Putting Deposit In Government Approved Scheme

[khime]

Hello, I need some advice from you helpful people here on hpc

We moved into a rented property on 1st May 2010 and paid the 1st months rent + deposit to the EA before we moved in.

As of today (24 days since we moved in) we still haven't got the certifcate of deposit and the landlord never answers our voicemails or sms. I spoke to him once on 19th May and he said the deposit certifcate was "in the post" which we haven't received.

I spoke to the EA and told them that the landlord was ignoring us and they have somehow managed to find out he is on holiday so we prob won't get any sort of reply until June now.

I was reading on Direct.gov.uk tennancy deposit information that the deposit has to be in an approved scheme within 14 days or

You can apply to your local county court. The court can order the landlord or agent to either repay the deposit to you or protect it in a scheme. If your landlord or agent has not protected your deposit, they will be ordered to repay three times the amount of the deposit to you.

Judging by our attempts to contact the landlord and lack of reply I think we may have to take this further and we are asking if anybody has taken this further and their experience and what procedure to use.

Regards

Edited May 25, 2010 by khime

[Reluctant Heretic]

Hello, I need some advice from you helpful people here on hpc

We moved into a rented property on 1st May 2010 and paid the 1st months rent + deposit to the EA before we moved in.

As of today (24 days since we moved in) we still haven't got the certifcate of deposit and the landlord never answers our voicemails or sms. I spoke to him once on 19th May and he said the deposit certifcate was "in the post" which we haven't received.

I spoke to the EA and told them that the landlord was ignoring us and they have somehow managed to find out he is on holiday so we prob won't get any sort of reply until June now.

I was reading on Direct.gov.uk tennancy deposit information that the deposit has to be in an approved scheme within 14 days or

Judging by our attempts to contact the landlord and lack of reply I think we may have to take this further and we are asking if anybody has taken this further and their experience and what procedure to use.

Regards

More fool him, from DPS website :

Where a Landlord fails to comply with Tenancy Deposit Protection, there are two sanctions:-

1. Unable to use Section 21 notice

Currently, a landlord can serve two months' written notice in the prescribed form under Section 21 of Housing Act 1988 on a tenant in order to terminate a tenancy at the end of a fixed term, or after a fixed term has expired. If necessary, a landlord can obtain an order for possession of an AST in the County Courts under Section 21 of the Housing Act 1988. However, where a landlord fails to comply with Tenancy Deposit Protection, no Section 21 notice may be given in relation to the tenancy until such time as the legislation is complied with.

2. Payment to the Tenant

Tenants can make an application to a County Court under Housing Act 2004 if they believe that their deposit is not being safeguarded, or where they have not been given the prescribed information about the scheme in which the deposit is safeguarded within 14 days of the landlord receiving the deposit.

Where the court is satisfied that the landlord has failed to comply with these requirements, or the deposit is not being held in an authorised scheme, the court must either order the landlord to repay the deposit within 14 days of the making of the order, or order the landlord to pay the deposit to the custodial scheme administrator.

The court must also order the landlord to pay the tenant three times the deposit amount within 14 days of the making of the order.

[khime]

Ok thanks for the reply Reluctant Heretic

Points though

1) He cant kick us out legally (I don't believe he will as the place had been empty for over a year from speaking to neighbours). However there is still the risk of the house being repossessed (That is what happened to our last property) so we can still be kicked out involuntarily.

2) So the procedure to do this is through a small claims court? Will that cost us money?

I don't really want to do this in case as it could make the landlord do things to us to get back at us (e.g come in unannounced, not fix things,, etc)?

Anyone with experience of doing this and the outcome of it?

I'll be suprised if this is a rare occurance judging from our previous landlords (we have had to chase landlords for the deposit certificate alot of the time)

[MacGuffin]

Ok thanks for the reply Reluctant Heretic

Points though

1) He cant kick us out legally (I don't believe he will as the place had been empty for over a year from speaking to neighbours). However there is still the risk of the house being repossessed (That is what happened to our last property) so we can still be kicked out involuntarily.

2) So the procedure to do this is through a small claims court? Will that cost us money?

I don't really want to do this in case as it could make the landlord do things to us to get back at us (e.g come in unannounced, not fix things,, etc)?

Anyone with experience of doing this and the outcome of it?

I'll be suprised if this is a rare occurance judging from our previous landlords (we have had to chase landlords for the deposit certificate alot of the time)

1) That's got nothing to do with the deposit issue.

2) Yes, if you wanted to take the LL to court to apply the '3x' deposit penalty, you would go to a small claims court. The fee will be a small percentage of the claim amount. If the landlord loses, he will be required to pay you for the court fee as well.

Before you go that far, however, you should ring all three of the TD schemes. They will be able to check to see if your deposit is with registered with them.

Edited May 26, 2010 by MacGuffin

[khime]

Ok, thanks MacGuffin for the advice

Going to check with the 3 approved schemes now

[Reluctant Heretic]

Ok thanks for the reply Reluctant Heretic

Points though

1) He cant kick us out legally (I don't believe he will as the place had been empty for over a year from speaking to neighbours). However there is still the risk of the house being repossessed (That is what happened to our last property) so we can still be kicked out involuntarily.

2) So the procedure to do this is through a small claims court? Will that cost us money?

I don't really want to do this in case as it could make the landlord do things to us to get back at us (e.g come in unannounced, not fix things,, etc)?

Anyone with experience of doing this and the outcome of it?

I'll be suprised if this is a rare occurance judging from our previous landlords (we have had to chase landlords for the deposit certificate alot of the time)

Sorry I didn't get back to you Khime - another busy week! I always recommend to people in any dispute that they take the softly softly approach first and keep their aces back. Personally I would just sit back and wait for the day that he tries to serve a s21. Give it some time, if things are panning out nicely then no need to rock the boat - if he is a slime ball - then go for the jugular because the chances are that you won't have anything to lose anyway. If he turns out to be exploitive you will want to jump without any pushing and you may then have trouble getting your deposit back.

(I am writing this late and after glass (or two) of wine - so apologies if I'm not making any sense!)

[Guest_FaFa!_*]

I would agree with RH above. I have gone through the process of sueing my previous LL for the 3 times which I (eventually) won. It was a long, labourious slog but ultimately it was worth it. I would recommend you don't tell your LL until the day you leave or the LL serves the S21. If you initiate proceedings now it will pointlessly poison your relationship. Get the wirtten evidence now ready to simply use as the nuclear option should the LL play silly buggers when you go.

[khime]

Thats good advice Baby Eating Boomer

I have had a reply from mydeposits that it is not in the scheme and I am awaiting replies from the other 2 TDS

I was going to start the small claims court as soon as the other 2 TDS get back to me but after your experience on it being a long process and about souring the relationship I will put it on hold for the time being.

We have signed up for a year and we don't want to move after the year has expired as we have moved 5 times in 4 years now which is quite stressful and expensive!

Of course there is a risk that if the landlord gets a repossession order for the house (like what has happened to our old place and we can't contact the old landlord) our deposit will be lost! I guess this is the risk we have to consider.

Can I ask you BEB what stage where you when you sued the landlord? How long did it take the process & cost? What happened to the tennancy after you won?

[okaycuckoo]

Can I ask you BEB what stage where you when you sued the landlord? How long did it take the process & cost? What happened to the tennancy after you won?

You should read this, including the comments at the end - it's a bit of a mess:

http://nearlylegal.co.uk/blog/2010/02/two-weeks-three-months-whatever-tds-in-the-high-court/

When it comes to tenants being turfed out on a repo, there is new legislation but I don't think it's in force yet:

http://www.mablaw.com/2010/04/the-mortgage-repossessions-tenant-protection-act-2010/

[Guest_FaFa!_*]

Can I ask you BEB what stage where you when you sued the landlord? How long did it take the process & cost? What happened to the tennancy after you won?

Mrs Boomer and I had already left the property and were arguing with the LL over the deposit. There was a maintenance issue with the flat that we considered to be a minor issue and had not contacted the LL about before leaving, but turned out to be more serious. Whilst we accepted liability for that problem and said we would pay, the LL then decided to charge us for everything under the sun which we objected to. We were unaware of the precise details of the deposit scheme, but remembered we had been told about an arbitration service for these sorts of issues. We asked him to arrange said arbitration, he refused. We then just asked for the balance of the deposit. When this was not forthcoming did more research and discovered that he had not place said deposit in TDS. The discovery of his negligence coupled with his high and might attitude throughout negotiations left us livid. We sued.

I took all the paperwork to the local court myself and it cost about £100 (this is added to the claim, so if you win you don't lose the money - the sum of money varies from court to court). I filed the paperwork 1 month after moving out, and it took a further 2 months to come to court. He attended the hearing and challenged my version of events. I think the judge felt sorry for him and permitted him further time to come up with a defence. 2 months after this we received his defence and counterclaim, which we responded to. It then took a further 2-3 months before another judge looked at it and discovered that the LL had not done the paperwork properly. LL was then given a third chance, and another month to file the defence. He filed said defence and after a period of several weeks a judge saw it again and struck out his defence and counterclaim on grounds he had not followed procedure correctly. He was then given a month to cough up the money. We sent him a civil but firmly written letter shortly before the due date to inform him that we would not consider the royal mail strike to be a valid reason for non payment, of the consequences of not paying up and to advise him in no uncertain terms that we would not let matters rest should he fail to do so. He transferred the money on the deadline day. In all it took around 9 months from leaving the flat to getting the money.

As you can see, if the LL is stubborn you could have problems and this is why I strongly advise using it as a threat and not doing it unless absolutely necessary. Into this you will have to consider the likelihood of the LL disappearing. Even if I had known that the LL had not placed it into the TDS, I still would not have done anything during the tenancy as I knew he would not be able to do a runner. The problem is if you sue him now, he will undoubtedly kick you out at the first opportunity and will look to extract any money he can from you.

By the way, under the law you should have LL's address. Get it off the EA if you don't have it.

[khime]

That seems like a headache dealing with the claim! Sorry to hear that you had to go through that.

Just had an email from the 3 TDS that confirms none of them have our deposit registered with them so our landlord was lying when he said it was in the post to us (typical landlords!). This coupled with the fact that the landlord is an elusive creature we have to consider our options. The letting agents are saying they are not responsible for the deposit as it's not managed by them.

I have his address supplied by the letting agents so I will write a letter to him (signed for) so at least we can show the courts if required that we have tried our best to resolve this before going to court. This letter should get his attention.

All I can say is this current TDS system needs to be changed (although it's better than the old system leaving the whole deposit in the landlords account)

At the moment we have to pay the money to the letting agent who then forwards it to the landlord then we have to chase the landlord for the deposit certificate. It should changed to so the tennant pays the money directly to a TDS who will issue a certificate. The landlord / letting agent can check with the TDS if the deposit is valid before letting the tennant move in. This would resolve the issue of the tennants chasing the deposit certificate and then resorting to suing them using court time when this could be avoided. If the tennant doesnt supply a valid TDS certificate they don't move in (too simples?)

On a lighter note I have just put in a claim against the old landlord as he has done a runner and has not even checked out the old property or returned our deposit. I have started a dispute with a TDS and they said it could take 2/3 months for the process to be completed. At least we shouldn't have to go to court over this.

Edited June 2, 2010 by khime

[Guest_FaFa!_*]

That seems like a headache dealing with the claim! Sorry to hear that you had to go through that.

Such is life

Just had an email from the 3 TDS that confirms none of them have our deposit registered with them so our landlord was lying when he said it was in the post to us (typical landlords!). This coupled with the fact that the landlord is an elusive creature we have to consider our options. The letting agents are saying they are not responsible for the deposit as it's not managed by them.

It should be clear in the contract who is responsible, but I'd imagine the EA is right when they say it is not their business. What you have on your hands is a LL is (i) is a liar and (ii) does not tell you when he is going out of the country or makes arrangements to cover him in his absence. What do you think is going to happen if you have an emergency? At the moment he is uncontactable, which given that he manages the property is unforgiveable. What, precisely, are his responsibilities under the contract? I'd look into your rights in this situation via a vis getting out of the contract - find out at what point the LL can be deemed to be in breach of contract.

I have his address supplied by the letting agents so I will write a letter to him (signed for) so at least we can show the courts if required that we have tried our best to resolve this before going to court. This letter should get his attention.

IMHO, if you send him the letter asking him to protect the deposit and he complies why bother sueing him? If your aim is to ensure you don't lose the deposit, then that solves the issue. If you want the money out of him, then the timing is wrong. It will be easier to sue him once you leave and he no longer has power over you.

You are less than 1 month into the tenancy and he is already buggering about. In your shoes, I'd be looking into my options.

[khime]

Update: I got a call from one the the landlords employees (strange how the landlord himself doesn't want to speak to us) saying that the employee is arranging the deposit today and we should get confirmation next week. Lets see if that happens.

[vjdmorrey]

Update: I got a call from one the the landlords employees (strange how the landlord himself doesn't want to speak to us) saying that the employee is arranging the deposit today and we should get confirmation next week. Lets see if that happens.

I would threaten Court Action anyway..

It's amazing how quickly they sort themselves out afterwards..

VM

[Sparkie]

Hi Guys

My deposit was given to the LL in 2006 prior to the TDS scheme, Should she have placed my deposit in the scheme by now, or is she exempt due to the deposit placed prior to start of TDS?

Cheers for you help.

[Dr Elk]

Hi Guys

My deposit was given to the LL in 2006 prior to the TDS scheme, Should she have placed my deposit in the scheme by now, or is she exempt due to the deposit placed prior to start of TDS?

Cheers for you help.

Hi Sparkie

Its exempt as it pre-dates the scheme, although they may have put it in the TDS and not told you.

My previous rental was in that position of predating the TDS and they were trying to withhold. They generally pay up once you threaten court action. If you want more advice on how to do it there are several threads on it, or you could start one for your specific case.

[jonb]

Hi Guys

My deposit was given to the LL in 2006 prior to the TDS scheme, Should she have placed my deposit in the scheme by now, or is she exempt due to the deposit placed prior to start of TDS?

Cheers for you help.

She's exempt unfortunately.

[Sparkie]

Thanks for the advice, I'm giving the LL my notice next week, but suspect I'll have a fight for my deposit, to call her a spendthrift LL is an understatement, took 3 months to pay a plumber £30 bill once, he vowed never to work for her again.

[Dr Elk]

Thanks for the advice, I'm giving the LL my notice next week, but suspect I'll have a fight for my deposit, to call her a spendthrift LL is an understatement, took 3 months to pay a plumber £30 bill once, he vowed never to work for her again.

Well as you've lived there 4 years, a magistrate would probably consider anything short of major structural damage to be 'fair wear and tear'. Just say you don't consent to any deductions, as its all FW&T.

Remember a landlord has to prove deductions, not the other way round. If you don't have an inventory then its perfect, but even if you do then you should still probably get it all back.

Give them a few weeks to return it in full, and if its not returned then send a letter before action. Do this for any deduction, no matter how small.

[khime]

Hi guys, just an update to say we got the TDS certificate now. So it seems you have to keep "reminding" the LL about it (i.e Bug him constantly so he realises he won't get away with it and to do it to stop us ringing him and texting him every week)

Now for the fun part of trying to get the deposit back from the previous landlord who seems to have disappeared off the face of the earth. Mydeposits says it may take 2/3 months to resolve. However I see our old property is back on the market @ £157k (3 bed tiny terrace in South Manchester with converted loft). Looking at housprices.co.uk I saw the landlord bought it for £120k in 2007 peak prices so I am perplexed how its managed to gain £37k in asking price since the recession / credit crunch!

Edited June 19, 2010 by khime