Deposit protection claim/compensation - LPA Receivers

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  • Deposit protection claim/compensation - LPA Receivers

    My basic question is, who should/can I file a claim against to 1) get my deposit protected/repaid and 2) the 3 x compensation?

    1) The Landlord ("LL") - in the process of being liquidated (no assets)
    2) LPA-Receiver ("LPA-R")
    3) Either LL or LPA-R
    4) Both LL and LPA-R

    And, subsequently, is the LPA-R's defense that they have never received/claimed/transfered the deposit from LL relevant/valid?

    Background:

    1) Assured short hold tennancy signed September 2007, now periodical and I am still renting it

    2) LPA-R appointed in August 2008

    3) Despite numerous attempts from me, the tenant ("T"), to urge LPA-R to ensure deposit is salvaged/transfered from original landlord ("LL"), LPA-R made little effort to make this happen

    4) LL has now is in the proceess of being liquidated, thus little chances that they could either pay me the deposit back, or transfer it to LPA-R

    5) I have received a notice from mydeposit 6 months back that my deposit is "unprotected"

    6) LPA-R refuses to protect deposit as "it was never paid to them"


    My understanding is:

    1) LPA-R is acting as an agent to LL

    2) LPA-R has accepted the tenancy agreement as it was originally worded by effect having accepted my rent payment, which started in Septebmer 2008 and has been fully and timely paid ever since. As such, they are liable my deposit, as it is, incl amount, stated in the tenancy agreement.

    As such, I should be able to file a claim against LPA-R.As there is no point filing against LL, as being liquidated and there are no assets to distribute. Or should I still claim against LL? Or both?

    Is the LPA-R's argument that they have never received the deposit a relevant/valid defense? My thinking is that it isn't for two reasons:

    1) The LPA-R act as an agent of LL

    2) LPA-R had more than a year to affect a transfer of the deposit from LL to themselves. But did no/very little attempt to make it happen. And does it even matter given their "agency status"?

    Any court ruling in this area yet, or will this be a first?

  • westminster
    replied
    Originally posted by London Bridge View Post
    Failiures of LL and LPA-R have costed me my deposit, and there is no effective sanction against them.
    Unlike the LL's other creditors, you have the option of withholding the last month's rent as a means to get your deposit back.

    consequently my deposit has never had any legal protection.
    Well, it did originally. Mydeposits are the ones who cancelled the protection.

    The Tenant again draws the shortest straw.
    The law gives tenants a lot of protection. It's not the law's fault that the LL has gone bust.

    If you want to avoid anything like this happening again, rent via an ARLA/NAEA member letting agent as they keep client monies (including tenants' deposits) in a protected account.

    Leave a comment:


  • jeffrey
    replied
    Main differences:
    1. During fixed term: no s.21 possession rights, only s.8 possession rights.
    2. L cannot use g2- only L's mortgagee.
    3. Court's discretion is sometimes needed under g2 (but never under s.21).

    Leave a comment:


  • London Bridge
    replied
    So, again, what is the practical difference for me as tenant with a Section 21 and a Ground 2 for repossesing the property? Is it just down to LPA-R need to fill in another form?

    Why is it then deemed a sanction against LL's that do not protect the deposit that they cannot use Section 21 notice?

    It just sound like for me as a tenant there is no differnce. My deposit has no legal protection whatsoever in this situation. Failiures of LL and LPA-R have costed me my deposit, and there is no effective sanction against them, and consequently my deposit has never had any legal protection. The Tenant again draws the shortest straw.

    Leave a comment:


  • westminster
    replied
    Originally posted by London Bridge View Post
    I have note been warned within my tenancy agreement as far as I know.
    The court can still order possession if it is "satisfied that it is just and equitable to dispense with the requirement of notice".

    So the LPA-R cannot use Ground 2 notice then?
    Incorrect. They can use Ground 2.

    Does it meen LPA-R need to obtain a court order to gain possession/end the tenancy?
    If a tenant doesn't wish to leave, a landlord always has to obtain a court order for possession. He must first serve a s.8 notice (using the grounds in schedule 2) or a s.21 notice informing the tenant that he intends to apply for possession, and the basis on which he intends to apply for possession.

    Wouldn't that be more expensive to obtain (court fee, litigator/barrister fees) than just to agree to pay me back my deposit and have me agree to end the tenancy?
    Not necessarily. A barrister isn't necessary; many landlords represent themselves at s.8 hearings. The LPA-R may well have in-house staff who deal with possession procedure.

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  • jeffrey
    replied
    Originally posted by London Bridge View Post
    But it does tally, doesn't it?

    ....if court is satisfied.....

    Implies a court order, just as the link I provided states.

    Perhaps I misunderstand you, but I don't spot the difference with the text you provided and what's written in that link.
    In post #20's second paragraph, the bold wording reads and the the tenant warned about this contingency within the tenancy agreement.
    That's not what the Act says, is it, in paragraph (c) underlined in post #21? Even if T was not warned, the Court can decide to give L possession.

    Leave a comment:


  • London Bridge
    replied
    But it does tally, doesn't it?

    ....if court is satisfied.....

    Implies a court order, just as the link I provided states.

    Perhaps I misunderstand you, but I don't spot the difference with the text you provided and what's written in that link.

    Leave a comment:


  • jeffrey
    replied
    Still, that advice does not tally with the wording underlined in post #21. So is Parliament wrong, then?

    Leave a comment:


  • London Bridge
    replied
    Source:

    http://www.landlordzone.co.uk/ground...possession.htm

    Leave a comment:


  • London Bridge
    replied
    "County Court - Claims for Possession Procedures
    To gain possession of the property the landlord will need to complete the Form for Possession of Property N5 Form and the Particulars of Claim N119. If you also want to claim rent arrears you can provide details on the particulars of claim form.

    You should send or take your completed forms to the county court office in the district where the rental property is located. Once your completed forms are received at the court office, your case will be allocated a hearing date. For guidance, you should read the notes for claimant (rented residential premises) on the Court Service web site."

    Leave a comment:


  • jeffrey
    replied
    Originally posted by London Bridge View Post
    "The Housing Act 1988 as amended by the Housing Act 1996 lays down certain circumstances (grounds) under which a landlord may successfully apply to court for possession.

    Ground 2 - This ground is used by a mortgage wishing to gain vacant possession in order to exercise a power of sale. Notice will need to have been given to the tenant. The mortgage must have been taken out before the tenancy began and the the tenant warned about this contingency within the tenancy agreement."

    I have note been warned within my tenancy agreement as far as I know.

    So the LPA-R cannot use Ground 2 notice then? Does it meen LPA-R need to obtain a court order to gain possession/end the tenancy?

    And, either way, a court order is required?
    I do not know from where your quotation comes. A 'warning' might not be essential! Here's g2's actual text, with my added underlining for emphasis:

    The dwelling-house is subject to a mortgage granted before the beginning of the tenancy and:
    (a) the mortgagee is entitled to exercise a power of sale conferred on him by the mortgage or by section 101 of the Law of Property Act 1925; and
    (b) the mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power; and
    (c) either notice was given as mentioned in Ground 1 above or the court is satisfied that it is just and equitable to dispense with the requirement of notice;
    and for the purposes of this ground “mortgage” includes a charge and “mortgagee” shall be construed accordingly.

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  • London Bridge
    replied
    "The Housing Act 1988 as amended by the Housing Act 1996 lays down certain circumstances (grounds) under which a landlord may successfully apply to court for possession.

    Ground 2 - This ground is used by a mortgage wishing to gain vacant possession in order to exercise a power of sale. Notice will need to have been given to the tenant. The mortgage must have been taken out before the tenancy began and the the tenant warned about this contingency within the tenancy agreement."

    I have note been warned within my tenancy agreement as far as I know.

    So the LPA-R cannot use Ground 2 notice then? Does it meen LPA-R need to obtain a court order to gain possession/end the tenancy?

    And, either way, a court order is required? Wouldn't that be more expensive to obtain (court fee, litigator/barrister fees) than just to agree to pay me back my deposit and have me agree to end the tenancy?

    Leave a comment:


  • London Bridge
    replied
    Ok. Thanks.

    Does it need a court order? Or is it in effect "just another form"? For me as a tenant is there any practical difference relative to a Section 10 notice?

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  • westminster
    replied
    Originally posted by London Bridge View Post
    How will LPA-R be able to end my tenancy now?
    They can serve notice under Ground 2 of Schedule 2 of the Housing Act 1988.

    http://www.opsi.gov.uk/acts/acts1988...050_en_14#sch2

    Leave a comment:


  • London Bridge
    replied
    Given that my depsosit is not protected now LPA-R can not end the tenancy with a Section 21 notice, right? As I understand one of the santions for failing to protect the deposit is that Section 21 notice cannot be used, and that must surely apply in this case, right?

    This put the LPA-R in an akward situation as they would need end the tenancy to sell the flat, which they as LPA-R is ultimately mandated by the mortgage bank to do.

    How will LPA-R be able to end my tenancy now? Will they have to wait me out? And if so, why not agree to protect/pay back my deposit instead, despite it being lost by LL being liquidated and the mydeposit scheme has proven to be completely meaningless as a protection device in this instance.

    Leave a comment:

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