My TDS Case Outcome!

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    #16
    section 213 (10)

    “relevant person” means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant

    This perhaps implies that you don't have to be the tenant at the time to make an application because the relevant person is never a tenant and no time limits are stated. Not overly clear though.

    These cases remind me of beta testing computer games in order to iron out all the faults.
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    If you are unsure about what to do seek professional Legal advice.

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      #17
      Yeah thats what I argued, wondered what Agent thought though cause he/she seems very familar with the legislation.

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        #18
        Originally posted by Planner View Post
        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—
        I'd agree with you there - a single District Judge coming to a conclusion on one side of the argument may be a bit of a false dawn. However, it is very interesting indeed that she used almost the exactly the same reasoning with which I have been boring everyone rigid for the past 12 months. I'm quite prepared to be proved wrong on the issue, but as yet, nobody has provided any arguments to the contrary other than "well the Govt guidance must be correct".

        On the other question - I've not looked into it in any detail, but I don't think the fact that the applicant would, strictly speaking, be a former tenant (rather than a tenant) would have any bearing on the issue. That would be an over-technical and casuistic line of argument and as such, probably wouldn't succeed (although I'm prepared to accept that it could possibly go the other way). An analogy would be cases where a tenant is evicted on s.21 grounds under APP (in which the LL cannot claim rent arrears), but the LL then brings debt proceedings for rent arrears, which the former tenant then successfully defends on disrepair grounds.

        I once tried to run a similar argument when defending a tenant in s.21 proceedings. The LL had served the tenant with the s.21 notice several days before the tenancy began and I submitted that the notice was invalid because HA 1988 s.21 states that the LL may give to the tenant 2 months notice etc and at the time the notice was served, the parties were not in a relationship of LL and tenant with respect to each other, as that relationship is a very special one defined by their repsective obligations following the transfer of an estate in land and when the notice was served, no such transfer had taken place. That defence did not succeed. The tenant was initially going to appeal, but they never did because, IIRC, they were rehoused by the local authority. The judge wasn't entirely clear why he had rejected the argument, but thinking about it now "on the fly", on the basis that the parties had entered into what amounted to a contract to create a lease, which, under the rule in Walsh v. Lonsdale would be treated as an equitable lease, they could be said to be in a relationship of landlord and tenant with each other. However, I later became aware of a County Court decision where the judge had approved precisely the defence I had unsuccessfully advanced (Turpitt v. Elizabeth August 1998 Legal Action 21, Edmonton County Court). So there you go - a bit different perhaps to the situation where the applicant is a former tenant, because I was considering a similar question arising before the lease began, but still, it shows that the courts are not that sympathetic to overly clever arguments on such matters.....

        On balance, I believe the tenant's right of action with respect to a claim for 3X the deposit would survive their giving up of possession of the premises.
        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.

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          #19
          Bad luck leigh, sorry that you didn't win your case. I guess everything went well apart from this paid and received wording technicality... thats something I hadnt even thought of to be honest!

          Going forwards with my case... I'm pretty similar, new tenancy June 2007 (not renewed, brand new), N208 claim, LL subsequently protected (10 months after receiving)... I have the Gloucester County Court case law... can I also use this case as well? With regards to the judges comments that you have listed (1, 2 and 3)? My LL has made the exact same complaints/defences - no LBA from us, and he has subsequently protected. Can I use these judges comments and quote this case to my advantage?

          How can I obtain paperwork for these 2 cases to support my hearing? Do you have the exact title of your case? xx v. xx etc....

          Cheers!

          Comment


            #20
            Originally posted by agent46 View Post
            I'd agree with you there - a single District Judge coming to a conclusion on one side of the argument may be a bit of a false dawn. However, it is very interesting indeed that she used almost the exactly the same reasoning with which I have been boring everyone rigid for the past 12 months. I'm quite prepared to be proved wrong on the issue, but as yet, nobody has provided any arguments to the contrary other than "well the Govt guidance must be correct".

            On the other question - I've not looked into it in any detail, but I don't think the fact that the applicant would, strictly speaking, be a former tenant (rather than a tenant) would have any bearing on the issue. That would be an over-technical and casuistic line of argument and as such, probably wouldn't succeed (although I'm prepared to accept that it could possibly go the other way). An analogy would be cases where a tenant is evicted on s.21 grounds under APP (in which the LL cannot claim rent arrears), but the LL then brings debt proceedings for rent arrears, which the former tenant then successfully defends on disrepair grounds.

            I once tried to run a similar argument when defending a tenant in s.21 proceedings. The LL had served the tenant with the s.21 notice several days before the tenancy began and I submitted that the notice was invalid because HA 1988 s.21 states that the LL may give to the tenant 2 months notice etc and at the time the notice was served, the parties were not in a relationship of LL and tenant with respect to each other, as that relationship is a very special one defined by their repsective obligations following the transfer of an estate in land and when the notice was served, no such transfer had taken place. That defence did not succeed. The tenant was initially going to appeal, but they never did because, IIRC, they were rehoused by the local authority. The judge wasn't entirely clear why he had rejected the argument, but thinking about it now "on the fly", on the basis that the parties had entered into what amounted to a contract to create a lease, which, under the rule in Walsh v. Lonsdale would be treated as an equitable lease, they could be said to be in a relationship of landlord and tenant with each other. However, I later became aware of a County Court decision where the judge had approved precisely the defence I had unsuccessfully advanced (Turpitt v. Elizabeth August 1998 Legal Action 21, Edmonton County Court). So there you go - a bit different perhaps to the situation where the applicant is a former tenant, because I was considering a similar question arising before the lease began, but still, it shows that the courts are not that sympathetic to overly clever arguments on such matters.....

            On balance, I believe the tenant's right of action with respect to a claim for 3X the deposit would survive their giving up of possession of the premises.
            Cheers agent. Your a very useful addition to the forum!

            Comment


              #21
              Originally posted by Planner View Post
              Cheers agent. Your a very useful addition to the forum!
              No problem.

              Thinking a bit further about it though, the million dollar question is - if the tenant's right of action can survive them giving up possession, when does their right of action expire?

              a) Is it, like an ordinary contractual debt action, limitation barred after 6 years?

              or

              b) Does the right of action end when the tenant accepts the return of the deposit, which implies that there is no dispute between the LL and the tenant relating to the deposit? If so, any subsequent proceedings issued by the tenant would probably be an abuse of process and would be struck out.

              If the right of action survived the tenant having received the refund of the deposit, then, as he no longer has the money in his possession, the LL would not be able to "remedial comply" by protecting the deposit retrospectively. As I've argued elsewhere in this forum, I think such remedial compliance is probably possible (as the penalty provisions in s.214 appear to disapply the time limits set out in s.213), but we won't know for certain until someone takes the point to appeal.

              My money is on (b), but I'm happy to be persuaded by arguments to the contrary.
              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


                #22
                Originally posted by Planner View Post
                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.
                She debated for a while over the 'paid and received' argument and to be honest I believe that because she was so unsure of what to do, having printouts of those sites and paragraphs you refer to could have made all the difference, but unfortunately this issue really wasn't something I had thought of as it seemed like it was a given considering the amount of publication regarding new tenancies with the initial deposit held on as security.

                Just to add another interesting point in the case (I'll request the transcript and post it up here ASAP):

                The judge said that she couldn't apply S214(4) without applying 214(3). This was not an issue for me because I'm still in tenancy but if I had moved out, got deposit back and was just going for x3 penalty, she said that this would not be possible because 214(3) wouldn't be able to be applied and 'unlock' 214(4). I think this is also incorrect!

                A question which someone might be able to answer - if I don't appeal this but say in 6 months there are 2 or 3 successful cases to refer to, is it possible to initiate a new claim based on the same parameters or is there a double jeopardy type thing to prevent it? I'm not sure that going back at this point with the multiple TDS guidance would be enough to change the interpretation of the 'paid and received' in the HA.

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                  #23
                  Originally posted by leigh123 View Post

                  The judge said that she couldn't apply S214(4) without applying 214(3). This was not an issue for me because I'm still in tenancy but if I had moved out, got deposit back and was just going for x3 penalty, she said that this would not be possible because 214(3) wouldn't be able to be applied and 'unlock' 214(4). I think this is also incorrect!
                  Thats is interesting. That would imply that even if TDS isnt complied with and court action is launched, as long as the deposit is returned in full before the court date then the landlord is in the clear and cant be stung for the x3 "compensation". To my mind whats the point of TDS. A landlord/agent might as well not protect the deposit until court action is started (if ever). That turns a pretty toothy piece of legislation into a worthless bit of paper!

                  Comment


                    #24
                    Originally posted by leigh123 View Post

                    A question which someone might be able to answer - if I don't appeal this but say in 6 months there are 2 or 3 successful cases to refer to, is it possible to initiate a new claim based on the same parameters or is there a double jeopardy type thing to prevent it? I'm not sure that going back at this point with the multiple TDS guidance would be enough to change the interpretation of the 'paid and received' in the HA.
                    If you want to appeal, you need to do so now. You won't be able to re-litigate the case if decisions in your favour are reported at a later date because the issue between you and your LL is (stand by for latin) res judicata (the thing is already judged) and any new claim based on the same facts would be struck out as an abuse of process.

                    Planner - I don't know whether you read my post in another thread where I had a crack at reasoning how a LL can avoid the 3X the deposit penalty on other grounds. http://www.landlordzone.co.uk/forums...8&postcount=19

                    The s.214(4) and s.213(3) comments are interesting. However, I'm not convinced by that line of argument, as it would completely defeat the purpose of the Act, unless of course the slightly more nuanced reasoning I employ in post # 19, above, applies. In which case, I'd suggest that if a LL tries to scupper a 3X the deposit claim by puportedly repaying the deposit, then the tenant should immediately return the money with a covering letter stating that there is still an outstanding dispute relating to the deposit.

                    Sorry to go on about it, but as I've been saying for ages, altogether, the HA 2004 (certainly the bits I've read and used) is an absolutely appallingly drafted piece of legislation.
                    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


                      #25
                      Originally posted by Planner View Post
                      Thats is interesting. That would imply that even if TDS isnt complied with and court action is launched, as long as the deposit is returned in full before the court date then the landlord is in the clear and cant be stung for the x3 "compensation". To my mind whats the point of TDS. A landlord/agent might as well not protect the deposit until court action is started (if ever). That turns a pretty toothy piece of legislation into a worthless bit of paper!

                      Surely the point is that the tenant would get their deposit back in full in these circumstances - even if they had left the property damaged or owed rent? I thought that was the point of the legislation, to stop unscrupulous landlords holding on to deposits? So the legislation would have worked even though the tenant doesn't get the 3x payout they may have liked.

                      Comment


                        #26
                        My TDS Case Outcome

                        Dear Leigh

                        I ahve a case going to Court and would be pleased to know to which Court your case went and the name of the Judge.If at all possible I would be most grateful to hear from you by 8 September?

                        Regards

                        swanman

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                          #27
                          My TDS case outcome: Member "Leigh 123"

                          Dear Leigh 123

                          This is a second reply sent straight after my previous one but I forgot to mention the "123" in your title! so I'm sending this in case i got your title wrong.
                          My ? is what was the name of the Court and the Judge who heard your case? If a reply can be sent ot me by 8 Sept I would be most grateful?

                          Swanman

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                            #28
                            Court reference

                            Does anyone know the case reference for this case?

                            Many thanks

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