My TDS Case Outcome!

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • My TDS Case Outcome!

    Hello all,

    Well I can put this case to bed now, the hearing was this afternoon and this is what happened and what can be inferred from the judges comments.

    The summarise - my situation was that I paid a deposit in April 06, for a 12 month AST. Then signed a new 12 month AST in April 07 for 12 months. The deposit was continued to be held against the new tenancy. The LL didn't protect it, but subsequently did on receipt of the court papers with mydeposits.co.uk (an insurance based scheme). I used N208 based on Planner's wording.

    The judge made the following comments:

    1. As it was a part 8 claim, a letter before action would not have made any difference as it's an absolute matter and no room for negotiation (in response to defendant's complaint about no LBA).

    2. The fact that the LL had subsequently protected the deposit made no difference to the case. It would still lead to judgement for either return or protection + x3 penalty.

    3. It was an absolute matter, with no case for morals or discretion on a penalty, it was all or nothing.


    HOWEVER!

    I lost the case

    The Housing Act 2004 says that a deposit falls under the new legislation if it is paid and received after April 6th 2007. The judge said that she had to consider whether the fact that the deposit was already in the defendant's possession and that it was agreed it would be a new deposit for the new 12 month AST, it was not in the traditional sense paid by me and received by the LL. She ruled that the deposit was paid by me and received by the LL in April 2006, hence the deposit had to requirement for protection. She said that that was her personal interpretation of paid and received and that the HA 2004 was not detailed as to the definition of both. She said that she may be wrong but without the guidance of a higher court ruling and with regret that that was her stance.

    So that is that - a big surprise to me. I didn't really ever question this point as from the online research and relevant leaflets etc from various sources that the vast concensus was that it didn't apply to renewals or periodics but it would apply for new ASTs where a deposit was continued to be held.

    I put forward about as many arguments as I could but was getting nowhere. I feel that appealing at this point would not get me any further. So I live with the knowledge that issuing the court papers when I did and then getting my Section 21 shortly after, forced me to find and move into a beautiful new flat which would now be on the market for £200 more per month so I've made back my court fee already... my way of justifying the loss.

    This should be of great help to those who signed and paid after April 2007, whose LL protected the deposit outside of the 14 days. On this point the judge agreed that the ruling would be absolutely clear and it was purely the 'paid and received' point on which I failed.

    Make of that what you will and thank you all for your assistance with making my case. It was an interesting process and I learnt a lot, as a tenant and as a landlord!

  • #2
    Thanks for the update, I think the judge is wrong, but as you have said, that would be a matter for a higher court.

    Comment


    • #3
      Originally posted by Colincbayley View Post
      Thanks for the update, I think the judge is wrong, but as you have said, that would be a matter for a higher court.
      I think the judge is absolutely correct.

      Interestingly, by deciding as she did, the judge must believe that the Govt guidance on the matter is wrong. I've been arguing this point for a year. My reasoning along the same lines is set out in a couple of posts on HPC where I had a bit of a ding-dong with someone who claimed inside departmental knowledge on the subject: here it is http://www.housepricecrash.co.uk/for...&#entry1063734

      My argument in summary:

      1) The deposit paid in respect of a tenancy commenced before 6th April 2007 is held on trust by either by the landlord or the agent.

      2) On the renewal of that tenancy post 6th April 2007, the deposit remains held by either the landlord or the agent in a bank account and is not, in any meaningful way, "paid" to them by the tenant.

      3) The effect of signing a new tenancy when the deposit remains in the LL or LA's bank account is NOT that the money is "paid" to the LA/LL (in the sense that legal and equitable title in the money passes on delivery), but that instead, there is a declaration of new trusts over the deposit money on the terms of the new tenancy agreement.

      4) The TDP provisions of HA 2004 only apply to deposits "paid" or "received" after 6th April 2007 and so do not apply to the above type of transaction, which is, as argued above, a declaration of new trusts over the deposit.

      5) As such, the HA 2004 is of no application to deposits paid pursuant to pre-Apr 07 tenancies which are then renewed after Apr 07.

      Sorry you lost your case, but subject to reversal by the appellate courts, I think this is the correct decision.
      Health Warning


      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

      Comment


      • #4
        Damn!!!!

        If you read the TDS scheme rules im sure they all say that a new/renewed ast means the depsoit must be protected. I think there is definatley a case for appeal here!

        Comment


        • #5
          Originally posted by Planner View Post
          Damn!!!!

          If you read the TDS scheme rules im sure they all say that a new/renewed ast means the depsoit must be protected. I think there is definatley a case for appeal here!
          The TDS guidance doesn't have the force of law. The guidance does exactly what it says on the tin (ie: guides), and without appearing to crow about the matter, I've been arguing with anyone who would listen for the past year that the guidance was wrong for the same reasons relied on by the learned judge.

          The judge appears, entirely correctly in my view, to have based her reasoning on the wording of s.213 and the meaning of the words "paid" and "received" and not on TDS guidance that was probably written by some departmental lackey lay-person civil servant on the orders of the Housing Minister.
          Health Warning


          I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

          All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

          Comment


          • #6
            We have another case due for hearing 30th April, along the same lines as this one ( renewed/new AST ) Be interesting if they come to a different judgement!
            Only one downside, the tenant bringing the case ( With my guidence ) is getting the jitters about the court hearing, and due to my arrangements I can't be there with her!
            Any advice? Other than a stiff brandy beforehand?

            Comment


            • #7
              Originally posted by Colincbayley View Post
              Any advice? Other than a stiff brandy beforehand?
              Instruct the best chancery silk you can find at short notice who'll do the case for 20 Bensons and a lift home afterwards?
              Health Warning


              I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

              All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

              Comment


              • #8
                Originally posted by agent46 View Post
                Instruct the best chancery silk you can find at short notice who'll do the case for 20 Bensons and a lift home afterwards?
                Nice thought!

                Comment


                • #9
                  So if on the day of renewal of the AST in 2007, had the landlord handed back the original deposit, and the tenant then handed it to the landlord as a new deposit (for the same amount I assume), then the judgment would have been different?
                  I also post as Moderator2 when moderating

                  Comment


                  • #10
                    Originally posted by agent46 View Post
                    The TDS guidance doesn't have the force of law. The guidance does exactly what it says on the tin (ie: guides), and without appearing to crow about the matter, I've been arguing with anyone who would listen for the past year that the guidance was wrong for the same reasons relied on by the learned judge.

                    The judge appears, entirely correctly in my view, to have based her reasoning on the wording of s.213 and the meaning of the words "paid" and "received" and not on TDS guidance that was probably written by some departmental lackey lay-person civil servant on the orders of the Housing Minister.
                    Intresting discussion on the guidance there, however I didnt say the TDS guidance, I said the TDS scheme rules.

                    http://www.depositprotection.com/def...x?bhjs=1&fla=1 says;

                    Deposits taken before 6 April 2007 do not need to be protected by a scheme such as The DPS. However, as an existing tenancy is renewed and a landlord agrees a new fixed-term tenancy, the initial deposit taken must then be lodged with a tenancy deposit protection scheme.


                    http://www.mydeposits.co.uk/ says;

                    Do you take deposits from Tenants?
                    Do you use Assured Shorthold Tenancy (AST) agreements for your tenants?
                    Do you take a Deposit from your tenants?
                    Does the Tenancy Agreement start on or after 6th April 2007?
                    Is the property in England or Wales?
                    If you answer YES to all of these questions, your Tenant's deposit must be protected by a government-approved tenancy deposit scheme, such as mydeposits.


                    And http://www.thedisputeservice.co.uk/index.php?p=2 says;


                    Where pre-existing ASTs are formally extended or renewed after theMember
                    has joinedTDS,the newtenancy agreementmust include the relevant clauses
                    (please see section 16),unless the landlord has decided that the depositwill be
                    protected by another designated scheme.That tenancywill then be considered
                    a newtenancy for the purposes of adjudication under theTDS.




                    So on one hand we have the TDS guidance and three schemes saying one thing and a single judge saying another. I know where my money lies at the moment.

                    Comment


                    • #11
                      Originally posted by Planner View Post
                      Intresting discussion on the guidance there, however I didnt say the TDS guidance, I said the TDS scheme rules.


                      So on one hand we have the TDS guidance and three schemes saying one thing and a single judge saying another. I know where my money lies at the moment.
                      Well, first of all, force of numbers in support of an argument is never an indication of the correctness of that position. If you want an example, just remember that quite a few people attended the Nuremburg Rallies......

                      Re: rules/guidance: Sorry, you were talking about the TDS scheme rules, but that doesn't advance your argument at all. In fact, on the contrary, your position is significantly weakened because it means that as well as the Govt guidance being incorrect, the TDS rules are ultra vires, and thus invalid.

                      Why not just accept that the Govt and the TDS Schemes (who almost certainly acted on Govt guidance) have apparently got it a bit wrong? Given this Govt's obsession with legislating and their propensity for interference in more aspects of our lives than ever before, it's only natural that they're a bit busy and have seemingly forgotten to dot the "i"s and cross the "t"s of the HA 2004 s.213.

                      The Govt and their agencies make an unholy legal dog's breakfast of things all the time, and that is precisely why we have a system of Judicial Review under the jurisdiction of the administrative court; don't be too downhearted - it's not like you've discovered there's no such thing as Santa Claus or something.

                      EDIT 1: here's the relevant section of the Act - HA 2004 s.213(1) "Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

                      EDIT 2: I've just remembered something. From whom did "The Dispute Service" seek clarification of the legality of their rules relating to fixed term renewals? Did they perhaps seek advice from the Treasury Solicitor? Or did they instead take an opinion from learned counsel? No! In fact they asked that well-known organisation consisting of the finest legal minds in the UK, the National Association of Estate Agents!!!! I kid you not - I distinctly remember that the question about whether renewal deposits needed to be protected, until fairly recently used to be on the home page of the TDS website with the words "with thanks to the NAEA" underneath the answer.
                      Health Warning


                      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                      Comment


                      • #12
                        Originally posted by agent46 View Post
                        it's not like you've discovered there's no such thing as Santa Claus or something.
                        NOOOOOOOOOO
                        I also post as Moderator2 when moderating

                        Comment


                        • #13
                          Originally posted by agent46 View Post
                          it's not like you've discovered there's no such thing as Santa Claus or something.
                          Thanks, my six year old is crying now !!

                          Dear Santa,
                          We all know you are real, and in the nicest possible way, please let agent46 be wrong on this matter.
                          We all promise to be very, very good for the rest of the year.

                          Regards,
                          LLZ.

                          Comment


                          • #14
                            Well Im not got to base the scheme rules AND the government guidance being wrong on one county court outcome and your latin. That would be ridiculum and precox!!

                            Oh well it will all come out in the wash!!.

                            Agent, why we have you here there was a "discussion" on here a while a go where one of our respected members was insisting that it was impossible to take a landlord to court for non-complaince after the end of the AST. Putting aside the fact that we have knowledge of a judgement to the contary, whats your view? in particular I think it was this bit of the act;

                            214 Proceedings relating to tenancy deposits (1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—

                            Comment


                            • #15
                              Until this is sorted out, perhaps if you're not sure about your landlord ask for the deposit back and then pay it in regard to your new tenancy. If your landlord refuses one would wonder why.
                              ****************************************

                              If you are unsure about what to do seek professional Legal advice.

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X