TDS non compliance and forgery

[AlfredD.]

Hi,

I know this is completely bizarre. I moved out of a rented property at the end of last year. I received no deposit back from my LandLord with no explanation. Our contract stated that we paid a deposit and that it would be protected. I checked with all 3 schemes, found our deposit was not protected, and after she ignored my warning letter I began court proceedings, suing her for non compliance with the TDS etc.

She has since come back with a counter claim, for supposed damage to her property (we signed no inventory on moving in so not sure how that one will work) and has produced a tenancy agreement that neither me nor my husband have ever seen before. His signature has been forged at the bottom, it is witnessed by one of her in laws (I think), that we have never met and, most importantly, this new "contract" states that we paid two months rent in advance and not a deposit.

She claims she asked me to destroy our original one as she wasn't happy with my guarantor (who signed it in her presence and was the guarantor throughout our tenancy).

I am flabbergasted. I assume she is desperate to avoid the penalty for non compliance. Anyone got any thoughts on this? All I want is my flipping deposit back but we seem to have strayed into a very dark area.

[westminster]

it is witnessed by one of her in laws (I think), that we have never met and, most importantly, this new "contract" states that we paid two months rent in advance and not a deposit.

Aside from the fact that the document is forged, this isn't going to work as a defence unless all the money you paid has been set against rent and the landlord isn't holding some back (which she is). It makes no difference what name this money is given, it is still money held as security against the tenancy - see the definition of 'deposit' in s.212(8) Housing Act 2004.
http://www.opsi.gov.uk/ACTS/acts2004..._en_19#pt6-ch4

Note that tenancy contracts do not have to be witnessed.

She has since come back with a counter claim, for supposed damage to her property (we signed no inventory on moving in so not sure how that one will work)

It won't, if she has no evidence of the original condition of the property.

She claims she asked me to destroy our original one as she wasn't happy with my guarantor (who signed it in her presence and was the guarantor throughout our tenancy).

Make it clear that you deny everything, point by point, in your defence to the counterclaim.

The landlady sounds very stupid, not least for trying to fool the court with a forged document, and when she is questioned in court most likely she will trip herself up; but, in the unlikely event that the court believes her story, the so-called advance rent is still a deposit under the definition of the Act.

In short, her defence is really hopeless; I assume she's not using a solicitor?

I am flabbergasted. I assume she is desperate to avoid the penalty for non compliance. Anyone got any thoughts on this?

It's fairly common for people to lie outrageously in their defence/counterclaim, so don't be flabbergasted.

Did you issue your claim on Form N208? See this link.

There was a high court case, Draycott v Hannells, in February (see link) which ruled that the 3x deposit sanction does not apply for late protection with the DPS. But earlier this month two further deposit cases went to the court of appeal (see link). These may or may not overturn Draycott v Hannells - we don't know as the rulings haven't been published yet.

I mention this because it is currently uncertain as to whether or how landlords may avoid the sanction by means of late protection. Not that this is your landlady's defence, but it's faintly possible she'll hear of it before your case is heard, so you should at least be aware of it.

[Paul Gibbs]

You should make it clear in your defence to counterclaim that it is denied you signed that agreement.

Write to LL explaining that you are intending to ask for permission for a handwriting expert to inspect the document. Also explain that subject to confirmation from the handwriting expert you will be reporting this to the Police.

[dominic]

This is an attempt to pervert the course of justice, and you should be forthright in your assertions that the document produced by the LL has not been signed by the tenant.

[property mongrel]

Have you seen the forged contract?

Do you have a copy or has the LL lodged a copy with the court?

There are a number of possible criminal offences that your X LL may have committed depending on what stage you are at in the proceedings.

You are not the police and if you are going to investigate this matter you need to do things in a certain order so that you do not give the X LL a chance to get away with committing more offences and getting off with the offences they may have committed already. Can you do that?

I would not tell the LL that you are going to go to a handwriting expert or reporting to the police. The former will cost you money and it is a job that the police are better suited too. Also if you alert the X LL to the fact that the forged document will be scrutinised they might destroy it.

At the moment on the facts presented your X LL has committed an offence of making a false instrument. Using the false instrument or producing it to a court are other offences, perverting the course of justice and if giving in evidence on oath, perjury. You have waited 6 months and seen how your X LL will resort to all sorts to keep your money, can you anticipate and deal with the next twist?

I would tell the court in writing all about what you know about the forged "contract", stick to the facts and keep it short. I would also report this matter to the police. Tell them exactly what you know for fact. This is not a civil matter. This is a criminal matter now. You can quote the Forgery & Counterfeiting Act 1981. Plenty of other threads on forgery recently, there seems to be a lot about.

But, it is up to you.

pm