Deposit not protected in 2008.. court action limitation

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    Deposit not protected in 2008.. court action limitation

    Hi

    I ve been lucky to have had the same tenants since 2008. A 1 year contract was entered into in 2008 and then it just continued until 2012 when another contract was entered into.

    For one reason or another the deposit was not put into DPS etc, but in 2012 it was and has been there since.

    Now the tenants have given notice and have raised question about where was the deposit protected for the first 4/5 years, i think they are looking to make a claim. They are being advised somehow.

    Can they make a claim ? do i have any protection that it was so long ago, eg limitation act etc.

    Any guidance would really help

    #2
    Originally posted by jitty22 View Post
    Hi

    I ve been lucky to have had the same tenants since 2008. A 1 year contract was entered into in 2008 and then it just continued until 2012 when another contract was entered into.

    For one reason or another the deposit was not put into DPS etc, but in 2012 it was and has been there since.

    Now the tenants have given notice and have raised question about where was the deposit protected for the first 4/5 years, i think they are looking to make a claim. They are being advised somehow.

    Can they make a claim ? do i have any protection that it was so long ago, eg limitation act etc.

    Any guidance would really help
    Was the deposit protected and prescribed information served before May 6th 2012 ?

    Comment


      #3
      Opinions differ. The limitation period is 6 years from the cause of action. That's deposit (deemed) payment + 14 days + 6 years [for the tenancies in question].

      On the 2008 fixed term tenancy, no, because that tenancy has ended before changes bought in by the Localism Act 2011 kicked in in 2012.

      On the periodic tenancy from 2009 to 2012... when in 2012? Specifically, before or after 6th April 2012?

      The RLA is of the opinion that Localism Act changes mean the limitation period of 6 years was reset. Many posters here disagree.
      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.

      Comment


        #4
        https://england.shelter.org.uk/housi...otection_rules

        The date you protected it in 2012 will be important. Hopefully your tenants are unlucky?

        Comment


          #5
          I initially disagreed with the RLA advice that the localism act would mean the limitation period was reset.

          However, i can now see their point and why this would occur. Deposits taken before 2007 were given until 2015 to be protected. That is more than the 6 year limitation and so if the 2015 deadline were ignored there would otherwise be no consequence?

          A penalty must surely apply to deposits from the deadline dates and therefore most likely the limitation period would restart from then.

          In OPS case however, deposit was protected I think it will depend on what date in 2012 this was done as one penalty may apply

          Comment


            #6
            Originally posted by Wright76 View Post
            Deposits taken before 2007 were given until 2015 to be protected. That is more than the 6 year limitation and so if the 2015 deadline were ignored there would otherwise be no consequence?
            That was about the ongoing sanction against valid section 21 though, rather than right to a statutory penalty so not totally equivalent. Pre-2007 AST unprotected deposit does not carry the 1x-3x penalty even now.
            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.

            Comment


              #7
              Hi Everyone

              The last contract was dated 1st or 2nd October 2012, and i secured the deposit on September 2012. Just before the contact was renewed. with DPS

              But i had the deposit from February 2008 to that date of deposit with only the first contact being signed in Feb 2008.

              from what i read it appears that , the tenants have a sure way to win some money for any failure... but i m hoping thats not the case, also i read its not a small claim, and costs are relevant if i lose ?

              regards

              Comment


                #8
                Originally posted by jitty22 View Post
                from what i read it appears that , the tenants have a sure way to win some money for any failure...
                If the RLA position re limitation is correct, then yes. A monetary penalty of between 1x to 3x the amount of the deposit.

                Originally posted by jitty22 View Post
                also i read its not a small claim, and costs are relevant if i lose ?
                If the tenant follow the procedure they're supposed to, what's called a Part 8 claim, then yes.
                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.

                Comment


                  #9
                  I think ghat if you advise the tenants that it wasnt protected but is outside the 6 year period where a claim for a penalty can be brought, it would be very unlikely to be pursued. I cant see a no-win, no-fee solicitor taking the risk.

                  Comment


                    #10
                    Thanks KTC your right and I hadnt thought of that.

                    It still brings in doubt though regarding the 6 year limitation and I do see now where the RLA are coming from.

                    I totally agree with DPT that you should provide that response. The only reason it won't go through small claims is if a no win no fee solicitor picks it up and sees pound signs. The penalty will then seem like peanuts and your bill will run into thousands.

                    With doubt regarding the limitation period I can't see a no win no fee solicitor taking the risk. A tenant would not fund a case themselves via part 8 and would be more likely to take the small claims route.

                    I would offer no settlement. Advise them that their deposit has been suitably protected throughout their final tenancy and that they are outside of the time frame to claim on the first.

                    Claims like this boil my blood!

                    Comment


                      #11
                      https://www.rla.org.uk/landlord/guid...rom-2015.shtml

                      This is the info from the RLA but it does state it is their opinion and I'm not aware of any test case

                      Comment


                        #12
                        I also beleive they have become confused as I did regarding the difference between the localism act affect on section 21 and penalty.

                        The very fact that pre 2007 tenancies were given until 2015 to protect in order to serve section 21, but did not attract a penalty indicated they knew the 6 year limitation would apply.

                        I think because the act was written at a time where post 2007 deposits would still fall foul of a penalty if not protected in 2012 confusion has arose.

                        I'm back to the opinion that the RLA are most definitely wrong and I would defend a claim all the way.

                        Comment


                          #13
                          You're confusing things a bit more I think.

                          The pre-2007 deposit not attracting a 1-3x penalty is simply because deposit protection legislation wasn't in force until then and it would had been unfair to change that retrospectively. It was actually Charalambous v Ng that states that s215 penalties (against s21) are ongoing. The relevant bit of Deregulation Act was more for those caught by Superstrike v Rodrigues giving LL a period of time to catch up on older tenancies where the SPT was after 2007 but the original deposit before that. There was nothing in Deregulation Act about pre-2007 SPT. Maybe it's because it's clear to lawyers, or more likely they just didn't consider it.

                          The RLA position I think is simply based on that the cause of action being a LL failure to protect a deposit by the transitional date given in Localism Act 2011 (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012, rather than any extension or whatever.
                          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.

                          Comment


                            #14
                            Thanks again KTC!

                            I can still find no legislation to support the RLA claim.

                            At first I believed the point to be that a penalty applies at each possible and failed possibility to protect, so every new AST or periodic (which I still find unfair!) and therefore including the dates regarding deregulation.

                            But nothing I can find legislates this and I fail to therefore see how a claim could stand up in court?

                            On the opposite side however, the RLA have the landlords interests in mind and so their literature stressing their view that a penalty will apply must surely come with some back up?

                            It's all well and good us doubting it and I myself have advised OP to respond advising a claim is out of time, but what if we are wrong?!

                            There should surely be some confirmation else there's going to be landlords with their fingers crossed until 2018!!

                            Comment


                              #15
                              Originally posted by Wright76 View Post
                              There should surely be some confirmation else there's going to be landlords with their fingers crossed until 2018!!
                              The law states what the law is.

                              Unfortunately it is up to judges to determine what the law means.
                              Until there is a case, it is just the opinion of lawyers and lay folk.

                              Comment

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