Deposit protection rules- why no criminal sanctions?

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    Deposit protection rules- why no criminal sanctions?

    Can anyone explain to me why a tenant could bring civil proceedings for 3 x deposit? Why should the landlord not be prosecuted in a magistrate's court with the fine going into government funds?

    Why does the ruling only apply to ASTs with max yearly rental of 25K which would exlude many London properties? Does a tenant on a high salary paying a rent of say 2100 pcm not deserve deposit protection? Is ruling to exlude wealthy landlords (possibly MPs or those living in their pockets)?

    #2
    Now, that's just cynical!

    ...I see your point about how the penalty might be imposed and where the money should go, but I'm not sure about the exemption for higher rents. I've wondered about that, too. Perhaps the hoi polloi are deemed to need their desposit money back more than the relatively affluent? However, the deposit would be proprtionately higher for a high-rental property, so more money at stake...there again, perhaps the rich don't trash their flats on the same scale as the poor, so there are fewer deposit disputes anyway (and thus less need to protect)? Just guessing!
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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      #3
      Originally posted by mind the gap View Post
      ...there again, perhaps the rich don't trash their flats on the same scale as the poor, so there are fewer deposit disputes ...
      They just have bigger pads in which to grow their cannabis plants
      On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

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        #4
        Originally posted by John Duff View Post
        Can anyone explain to me why a tenant could bring civil proceedings for 3 x deposit? Why should the landlord not be prosecuted in a magistrate's court with the fine going into government funds?
        Simple. Civil cases demand a rather lower standard of proof ("balance of probabilities") than criminal cases ("beyond reasonable doubt").
        So, by imposing only a civil penalty, it's easier for T to win.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
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          #5
          Originally posted by jeffrey View Post
          Simple. Civil cases demand a rather lower standard of proof ("balance of probabilities") than criminal cases ("beyond reasonable doubt").
          So, by imposing only a civil penalty, it's easier for T to win.
          Except that it's not, since the drafting of the law is so useless as to defy clear interpretation; and as some LLs have demonstrated, they can, with impunity, just sneak off and protect the deposit late, as long as it's in a scheme before they are hauled before a judge.
          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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            #6
            Originally posted by mind the gap View Post
            Except that it's not, since the drafting of the law is so useless as to defy clear interpretation; and as some LLs have demonstrated, they can, with impunity, just sneak off and protect the deposit late, as long as it's in a scheme before they are hauled before a judge.
            It's nonetheless still easier in a civil case than if it were in a criminal case.
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

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              #7
              Originally posted by mind the gap View Post
              Except that it's not, since the drafting of the law is so useless as to defy clear interpretation; and as some LLs have demonstrated, they can, with impunity, just sneak off and protect the deposit late, as long as it's in a scheme before they are hauled before a judge.

              Yeah but I suppose the pupose of TDS is for the tanant's deposit to be protected and returned fairly.
              The emphisis shouldn't really be put on the penantly. As long as the deposit is protected, LL has complied to the Law (either by stick or carrot)

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                #8
                Originally posted by jeffrey View Post
                Simple. Civil cases demand a rather lower standard of proof ("balance of probabilities") than criminal cases ("beyond reasonable doubt").
                So, by imposing only a civil penalty, it's easier for T to win.
                With respect to non-protection of the deposit, given that the production of a certificate or an examination of the records of the relevant provider settles the matter, I'd suggest that it would be just as easy to prove that element TDP non-compliance beyond reasonable doubt as it would to prove it on the balance of probablities.
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                  #9
                  Hmm. What about the mens rea of such a criminal offence?
                  JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                  1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                  2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                  3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                  4. *- Contact info: click on my name (blue-highlight link).

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                    #10
                    Originally posted by jeffrey View Post
                    Hmm. What about the mens rea of such a criminal offence?
                    Just make it a strict liability offence, like selling alcohol to minors!

                    I hesitate to suggest that bringing in criminal sanctions is a good idea. The problem is though that a detailed examination of the deposit protection provisions seems to show that the sanctions available under the civil law are not available unless a landlord fails to protect a deposit after proceedings have been issued, rather than for a simple failure to comply with the requirements as set out.

                    I have come up with a bright idea! There should be a requirement that a landlord cannot take a deposit unless he provides a deposit of an equal amount to cover breaches of his obligations.

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                      #11
                      Originally posted by Lawcruncher View Post
                      I have come up with a bright idea! There should be a requirement that a landlord cannot take a deposit unless he provides a deposit of an equal amount to cover breaches of his obligations.
                      And that deposit would be protected by...?!
                      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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