Deposit not protected - take landlord to court?

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    Deposit not protected - take landlord to court?

    I'm new to this forum, just came on to ask for some much needed advice, I'm really sorry if these are questions you have all read/answered before. The problem is I have just moved out of a property I rented for 16 months and found out the landlord has not protected my deposit, I paid him £470 and he has given me £190 back, £230 has been taken off for not giving enough notice, £10 for 6 not working lightbulbs (!!!!) and the rest he says he is witholding until I "clean" even though the place is in a much better state than when I moved in so I am refusing to do this. The questions I would like some advice on are; Is it worth taking him to court for not protecting my deposit? (in the hope of getting 3x the amount back), How successful are these cases?How much would it cost me to take him to court?Where do I begin?There are also a few problems with the way I left the house (fairly minor) the cat has scratched the carpet in a small area, there is also a stain on the carpet and a cupboard door has fallen off (although the landlord said he would sort that out.)Does the state of the property have any bearing on the fact he didn't protect my deposit?Sorry for the huge essay but any help would be greatly appreciated.

    #2
    It may well be worth it, yes, although it is not always straightforward or risk-free, especially if you are claiming the 3x penalty. It may be better just to concentrate on reclaiming the deposit itself and only contemplate the 'full monty' if that fails..

    Did you sign an Inventory/Schedule of Condition at the start of the tenancy?
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

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      #3
      No, it was my first letting and was unsure about these sort of things!!

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        #4
        Sorry I didn't see the first part you'd written, how rude do i sound!!Thanks for the advice, do you know how much it may actually cost to take him to court?It may not actually be worth the hassle, it would only be worth it if I was guarenteed the 3x back, which I know isn't a given.

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          #5
          The primary fact here is the LL has not protected your dposit, which is contrary to the Housing Act. The LL has an lawful obligation to do this and if he fails to do so you have the right to got to the Small Claims Court and ask for it back.

          You can deal with the deductions alongside of the deposit issue.

          If you didnt sign an inventory before you moved in or indeed as you left the property then the court is likely to say there can be no way of deciding on what occured during your tenancy and may decide the LL cannot keep any of the deposit.

          I am in the process of a court case regarding non protection and can send you some info via pm if you like.

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            #6
            Contrary to Rubysnannas comments, deposit protection claims re NOT held in the small claims track - they are either multi-tack or fast-track and are part 8 claims instead of the usual part 7 http://www.hmcourts-service.gov.uk/d...pplication.pdf

            The fact that they are part 7 means your court fees may well be iro £1000. IF you win, the landlord will be ordered to refund these fees to you, but if you loose, you may well be ordered to pay any legal costs the landlord has incurred (solicitors £100+/hr) too.

            If your tenancy had been on-going, your landlord would be able to protect your deposit with the DPS to immediately defeat such a claim.

            The situation is not yet clear if the same applies after a tenancy has ended - an appeal court decision is due VERY soon.

            Putting aside the unlawfulness of his failure to protect the deposit, I would say...

            Notice: So long as his maths is right, he is very likely to be able to successfuly counterclaim for that
            Lights: If there is an initial inventory showing the bulbs as working, then £10 for 6 is a bargain for you. However, presuming I read your answer to MTG correctly, ie no inventory, then he can not prove they were even there at the start of the tenancy, so he would fail in a counterclaim for this.
            Clean: IF his claim for cleaning is justified, it is very unusual to be allowed back into the property after you leave to avoid being charged. However, without a starting inventory, the landlord will be unable to prove the place was in a worse state when you left - so he would fail in a counterclaim for this.

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              #7
              Originally posted by laura243 View Post
              I rented for 16 months...£230 has been taken off for not giving enough notice
              Assuming that the fixed term had expired, and the tenancy was periodic, T is required to give at least one month's notice, expiring at the end of a rental period. If you answer a few questions, we can tell you your rental liability:

              Date fixed term commenced (dd/mm/yy)?
              Length of term (and whether an expiry date is specified)?
              Rent payable monthly/weekly?
              Date you gave notice?
              Date of expiry of your notice?
              Date you actually moved out?

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                #8
                This should be simple to sort out:

                1) The Landlord should have protected the deposit. This is non-negotiable and breaches the 2004 Housing Act law regarding safeguarding deposits. As the Landlord did not protect the deposit, then the Landlord has lost ALL rights to claim deductions from the deposit and also put them in a position where the Landlord can be fined 3 times the deposit.
                2) Write to the Landlord and tell them that you want all the deposit back right now due to the non-safeguarding of the deposit. There is no negotiation here, you want it all back within 14 days.
                - Tell the Landlord that if they do not do this immediately, then you will immediately take the LL to court to claim for 3xdeposit + legal costs that you can rightfully claim as detailed in the 2004 Housing Act.
                - Also, tell the Landlord that you recommend that they seek legal advice as to their position which will confirm this situation.

                3) Wait for 14 days, either you have all the deposit money back or you initiate legal action as written about in the posts above.

                Note: All this advice assumes that the total yearly rent was less than £25K per annum when the tenancy was started (before Oct 2010) and that the tenancy is an Assured Shorthold Tenancy (AST).

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                  #9
                  Although I disagree with some of schocca's points, I would add this link, which contains a template for a suitable letter. http://tenancyanswers.ucoz.com/index..._protected/0-4

                  The lack of deposit protection DOES NOT prevent the landlord subsequently suing you for any damages / unpaid rent. Schocca suggests otherwise, but I believe the LL can counterclaim for those items in a deposit protection claim.

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                    #10
                    Originally posted by Snorkerz View Post

                    The lack of deposit protection DOES NOT prevent the landlord subsequently suing you for any damages / unpaid rent. Schocca suggests otherwise, but I believe the LL can counterclaim for those items in a deposit protection claim.
                    Ah, I agree here with Snorkerz, the LL can always sue for damages/unpaid rent - BUT not protecting the deposit means that the LL has lost the right to claim deductions from the deposit that was given to the Landlord that should have be protected.

                    The reason why the LL cannot deduct from the deposit is because the tenant cannot dispute any deductions from the deposit as detailed in the 2004 Housing Act. I.e. the tenant has lost these rights - which is why we also have the x3 deposit fine for non-compliance.

                    If the LL does want recompense for damages, they can always resort to the court process (which is available for all LLs and is especially important if any damages are greater than the deposit).

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                      #11
                      Originally posted by schocca View Post
                      As the Landlord did not protect the deposit, then the Landlord has lost ALL rights to claim deductions from the deposit...
                      No.

                      T may bring a non-compliance claim, but this does not prevent LL defending with a counterclaim for, say, damage or unpaid rent.

                      So, for example, the deposit is £500 and T is awarded £500 + £1,500 under s.214 HA 2004, but LL proves T is liable for £1,000 damage and/or rent arrears. End result would be LL is ordered to pay £1,000 to T (plus costs).

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                        #12
                        I agree. The only real consequences of not protecting a protectable deposit are:
                        a. not being able to use s.21; and
                        b. being ordered:
                        -i. to return/protect; and also
                        -ii. to pay the 3x civil penalty to T.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

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                          #13
                          Originally posted by Rubysnanna View Post
                          I am in the process of a court case regarding non protection and can send you some info via pm if you like.
                          That would be fantastic, thank you.

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                            #14
                            Originally posted by westminster View Post
                            Date fixed term commenced (dd/mm/yy)? 02/11/10
                            Length of term (and whether an expiry date is specified)? 6 months, no expiry date specified
                            Rent payable monthly/weekly? Monthly
                            Date you gave notice? 10/03/11
                            Date of expiry of your notice? 10/03/11
                            Date you actually moved out? 02/04/11
                            Thank you for your reply.

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                              #15
                              Thank you also to Schocca, Jeffery and Snorkerz for your advice, very interesting reading. Does anybody also know how succesful these cases are?I would hate to persue with this then lose but I have letters off all deposit schemes stating my deposit has not been protected and my signed tenancy agreement saying he would protect it so surely I can't lose if the facts are there in black and white?
                              Last edited by laura243; 10-04-2011, 16:45 PM. Reason: Letters missing out of words, I'v had a hard day at work (thats my excuse anyway!!)

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