Deposit not in a protection scheme - what now?

[eternal_tenant]

Hi there,

I've recently moved out of a rented flat. I began the tenancy in Feb 2007, then renewed tenancy in Sept 2008 signing a complete new tenancy agreement under joint names with my then new flat mate. As I understand it, the new tenancy agreement means that the deposit should be placed in a deposit protection scheme.

I've checked with the 3 deposit protection schemes listed on direct.gov.uk and have emails from all to say the deposit is not in one of their schemes.

The former landlord has pushed me to take these investigative steps, after charging me 80% of the costs to recarpet the whole flat, when really the flat was left in a very good condition. I sought the name of the TDS in order to take the dispute further.

When I asked recently if the deposit was in a scheme the landlord assured me that it was, but hasn't provided any details. He has many properties and is a professional landlord, so I can't imagine why he would take this risk.

Since finding out the information from the 3 TDS' above, I left a message & an email with my landlord stating that we should reconsider the approach to how my deposit is returned in order to avoid court action, but I have had no response. I cannot get an answer on his phone.

I feel that my only option now is to begin court proceedings, following a letter before action.

Question 1: What angle should I take? Do I:

1. Go for broke - hit him for the full 3x penalty + full deposit back straight away?
2. Just pursue for the original deposit back

Question 2: Would the landlord be able to complicate the case by bringing the cost of replacing the carpets into it? Or would that be for a separate court case? There was a mark on one of the carpets when I left, but I consider it to be very minor. I certainly shouldn't be paying 80% of the cost, although I wouldn't blame him for asking for some kind of contribution on the one room.

Question 3: Is the case of an unprotected deposit pretty open & shut, or will I need the help of a solicitor?

Thanks,
Chris

[Snorkerz]

Q1. & 3 - the 3x deposit situation is quite risky for a tenant as there are (at present) easy ways for a landlord to avoid it. It is not dealt with in the small claims track, so you could be liable for some of the landlords legal fees (that's a could, not a would). As it's not small claims, you would probably want to employ a solicitor.

Claiming the deposit only is easy - you can do it via www.moneyclaim.gov.uk. It is quite simple and not extremely expensive. There will be books in your local library (or Amazon) to guide you through the process.

Q2. The LL can counterclaim for any damages he thinks are reasonable - BUT... He will have to prove the condition of the damaged carpet at the start of the tenancy (Sept 08), and I suspect he didn't take an inventory then. Even if he did, and you had totally trashed the carpet, I wouldn't expect him to be awarded more than 40-50% of the carpet value, presuming it was new when you first moved in in Feb 07.

You are welcome to use this letter before action if you like

[eternal_tenant]

Thanks Snorkerz - there's some food for thought there. Not as easy as I thought then!

Q1. & 3 - the 3x deposit situation is quite risky for a tenant as there are (at present) easy ways for a landlord to avoid it.

I read about some cases in the high court being held this month that may provide some landmark rulings in respect of the 2004 Act. Hopefully this will help bring a fair balance back to situations such as mine.

Out of interest, how can landlords avoid the 3x deposit situation?

Thanks again,
Chris

[thevaliant]

They avoid it by protecting the deposit! Making it easier for you to get it back therefore.

Snorkerz advice is solid, though I would add that one thing you could do is fill out the claim form BUT don't sign or submit it, and include that in your letter before action, adding that if no happy conclusion is reached, this will be signed and submitted.

[Snorkerz]

I read about some cases in the high court being held this month that may provide some landmark rulings in respect of the 2004 Act. Hopefully this will help bring a fair balance back to situations such as mine.

Quite right - hence my comment about "at present".

Out of interest, how can landlords avoid the 3x deposit situation?

If the deposit is either protected with DPS or returned to the tenant before the court hearing, the 3x would not apply. It hinges on the fact that the legislation does not provide for a penalty for late protection, just for non-protection.