suing landlord for deposit protection scheme if leaving flat soon...

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    suing landlord for deposit protection scheme if leaving flat soon...

    hi there,

    I'm planning on suing my landlord for not entering my deposit into a protection scheme. However, I may be moving out of the property mid March. Is this too short a time for a court decision do you think?

    I might stay in flat one month longer if it means I can get my deposit back. I've found lots of info on deposit protection scheme in general but not;

    a) how long process takes
    b) if I can still be awarded money by court if I have moved out by the time of the county court hearing.

    any info appreciated!

    #2
    If the landlord still holds the deposit, then the claim will succeed.

    However, how much have you investigated the court process with regard to companion for non-compliance? Do you know that it can't be heard in 'small claims'? Do you know what that means with regards to costs? Do you know how easy it is for your landlord to sidestep the issue?

    The answers to your specific questions are:
    a) months and months (HM Court Service is horrifically overburdened)
    b) yes

    Comment


      #3
      Originally posted by Snorkerz View Post
      Do you know that it can't be heard in 'small claims'? Do you know what that means with regards to costs? Do you know how easy it is for your landlord to sidestep the issue?

      The answers to your specific questions are:
      a) months and months (HM Court Service is horrifically overburdened)
      b) yes
      thanks for reply.

      The Courts website says that Small Claims constitutes anything less than £5000 so why can I not use it?

      And what way is there for the landlord to sidestep it? The legislation seems crystal clear...

      Comment


        #4
        Deposit Protection claims are conducted through something called a Part 8 procedure. The name derives from the part of the Civil Procedure Rules (CPR, not to be confused with the thing that saves people's lives, rather than risks boring them to death) dealing with such claims. Usually you commence a claim using the procedure set down in Part 7 of the CPR, Part 8 is for more 'specialist' claims. For some reason the powers that be have decided deposit protection claims will be heard under Part 8. Though, confusingly, if you just want the deposit back and aren't too worried about the 3x penalty you can sue for breach of contract under Part 7 and thus use the small claims track.

        The consequences of not using the small claims track are that may have to pay the landlord's costs if you lose. This includes their legal fees and can be quite a substantial sum.

        The reason the legislation is easy to sidestep is because it makes clear that the deposit must be protected but it doesn't actually say when it must be protected. A recent Court of Appeals decision held that the landlord could protect the deposit at any time before a court hearing (even outside the courtroom doors) and would not have to pay the penalty (though the landlord would have to pay the tenant's costs provided the tenant had complied with the correct pre-action steps). An even more recent High Court decision distinguishes the Court of Appeal case because the tenancy had already ended without the landlord returning the deposit. The Supreme Court may yet take the appeal in either case and reverse the lower courts.

        In summary, this area of law is a mess. You are unlikely ever to see 3x your deposit because your landlord has not acted correctly. Do you have any grounds for thinking your landlord will actually steal some or all of your deposit?
        Disclaimer:

        The above represents my own opinion, derived from personal knowledge and should not be relied upon as definitive or accurate advice. It is offered free of charge and may contain errors or omissions or be an inaccurate opinion of the law. I accept no liability for any loss or damage suffered as a result of relying on the above.

        Comment


          #5
          Originally posted by AlritePedro View Post
          thanks for reply.

          The Courts website says that Small Claims constitutes anything less than £5000 so why can I not use it?
          Because the court service has decided that deposit non-protection cases are what is called a 'part 8' claim. http://www.hmcourts-service.gov.uk/d...pplication.pdf. You can use 'small claims' if all you want is to get your deposit back - this may help: http://tenancyanswers.ucoz.com/index..._protected/0-4

          And what way is there for the landlord to sidestep it? The legislation seems crystal clear...
          The moment the landlord either protects it or refunds it to you, you have no claim.

          Comment


            #6
            Originally posted by bhaal View Post
            Do you have any grounds for thinking your landlord will actually steal some or all of your deposit?
            Yes, the person who just moved out had "a substantial amount of his deposit", to use the LL's own words, taken from him to pay for energy usage. The LL defended this by mentioning the cold weather.

            As I understand this is dodgy for 2 reasons.

            a) it is responsibilty of tenants, not landlords to pay energy bills. It is not as if british gas can do anything to my landlord as he does live in the flat.

            b) deposits are meant for security and damages.

            Comment


              #7
              Deposits are meant to secure against the breach of any term in a tenancy agreement. It is a standard term in most agreements that the tenant will pay the gas and electricity bills, so if the tenant didn't pay and there was such a term the landlord was perfectly entitled to use some of the deposit to do so.
              Disclaimer:

              The above represents my own opinion, derived from personal knowledge and should not be relied upon as definitive or accurate advice. It is offered free of charge and may contain errors or omissions or be an inaccurate opinion of the law. I accept no liability for any loss or damage suffered as a result of relying on the above.

              Comment


                #8
                Originally posted by bhaal View Post
                Deposits are meant to secure against the breach of any term in a tenancy agreement. It is a standard term in most agreements that the tenant will pay the gas and electricity bills, so if the tenant didn't pay and there was such a term the landlord was perfectly entitled to use some of the deposit to do so.
                there is no mention in my contract of energy bills.

                That aside, the landlord wouldnt suffer any financial penalty since he doesnt get the bills, the tenants do.

                Comment


                  #9
                  Originally posted by AlritePedro View Post
                  That aside, the landlord wouldnt suffer any financial penalty since he doesnt get the bills, the tenants do.
                  While that may be usually the case, it is not always so - there is another thread on here right now where a landlord is facing having to pay his tenants electricity due to some 'special' arrangement.

                  Also, a non-paying tenant may have a contract with the utility company, but although the landlord has no part in that contract, the utility company may well install a prepayment meter to recover their losses. This can make the property much less attractive to future prospective tenants as PP meters do not offer the same attractive rates that can be obtained with the usual 'credit' meters.

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