Compensation for late protection of deposit

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    Compensation for late protection of deposit

    After taking advice I've decided to try and claim compensation for the late protection of my deposit. I didn't intend to do this but after the way in which my ex landlord has behaved and treated me I feel I should go ahead. I'm just wanting to know what the procedure is and how I go about it. I'm aware that tenants can be awarded between 1 and 3 x the deposit but is the initial deposit also awarded? I only ask as me and the landlord are currently desputing the deposit. I have a feeling I'll get he majority of it back as he's trying to claim unfairly for ridiculous amounts. Either way if the tenancy scheme award me some or all of my deposit back then I can't then be awarded the deposit amount back in court on top of the 1-3 x compensation can I? Just that's doesn't seem right?

    #2
    The timing is important.
    If you and the landlord agree the deductions and the landlord returns the rest of the deposit, you don't actually have anything to sue them for.
    Which complicates things for you - the claim becomes more expensive to initiate and is more complex.

    If you sue the landlord (via Money Claim Online) for the deposit, the deposit protection company will not intervene and try and resolve the disputed claims - which is the most simple way to resolve your differences with the landlord.

    Alternatively, resolve your issues with the landlord, and then use a no win no fee service to make a claim against the landlord - you'll get less in return but the landlord will pay out more (in legal costs).

    More effectively than either might be to simply highlight to the landlord that you are aware that the deposit was collected late, and, if they don't stop making unacceptable claims, you'll proceed with a court case that will cost them much more than they are trying to gain. Suggest they take legal advice before responding.
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      Hi. Sorry I'm a bit confused. The landlord made it clear he wouldn't be returning any of my deposit. The deposit is £825 and he's trying to claim for £2600 worth of damages. A friend of the family is a solicitor and he has helped us put my case together to try and get our deposit back so it's now with the Tds and they'll decide. So if I get my deposit back or some of it back am I then not entitled to claim compensation for late protection of the deposit? We lived in the house for almost six years and the landlord only protected it five years into our tenancy which was believe he did as he planned on getting me out. There was no oversight and as he owns other houses and rents them out you'd have thought he'd be aware of his obligations to protect the deposit on time.

      Comment


        #4
        It's not compensation it's a penalty:. To encourage landlords to obey the law!
        I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

        Comment


          #5
          Also, I did contact the landlord to tell him I'm aware that he didn't protect my deposit in time. I was amicable and asked if we could resolve things but he became abusive and made it clear he wasn't willing to discuss it further. I'm not tying to extort money from him and had no intention of trying to claim compensation. But then he provided this fake over the top invoice trying to charge me for new appliances in his home that did not need replacing in he first place. He has gone to great lengths to make me look like a bad tenant when in truth I never gave him any trouble, always paid me rent on time and asked him for nothing. He even went as far as to write a letter bashing me and my children. Everything in it was complete lies and had me heart broken at first reading it as he knows I was a good tenant.

          Comment


            #6
            That's exactly it a penalty. I've known for months about him protecting my deposit late and like I said I wasn't going to do anything about it. But then he's turned nasty and to be fair the only reason I knew about the deposit being protected was because the tenancy scheme emailed me earlier this year. I know he protected it eventually but taking five years is ridiculous. If he'd have wanted me out before he prrotected the deposit then I assume I would have lost my deposit outright as the tenancy scheme, having not received the deposit, wouldn't be able to help me.

            Comment


              #7
              You are entitled to the penalty (which is not compensation), but it's practically difficult to make a claim if the deduction issues are resolved and the landlord doesn't owe you any money.

              The simplest route to get the penalty is for you to make a small claim against the landlord and for the judge to award the penalty as part of resolving the case.

              If you are now undergoing adjudication with the TDS, that route is currently not available. You might find that if you tell the tds you are going to sue your landlord for the deposit, they will stop the case and wait for the court. A court is likely to be unhappy that you stopped a binding adjudication in favour of going to court.

              If the landlord doesn't owe you any money, the small claims route isn't really viable, and you need to make a different claim, which is both more complex and costly to initiate (unless your solicitor friend assists). That claim asks the court to simply award the penalty and costs to you.
              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

              Comment


                #8
                If the landlord is trying to make a claim based on the cost of replacement appliances, that will fail, because that's not a deduction the landlord is entitled to.
                Even if the originals were completely useless when you left, the compensation is calculated on the value of the originals and has to accommodate the length of time that the appliances were usable.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Ah right I get what you're saying. It's the Dps we are dealing with not the Tds. From what I understand the Dps are the only scheme that will protect deposits late hence why the landlord went with them. I'm happy for the Dps to decide about the deposit as I feel it's a fait way of going about it. The landlord just assumed I wouldn't dispute the deposit and I'd just hand over 2000 ish to him. He didn't actually give the Dps the money isndtead he put it in the insured scheme. I think he spent the money and then got really mad when I told him I'd be contesting it as he's then had to dig into his own pockets and put the money into the scheme whilst the Dps decide who gets what back. I've read a few posts on here were landlords have returned the deposit to the tenant but the tenant has still gone to court for the deposit not being protected. How does the tenant getting the deposit back, in full or part, affect their right to go to court for the deposit? Only I thought this was a separate issue? Sorry for all the questions I'm just trying to get my head around it all.

                  Comment


                    #10
                    If the tenancy has ended, the court must award a penalty of between 1 to 3 times the amount of the deposit. It may order the return of the deposit. If there's no deposit to return, then the court just won't exercise that power.

                    A tenant is entitled to a penalty for each tenancy where the deposit was not protected or prescribed information served in time. A fixed term tenancy and the subsequent statutory periodic tenancy counts as two.

                    The intended way for a (ex-)tenant to make a deposit protection penalty claim is through what's called a Part 8 claim to the county court.

                    First you are required to follow what's called the Pre Action Protocol by sending a Letter Before Action. Basically a letter to the landlord saying "I am entitled to this penaly because you didn't protect the deposit in time, contact me within X days to discuss how we're going to settle this." Shelter England has good examples of such letters.

                    Then you fill in the Part 8 claim form (N208) (3x copies) and issue the claim at court. The correct fee for such a claim is the fixed "Non-money claim" one despite you asking for monetary penalty. It currently stands at £308. The court will seal the claim and either serve it onto your landlord for you, or send one or two copies of it back to you in which case you have to serve the sealed claim onto the landlord and let the court knows when you have done so (N215). The NUS had a few years ago published a guide on making such a claim. If you google and can find a copy of the updated & amended one that talks about Part 8 rather than small claims, then it can help you fill the Part 8 form in. Use it as a guide rather than a bible because it's not wholly perfect and accurate but if you're DIYing the claim, it can be very helpful. Make sure you ask for costs as well, but you are AFAIK not entitled to interest since no money is being owed at this point.

                    If the landlord respond to the claim, and filed a defence rather than admitting it, then you have a right of reply.

                    All evidence including witness statements are meant to be included when making the claim, or defense. You cannot bring new evidence forward later on.

                    After that, you wait for the court to list for a hearing. They may well list for a Direction Hearing rather than a full trial first, in which case attend it and follows the judge's directions.

                    Wait for an actual trial date, and prepare for trial. The court may or may not ask you to pay a hearing fee at this point. If they do, it's not cheap! As the claimant, you can and should probably prepare a bundle, skeleton argument etc. which you need to serve on the landlord and filed with the court after and by certain date. Assuming you win, you would be entitled to claim cost including court fees paid, but also limited lost of earnings or time. You would need to had fill in a Statement of Costs (summary assessment) (N260) and serve it onto the landlord and filing it with the court at the right time before the hearing. A litigant in person is entitled to either a evidence based amount up to a certain amount, or a fixed hourly rate of £19/hour last I checked. A solicitor acting for you (or the landlord if they win) would be entitled to rates of hundreds of pounds an hour (depending on seniority and location). A barrister.........

                    Hopefully you'll win the case itself, then you ask the judge to also award you cost and "Yes Sir/Madam, I did serve on the other side a Statement of Costs and here's a copy that was filed with the court but obviously never got to you..." Then you leave and wait for I can't remember how many days for the landlord to pay you what's ordered. If they don't............
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    I do not answer questions through private messages which should be posted publicly on the forum.

                    Comment


                      #11
                      No problem.

                      All of the schemes (as far as I know) allow a deposit to be protected at any time.
                      Otherwise, landlords wouldn't be able to "correct a mistake".

                      The tenant getting the deposit or part of it back doesn't affect the tenant's right to go to court.
                      It just affects how easy it is.

                      There are (very broadly) two routes available - a small claims/fast track option and a "part 8" track*
                      The small claims route is simple ,cheap and fairly user-friendly (you can do most of it online).
                      The Part 8 route is complex ( I wouldn't be confident in doing it without professional assistance personally) and is costly - making a claim is going to cost several hundred pounds - plus the legal fees. However, when you win, the costs will be awarded against the landlord.

                      The small claims court route is the best for someone in this case, but has two complications - it's not meant to handle deposit cases (but does) and the landlord can probably end the claim by showing that they don't owe you any money. The penalty isn't owed until a court awards it, and a smart landlord could probably keep the case out of court by having a valid defence. So if the DPS award the landlord £100 and the landlord returns the rest, he won't owe you anything and his defence would be simple.

                      The other thing the landlord could do is claim that the wrong track is being used, but that's probably not a good idea, in case you go ahead anyway on the more complex path.

                      The cost and difficulty of a part 8 case goes both ways, so it's much more costly to defend against, particularly as the defendant is usually, as here, guilty.
                      That's why the no win no fee people use that route - they want the claim to be mostly fees and frighten the landlord into paying to settle out of court. If you think the penalty is an issue, several thousand pounds of fees is seriously worrying. And cases taken on a contingency basis have a mechanism if you do go to court and win to allow the "no fee" solicitor to charge a win bonus of up to 100% of the fees.

                      But cases on that track are really hard to get right, so while you have every right to use it, most tenant's simply don't.
                      Justice is available to everyone, it's just too expensive and difficult.

                      *that's not exactly right, but it's going to take ages to go into more detail and it's probably good enough for this instance.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Just seen KTC's more detailed outline of a part 8 case (bloody quick typing that!) - see what I mean!!!
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          Thanks so much that's really helpful. But my god it sounds complicated. I don't know whether to go through with it as I suppose I'm without my rights, or just leave it. This person has caused me and my family so much stress this last year and I have anxiety problems which he has made much worse. But I'm always be better person, let things go and just roll over and I'm fed up with it. I'll have to have a think.

                          Comment


                            #14
                            You have 6 years from date when orig deposit should have been protected, to file a Claim.
                            Continue with DPS ADR as they can only award LL up to max deposit so you will not be able to claim the deposit as part of the Penalty. Your 'family friend' (Solicitor) should be able to confirm our advice.

                            Comment


                              #15
                              Originally posted by Sarah81 View Post
                              This person has caused me and my family so much stress this last year and I have anxiety problems which he has made much worse
                              and he'll go on doing that to other families unless someone exercises their rights against him and makes him face the consequences of not obeying the law.

                              Also, note that KTC mentioned the fact that it is a penalty PER TENANCY you are entitled to. Did you have one AST in the years you were his tenant and that went periodic or did you have multiple ASTs? If the latter, then the potential award is a multiple of that which is serious money.

                              If I was in your LL's position, I would be much more humble and be trying to come to terms with you. Instead, he's trying to intimidate you so that you don't bother pursuing the penalty that should rightfully be awarded against him.

                              Comment

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