How long does a tenant have to act over an unprotected deposit?

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    #16
    But the small claim route is (or should be) closed if the deposit has been returned.
    I'm not suggesting that the return of a deposit is a defence to not protecting it; it's an absolute defence to the case being brought at all as a fast track claim.

    A court hasn't awarded any penalty (yet) and, so, right now the landlord doesn't owe the tenant any money.
    So the defence that the landlord has is simple, there is no debt for the tenant to pursue.
    The tenant gave the landlord a sum of money as a deposit and the landlord has returned the sum of money - and would be able to evidence that.

    If the tenant want's to make a claim for the penalty the civil procedure rules say that such claims under s213 Housing Act 2004 can't use the fast track.

    Now, that isn't what seems to happen in practice, but I'd love to see what a judge does if that's all that comes back as the defence (I'd have to dig out the precise section of the Civil Procedures to back it up).
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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      #17
      Originally posted by jpkeates View Post
      But the small claim route is (or should be) closed if the deposit has been returned.
      The small claims route is technically never open in the first place. A claim for penalty is supposed to be bought under Part 8 of CPR (CPR 56.1(f) ; CPR PD Part 56 2.1), which automatically assigns it as a multi-track case (CPR 8.9(c)). Parties are free to apply to the judge to have it be treated as if it were started under Part 7 and then assign it to the small claims track.

      The defence you are talking about, is to apply for a case started under Part 7 small claims to be struck out for having been started under the wrong process. If the tenant then reissue correctly, there's arguments that can be had that the 2nd issue is abuse of process and hence should be struck out as well.

      You're also seems to be confusing small claims track and fast track. They're not the same thing. One can't begin a claim under fast track. Cases are assigned to it as opposed to multi track based on a number of criteria.

      As was stated above, the lack of a liability isn't a defence. Tenants are not claiming for (say) a breach of contract. They are claiming the landlord has not complied with their statutory obligations regarding deposits, and is asking the court to issue a penalty against the landlord, which by law is to be paid to the tenant.
      I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

      I do not answer questions through private messages which should be posted publicly on the forum.

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        #18
        You're right, I was wrongly conflating the small claims and fast track in my post.
        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment

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