N208 - Submitting and Nervous!

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  • N208 - Submitting and Nervous!

    Hi there.

    I'm going to submit my N208 for non-compliance of the TDS on Wednesday, but just wanted some last minute assurance that I do actually have a case and am doing the right thing. Not having a solicitor is nerve racking as I'm not all that legally minded!

    Details are:

    1) Rent is < 25,000 and its an AST signed Jan 2008, moved out Jan 2009 so qualifies.
    2) Deposit wasnt protected and only after a month of being ignored and finally an LBA did we receive almost all of our deposit back, all except a small amount.
    3) He wont give us receipts for the deducted amount, so we believe we have fair reason to dispute this. But given this is an absolute claim we feel this is irrelavent.
    4) He has threatened that there are damages on the inventory that he is willing to forgo for the sake of closure and will counterclaim against these. There were no damages, and we think he is trying to scare us.

    Evidence to support claim: Tenancy Agreement, 3 letters from TDS's proving non-compliance. Guidance notes from HMCS. Receipt of paid deposit. Ignored emails chasing return of deposit. LBA.

    One question... the Tenancy Agreement for evidence isnt signed (it was off a pdf on my computer that was easier to print) but I have the signed original should it go to court... is this ok?

    Also, we are no longer tenants... possibly an issue?

    Should I go ahead with it? All comments good and bad welcome!

  • #2
    Originally posted by awt19 View Post
    Hi there.

    I'm going to submit my N208 for non-compliance of the TDS on Wednesday, but just wanted some last minute assurance that I do actually have a case and am doing the right thing. Not having a solicitor is nerve racking as I'm not all that legally minded!

    Details are:

    1) Rent is < 25,000 and its an AST signed Jan 2008, moved out Jan 2009 so qualifies.
    2) Deposit wasnt protected and only after a month of being ignored and finally an LBA did we receive almost all of our deposit back, all except a small amount.
    3) He wont give us receipts for the deducted amount, so we believe we have fair reason to dispute this. But given this is an absolute claim we feel this is irrelavent.
    4) He has threatened that there are damages on the inventory that he is willing to forgo for the sake of closure and will counterclaim against these. There were no damages, and we think he is trying to scare us.

    Evidence to support claim: Tenancy Agreement, 3 letters from TDS's proving non-compliance. Guidance notes from HMCS. Receipt of paid deposit. Ignored emails chasing return of deposit. LBA.

    One question... the Tenancy Agreement for evidence isnt signed (it was off a pdf on my computer that was easier to print) but I have the signed original should it go to court... is this ok?

    Also, we are no longer tenants... possibly an issue?

    Should I go ahead with it? All comments good and bad welcome!
    How much of your deposit has your landlord kept?

    It is not an issue that you are no longer tenants, but it may well be significant that you have had most of your deposit back, since the protection rules exist to ensure Ts get their deposits back...and that principle has been adhered to, hasn't it? Why are you claiming for the 3x - or have I misunderstood something here?
    '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

    Comment


    • #3
      Originally posted by mind the gap View Post
      How much of your deposit has your landlord kept?

      It is not an issue that you are no longer tenants, but it may well be significant that you have had most of your deposit back, since the protection rules exist to ensure Ts get their deposits back...and that principle has been adhered to, hasn't it? Why are you claiming for the 3x - or have I misunderstood something here?
      Thanks mind the gap, I appreciate your feedback.

      The landlord has retained 100, and although I appreciate this is only a small amount, tecnically we havent got our full deposit back and so I dont think the principal has been adhered to. We're claiming the 3x because we had significant difficulty getting the deposit back from the landlord, including a month of emailling and calling and getting ignored and we feel this is the kind of behavior the TDS is designed to prevent. We dont think tenants should have to stress as we did over the return of our deposit. We also havent been given a chance to dispute the deduction (even though its small), and feel we this important right hasnt been afforded to us.

      I do see your point that a judge may see the case as closed, however the claim is absolute isnt it? So the amount of the deduction is irrelavent isnt it? So you dont think we should go ahead with it?

      Thanks again.

      Comment


      • #4
        Originally posted by awt19 View Post
        Thanks mind the gap, I appreciate your feedback.

        The landlord has retained 100, and although I appreciate this is only a small amount, tecnically we havent got our full deposit back and so I dont think the principal hasnt been adhered to. We're claiming the 3x because we had significant difficulty getting the deposit back from the landlord, including a month of emailling and calling and getting ignored and we feel this is the kind of behavior the TDS is designed to prevent. We dont think tenants should have to stress as we did over the return of our deposit. We also havent been given a chance to dispute the deduction (even though its small), and feel we this important right hasnt been afforded to us.

        I do see your point that a judge may see the case as closed, however the claim is absolute isnt it? So the amount of the deduction is irrelavent isnt it? So you dont think we should go ahead with it?
        I understand what you are saying about the principle of it and I agree that you should not have had to go through that much grief to get back what you have got back. (However...instead of spending a month emailing etc, you could have just sent him one Letter Before Action, demanding return of whole deposit within 7 days or you would press 'send' on your 3x claim. That usually works).

        As to whether you should proceed or not, I don't honestly know. How much will it cost you if it fails? If you stand to lose a lot in costs, I would certainly advise paying a housing law solicitor for a consultation, just to make sure you don't throw good money after bad.
        '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

        Comment


        • #5
          Originally posted by mind the gap View Post
          I understand what you are saying about the principle of it and I agree that you should not have had to go through that much grief to get back what you have got back. (However...instead of spending a month emailing etc, you could have just sent him one Letter Before Action, demanding return of whole deposit within 7 days or you would press 'send' on your 3x claim. That usually works).

          As to whether you should proceed or not, I don't honestly know. How much will it cost you if it fails? If you stand to lose a lot in costs, I would certianly advise paying a housing law solicitor for a consultation just to make sure you don't throw good money after bad.
          Hindsight is a beautiful thing I wasnt aware of any of this stuff when we moved out, and am not the most legal person, so wasnt sure how to deal with it. As it was, we send him an LBA after a month, and we then received the amount received within 2 days, so you are right, we should have done that at the start and saved alot of stress.

          We would stand to pay his solicitors costs if we lose, which I guess could be upwards of 2k. I've had advice from the CAB, who said to go ahead, and I had a 1 hour session with a solicitor who sent the LBA. His words were that the only defence the LL has is to prove he protected the money, which clearly he is unable to do. He also suggested that we take the case to court ourselves as it was quite straight fowards, and he wouldnt be adding alot unless it became a debate around a piece of law. But he also said that 9 times out of 10 these get settled outside of court. So I think we have it covered, bar a few nerves!

          Comment


          • #6
            Originally posted by awt19 View Post
            Hindsight is a beautiful thing I wasnt aware of any of this stuff when we moved out, and am not the most legal person, so wasnt sure how to deal with it. As it was, we send him an LBA after a month, and we then received the amount received within 2 days, so you are right, we should have done that at the start and saved alot of stress.

            We would stand to pay his solicitors costs if we lose, which I guess could be upwards of 2k. I've had advice from the CAB, who said to go ahead, and I had a 1 hour session with a solicitor who sent the LBA. His words were that the only defence the LL has is to prove he protected the money, which clearly he is unable to do. He also suggested that we take the case to court ourselves as it was quite straight fowards, and he wouldnt be adding alot unless it became a debate around a piece of law. But he also said that 9 times out of 10 these get settled outside of court. So I think we have it covered, bar a few nerves!

            Well - good luck. The experience of people who have posted on this forum is that judges have awarded the 3x penalty for LLs who haven't protected at all (as you would expect); a few have awarded the penalty against LLs who have protected late; but I've not heard of any where LL has been whopped when he has returned the deposit either in full, or partially. Notwithstanding I can see that there is still £100 of your deposit which has neither been protected nor returned, so I would be very interested to see how it goes. Good luck.
            '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

            Comment


            • #7
              Originally posted by awt19 View Post
              One question... the Tenancy Agreement for evidence isnt signed (it was off a pdf on my computer that was easier to print) but I have the signed original should it go to court... is this ok?
              Thanks. Fingers crossed and all that. Any view on the above question?

              Comment


              • #8
                I do not think you will be liable for the other side's solicitor's costs if you lose but I may be wrong. I thought that in small claims legal costs are rarely awarded. Anyone know for sure?
                Unshackled by the chains of idle vanity, A modest manatee, that's me

                Comment


                • #9
                  Regarding costs what is the value of the claim? If it is below £5k then unless LL has a contractual provision for you to pay his costs then the usual small claims court rules apply and normally no costs are awarded.

                  If the dispute is above £5k then usual rule is loser pays the winners costs so why not use the solicitor who previously advised you.

                  I doubt the fact that the TA is not signed will make a major difference. It is likely that both LL and T understood the terms on which the TA would operate, the TA is evidence of this.

                  edit - Islandgirl is correct re costs
                  Last edited by Paul Gibbs; 24-03-2009, 08:31 AM. Reason: Islandgirl beat me to it!!
                  PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                  Comment


                  • #10
                    Am i missing something here?

                    The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.

                    Comment


                    • #11
                      Originally posted by johnboy View Post
                      Am i missing something here?

                      The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.
                      No the rent is < £25 [see #1]. (< means 'less than'.)
                      '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

                      Comment


                      • #12
                        Originally posted by johnboy View Post
                        Am i missing something here?

                        The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.
                        Rent is < (less than) 25k

                        Deposit was just over £2k so above the amount allowed for the small claims court. I was worried that if I lost, I would have to pay my own solicitors costs as well... which could be doubly painful if I have to pay his...

                        But maybe I should just bite the bullet....

                        Comment


                        • #13
                          awt19 - I have just claimed £5000 through small claims (moneyclaim online) and no costs payable to the other side...
                          Unshackled by the chains of idle vanity, A modest manatee, that's me

                          Comment


                          • #14
                            but he is claiming 3x the deposit. You could have caped the claim at £5,000 to avoid any adverse costs order
                            PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                            Comment


                            • #15
                              Originally posted by Paul Gibbs View Post
                              Regarding costs what is the value of the claim? If it is below £5k then unless LL has a contractual provision for you to pay his costs then the usual small claims court rules apply and normally no costs are awarded.

                              If the dispute is above £5k then usual rule is loser pays the winners costs so why not use the solicitor who previously advised you.

                              I doubt the fact that the TA is not signed will make a major difference. It is likely that both LL and T understood the terms on which the TA would operate, the TA is evidence of this.

                              edit - Islandgirl is correct re costs
                              Just concerned that if we lose, we'll be doubley hurt as we will have to pay own solicitors costs as well... and not sure how much he will add as it seems like a straight forward case, and I'm confident I can put the facts across as they stand.... or am I missing something?


                              Originally posted by johnboy View Post
                              Am i missing something here?

                              The rent is 25k pa if that is the case a ast shouldnt have been used and therefore the deposit didnt need to be protected.
                              Rent was < 25k (less than!) So qualifies!

                              Comment

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