Tenant sues landlord for x3 times deposit

[hillturn]

Hi,

I wonder if anybody could help me as I seem to be getting conflicting answers!

My tenant has been in my house since last October.

A deposit was taken but was not put into a scheme for 2 months, missing the 14 day date.

My tenant lost his job in December 2008 and said he couldn't afford the January rent. He said he was applying for housing benefit and I should get my money. Anyhow 2 months went by and no rent. I told him he'd have to leave if he didn't pay the arrears. Anyhow, the council agreed to pay just over a third of the rent monthly and he said he would pay us back. (We didn't worry because we had his deposit.) Anyhow, he hasn't been topping the rent up from the council and hasn't back paid what he owes. We sent him notice giving him 6 weeks to move. However, he didn't move and was ignoring our calls etc. We served an accelerated 14 day notice from the courts after the 6 weeks notice as stated in his contract.

The next day we get a letter from the courts stating he's suing us for x3 times the deposit plus interest.

Seeing as he owes us rent and refused to move out, I think this is a bit rich!


What are the chances of him successfully suing us (seeing as we registered 2 months late) and do you think we could defend ourselves, putting a counterclaim in?

Do you think it better to get a solicitor involved?

[Poppy]

Did you send the tenant the prescribed information at the time when the deposit was placed in a scheme?

[westminster]

A deposit was taken but was not put into a scheme for 2 months, missing the 14 day date.

.... we get a letter from the courts stating he's suing us for x3 times the deposit plus interest.

What are the chances of him successfully suing us (seeing as we registered 2 months late) and do you think we could defend ourselves, putting a counterclaim in?

Do you think it better to get a solicitor involved?

In addition to Poppy's question, a few more:
Which scheme is the deposit protected by?
What form has the claim been issued on - N1 or N208?
Is the T represented by a solicitor, and if so, do you know if he's receiving legal aid?

[jeffrey]

As deposit is protected, albeit late, T should fail in his claim for 3x.

[westminster]

As deposit is protected, albeit late, T should fail in his claim for 3x.

Yes, IF the prescribed information is/has been sent, and IF the LL has complied with the "initial requirements" of the scheme. The TDS, for example, require that a particular clause is included in the TA.

I've also read somewhere recently that one or other of the schemes is amending its rules so that protection within 14 days is one of the initial requirements, in order to close the 'loophole' under s.214.

[hillturn]

Thanks everyone for your replies/questions.

To answer Poppy, Yes I sent the tenant the information when I lodged the deposit. Apparently he can sign it, but it's not law. Anyhow never heard anything from him.

To answer Westminster, The form is N1, I think he's just gone to court himself and the deposit is registered with TDS.

Thanks for your help.

[westminster]

To answer Westminster, The form is N1, I think he's just gone to court himself and the deposit is registered with TDS.

Did you include the "clause G" required by TDS in the tenancy agreement?

N1 is the incorrect form for starting this claim. See
http://painsmith.wordpress.com/2009/...or-tds-claims/

What are the chances of him successfully suing us (seeing as we registered 2 months late) and do you think we could defend ourselves, putting a counterclaim in?

Late compliance with deposit protection is not cited in the statute as a reason for the 3x penalty to be applied (see s.214 of HA2004). The penalty applies only to 1) not protecting the deposit, 2) not providing the prescribed information, or 3) non-compliance with the "initial requirements" of the scheme. Here's the statute s.212-215:

http://www.opsi.gov.uk/ACTS/acts2004..._en_19#pt6-ch4

So check that you have complied with the "initial requirements" of the scheme, i.e. the TDS has the "clause G" requirement, but it may also have had a time limit for protecting the deposit at the time you protected it (rules may have changed since then - I don't know as they don't seem to give this info to non-members on their website).

Assuming you have complied with the initial requirements, then as you have both protected the deposit and provided the prescribed information (do you have proof of posting for the latter?) you have a strong case (but there's no guarantee you'll win. Different judges interpret the statute in different ways).

By all means issue a counter claim for the money owed by T.

Do you think it better to get a solicitor involved?

It depends. Courts don't seem to have fully woken up to the fact that s.214 claims should not be allocated to the small claims track, so even if you point this out on the allocation questionnaire (you will eventually receive this form asking you which track you think it appropriate for the claim), it may still end up in small claims, where your legal costs are not recoverable.

If you're prepared to do your homework, and get your head around the statute (and read all the threads on this forum about deposit claims - there are many) then you could defend this yourself in the small claims track. If it gets allocated to a different track, this would probably be the time to get a solicitor on board, as procedure gets more difficult, and you may need an advocate to represent you at the hearing. The tenant almost certainly does not realize the consequences if the claim goes to the Multi Track - he'll be faced with large court fees, for a start.

If you do involve a solicitor, make very sure they know this area of law. The average solicitor won't necessarily know the nuances of this particular statute (particularly as until recently most claims went via small claims) and therefore may be unable to properly argue your case - you'd be wasting your money.

BTW, what is the total value of the claim? Is it above or below £5K?

[hillturn]

Thank you very much, I'll have a look into clause G.

The amount is just under £5000.