Failure to comply with the TDS

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    #46
    Westminister, thank you very much for your help and comments. I have taken on-board what you have said and made the relevant changes. I now understand a whole lot more about LL and T law that I never thought I would need to know so thank you for that.

    As to the tenancy agreement was a genuine mistake, every other tenancy agreement we have states the first/last month payment with no mention of a deposit we will provide these via the route to submit documents (we have T's that have older and newer AST's) to help prove our case of a genuine mistake.

    So, here we have the third draft:

    [edit] This shows the context of my defence but the formatting is lost when transferring it to the forum.

    It is agreed that the Claimant was a tenant and the Defendant was landlord in an assured shorthold tenancy entered into on XXXX 2008.

    At the time of the commencement of the tenancy it was agreed between the Claimant and the Defendant that the initial payment would consist of 1st months and Last months rent.
    It was clearly indicated that it would not be used in relation to any breach of tenancy condition or tenant liability and that is why it was entered onto the receipt as the first and last months rent as provided.

    The Defendant issued notice to quit to the Claimant on the XXXX 2009 with an expiry of XXXX 2009. Claimant vacated premises on the XXXX 2009 leaving arrears of £X - please note that this is not a claim for rent arrears.

    On the XXXX 2009 the Defendant received a summons which was issued on the XXXX 2009 that makes 2 claims:
    The first is for the sum of £XXX pursuant to section 214(4) Housing Act 2004. The second is for the return of their deposit of £XXX.


    Section 214(4) Housing Act 2004 Claim:
    This claim is denied.

    1)
    CPR Part 56.1(1)(f) states:
    56.1
    (1) In this Section of this Part ‘landlord and tenant claim’ means a claim under –
    (f) section 214 of the Housing Act 20046.
    (2) A practice direction may set out special provisions with regard to any particular category of landlord and tenant claim.

    And practice direction 56.2, paragraph 2.1 states that:
    “the claimant in a landlord and tenant claim must use the Part 8 procedure as modified by Part 56 and this practice direction”


    Therefore the Claimant is not entitled to bring this claim using Part 7 proceedings.


    2)
    The HM Court Guidelines, “Section 214” application to the county court, are very specific in stating that: (Point 4)
    "The application under section 214 can only be made on limited grounds."

    The Claimant has no grounds/cause of action as cited by section 214(1)(a):

    "that the initial requirements of an authorised scheme (see section 213(4) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or"

    Section 214(1)(b)

    "that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme"

    All grounds/cause of action have been wholly and completely fulfilled as shown by:
    1. The deposit being submitted and accepted into the government backed deposit scheme on 21st August 2009, therefore compliance with 213(4)
    2. The prescribed information was given via email on the 21st August 2009 and a certificate of compliance was sent on 28th August 2009, therefore compliance with 213(6)(a).

    3)
    In the following document:
    EXPLANATORY MEMORANDUM TO THE HOUSING (TENANCY DEPOSITS SCHEMES) ORDER 2007, 2007 No. 796 also states:

    in paragraph 81:
    "the Housing Act 2004 does not make it a requirement that all landlords take a
    deposit, only that, where they do, they protect those deposits in accordance with
    the legislation. Enforcement will be tenant-led, in that they will need to ask their
    landlord at the beginning of the tenancy how the landlord intends to protect their
    deposit, and ensuring after they have paid their deposit that it has been
    safeguarded by a tenancy deposit scheme."

    Notwithstanding the Claimant having been issued with the incorrect tenancy agreement, the Claimant knew that a deposit was not being taken, but it was in fact advance rent as mentioned previously which the Claimant understood and was happy about.

    in paragraph 83:
    "Where a tenant becomes aware that his deposit has not been safeguarded with an authorised
    scheme, or where the landlord has not provided the tenant with the prescribed information, the tenant can seek a court order requiring the landlord to comply with the Act. If a landlord has not complied with the Act by the time of a court hearing, the court can order him to pay to the tenant an amount equivalent to three times the deposit."

    The claim is further denied because the Claimant's deposit was protected prior to the hearing of these proceedings and the deposit was returned to the Claimant in full following the vacation of the property and not at the end of their tenancy on 12th October 2009.

    In these circumstances, a claim pursuant to section 214 Housing Act cannot succeed because the Court cannot make an Order pursuant to section 214 (3)(a) [to pay the deposit into an authorised scheme] or 214 (3)(b) [to refund the deposit to the tenants] and the making of an Order pursuant to section 214 (3)(a) or (b) is a pre-requisite for the making of an Order pursuant to section 214 (4).

    Please note that although the Claimant left with rent arrears of £x, , The Defendant has reimbursed the Claimant's deposit in full without any deductions. This was done as a gesture of goodwill and in recognition of the fact that, albeit inadvertently, the Defendant failed to protect the Claimant's deposit within 14 days of receiving it for reasons previously stated.

    To award the Claimant the sum of £XXX that the Claimant seeks, particularly in circumstances where the Claimant has suffered no detriment whatsoever, would be wholly disproportionate to the Defendant's default.

    Claim 2:
    Return of Deposit Claim
    This claim is also denied, because the Claimant's full deposit of £XXX was made available to them via the tenancy deposit scheme on 26th August 2009.

    Neither head of the Claimant's claim has any reasonable prospect of success. In addition, the Claimant is in breach of CPR Part 56 in having issued their claim using Part 7 proceedings. There is also no other compelling reason why the Claimant's claim should be heard at Trial. In all the circumstances, the Court is respectfully requested to dismiss the Claimant's claim at this juncture pursuant to CPR Part 24.2.

    Comment


      #47
      At the time of the commencement of the tenancy it was agreed between the Claimant and the Defendant that the initial payment would consist of 1st months and Last months rent.
      It was clearly indicated that it would not be used in relation to any breach of tenancy condition or tenant liability and that is why it was entered onto the receipt as the first and last months rent as provided.

      The Defendant issued notice to quit to the Claimant on the XXXX 2009 with an expiry of XXXX 2009. Claimant vacated premises on the XXXX 2009 leaving arrears of £X - please note that this is not a claim for rent arrears.
      You still haven't mentioned the tenancy agreement. I do appreciate that you've been thrown in at the legal deep end (!) but I don't know what else to say except to reiterate that you must come up with some explanation which involves acknowledging the fact that the TA states there was a deposit.

      Comment


        #48
        Here is the draft with additions made to account for the reasons for the incorrect tenancy agreement. Again, people can feel free to use this as a base letter if they so wish.
        Changes in red


        It is agreed that the Claimant was a tenant and the Defendant was landlord in an agreement entered into on 12th November 2008.


        The defendant's usual standard tenancy agreement reflects the 1st and last months payment, as shown by other agreements currently being used by tenants before and after the Claimant's agreement. The Claimants agreement was the template agreement used to create the defendants modified agreement. This oversight was brought to the attention of the defendant on 31st July 2009.


        At the time of the commencement of the tenancy it was agreed between the Claimant and the Defendant that the initial payment would consist of 1st months and Last months rent.
        It was clearly indicated that it would not be used in relation to any breach of tenancy condition or tenant liability and that is why it was entered onto the receipt as the first and last months rent as provided.


        The Defendant issued notice to quit to the Claimant on the 1st August 2009 with an expiry of 12th October 2009. Claimant vacated premises on the 23rd August 2009 having given notice on 22nd August 2009 leaving arrears of £XXXX - please note that this is not a claim for rent arrears.

        On the 24th August 2009 the Defendant received a summons which was issued on the 21st August 2009 that makes 2 claims:
        The first is for the sum of £XXX pursuant to section 214(4) Housing Act 2004. The second is for the return of their deposit of £XXX.


        Section 214(4) Housing Act 2004 Claim:
        This claim is denied.

        1)
        CPR Part 56.1(1)(f) states:

        56.1

        (1) In this Section of this Part ‘landlord and tenant claim’ means a claim under –

        (f) section 214 of the Housing Act 20046.

        (2) A practice direction may set out special provisions with regard to any particular category of landlord and tenant claim.

        And practice direction 56.2, paragraph 2.1 states that:
        “the claimant in a landlord and tenant claim must use the Part 8 procedure as modified by Part 56 and this practice direction”


        Therefore the Claimant is not entitled to bring this claim using Part 7 proceedings.


        2)
        The HM Court Guidelines, “Section 214” application to the county court, are very specific in stating thatPoint 4)
        "The application under section 214 can only be made on limited grounds."

        The Claimant has no grounds/cause of action as cited by section 214(1)(a):

        "that the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or"

        Section 214(1)(b)

        "that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme"

        All grounds/cause of action have been wholly and completely fulfilled as shown by:
        1. The deposit being submitted and accepted into the government backed deposit scheme on 21st August 2009, therefore compliance with 213(4)
        2. The prescribed information was given via email on the 21st August 2009 and a certificate of compliance was sent on 28th August 2009, therefore compliance with 213(6)(a).

        3)
        In the following document:
        EXPLANATORY MEMORANDUM TO THE HOUSING (TENANCY DEPOSITS SCHEMES) ORDER 2007, 2007 No. 796 also states:

        in paragraph 81:
        "the Housing Act 2004 does not make it a requirement that all landlords take a
        deposit, only that, where they do, they protect those deposits in accordance with
        the legislation. Enforcement will be tenant-led, in that they will need to ask their
        landlord at the beginning of the tenancy how the landlord intends to protect their
        deposit, and ensuring after they have paid their deposit that it has been
        safeguarded by a tenancy deposit scheme."

        Notwithstanding the Claimant having been issued with the incorrect tenancy agreement, the Claimant knew that a deposit was not being taken, but it was in fact advance rent as mentioned previously which the Claimant understood and was happy about.

        in paragraph 83:
        "Where a tenant becomes aware that his deposit has not been safeguarded with an authorised
        scheme, or where the landlord has not provided the tenant with the prescribed information, the tenant can seek a court order requiring the landlord to comply with the Act. If a landlord has not complied with the Act by the time of a court hearing, the court can order him to pay to the tenant an amount equivalent to three times the deposit."

        The claim is further denied because the Claimant's deposit was protected prior to the hearing of these proceedings and the deposit was returned to the Claimant in full following the vacation of the property and not at the end of their tenancy on 12th October 2009.

        In these circumstances, a claim pursuant to section 214 Housing Act cannot succeed because the Court cannot make an Order pursuant to section 214 (3)(a) [to pay the deposit into an authorised scheme] or 214 (3)(b) [to refund the deposit to the tenants] and the making of an Order pursuant to section 214 (3)(a) or (b) is a pre-requisite for the making of an Order pursuant to section 214 (4).

        Please note that although the Claimant left with rent arrears of £XXXX , the Defendant has reimbursed the Claimant's deposit in full without any deductions. This was done as a gesture of goodwill and in recognition of the fact that, albeit inadvertently, the Defendant failed to protect the Claimant's deposit within 14 days of receiving it for reasons previously stated.

        To award the Claimant the sum of £XXXX that the Claimant seeks, particularly in circumstances where the Claimant has suffered no detriment whatsoever, would be wholly disproportionate to the Defendant's default.

        Claim 2:
        Return of Deposit Claim
        This claim is also denied, because the Claimant's full deposit of £XXXX was made available to them via the tenancy deposit scheme on 26th August 2009.

        As the Claimant is in breach of CPR Part 56 in having issued their claim using Part 7 proceedings and there are no grounds/cause of action there is no compelling reason why the Claimant's claim should be heard at trial. In all the circumstances, the Court is respectfully requested to dismiss the Claimant's claim at this juncture pursuant to CPR Part 24.2.
        Thanks

        ice.

        Comment


          #49
          Well, after much fretting, the court case happened today and...WE WON!!

          My partner did not even have to say anything at all due to the appeal case that occurred on the 25th January 2010 in the high court, so it is now binding!!

          Summary: If you do not put the deposit into a scheme within 14 days and the T takes you to court, so long as you put the deposit into a scheme by the time you go to court, you will only be liable for the court costs up to the time the deposit is put into the scheme.

          Not sure if this is public knowledge, so will post here and as a separate thread as it will probably be lost:

          High Court of appeal:

          Neutral Citation Number: [2010] EWHC 217 (QB)

          Case Number: IHQ/09/1118

          Thanks

          ice.

          Comment


            #50
            Yes. LZ has sixteen threads mentioning the Draycott v. Hannells decision to which you refer.
            Search under 'Draycott' for them.
            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).

            Comment


              #51
              Thanks for letting us know the outcome, and congrats!

              Comment

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