Deposit not protected in 2008.. court action limitation

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    #16
    There is nothing in law that remotely suggests the RLA are correct though mdeb and I don't know where the interpretation comes from.

    The deregulation act is very clear on what constitutes a failure and the only part I can find relating to deregulation dates is that a pre 2007 deposit which became periodic was given a further 90 days to protect.

    KTC is quite correct that the deregulation act mostly talks of consequences regarding eviction/section 21.

    Any Consequences discussed regarding penalty were drafted at a time when a penalty would have applied anyway as within time frame.

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      #17
      The rules on limitations are pretty general.

      Because, until 2012, it was possible to avoid a penalty by protecting the deposit just before a court hearing (which made the regulations pointless) I'd suggest telling the tenant the truth.
      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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        #18
        IMO the rel Act gave LLs 3 month grace period to protect a deposit for a current T, without Penalty, as it also required any existing T to protect any deposit received, irrespective of AST start date, so from June? 12, all deposits must be protected, as per Statute.
        If a deposit was received for a 2006 T, and LL did not protect it in the Grace period (June 12) the T has until ~June 18 to seek Penalty. This confusion will disappear in Jun 18.

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          #19
          Whilst I understand your logic mariner and that of the rla the legislation does not seem to agree.

          Section 214 speaks of penalties in regards to protection that was not arranged at the beginning of tenancies, and does not mention consequences of not complying with deregulation dates.

          The assumption is therefore that if deregulation deadlines were not met then the deposit was deemed as unprotected and relevant consequences apply. This would mean that a section 21 could not be issued until the deposit was returned and that is without argument because it is legislated.

          There seems to be no legislation regarding penalties however and it is therefore my belief that If they are beyond 6years and 14/30 days then a penalty will not apply.

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            #20
            I really appreciate all the advise and comments

            I think where steps have been take to protect deposits and /. or where it simply appears tenants are just trying to abuse the law, the courts should be more strict on claim.

            I wonder if there have been any cases like mine where the 6 year rule is changed despite the new act etc.

            Would it be too risky to fight the case if brought on those grounds i wonder.

            thanks for all , any comments welcome

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              #21
              Cases lke this aren't likely to be recorded, and the sums of money quite low, so anyone appealing would have to get high enough up the court hierachy to get a meaningfull judgement.

              The limitation starts at the "cause of action", which, for a deposit penalty seems to be the deadline on which it should have been protected at the time.

              For debts, the cause of action is the point at which the debt arises - but can be extended by various specific actions, which can reset the clock (so the debtor can't simply hide for six years to legally aviod paying).

              For the return of a deposit itself, the cause of action is likely to be 10 days after the end of the tenancy - which is when the landlord is probably meant to have returned it.
              Until the landlord doesn't return it, they don't owe it to the tenant - the tenant's money is where it should be (it might not be protected, but that's separate).

              I don't know of any definitive case on a penalty claim - although it makes sense that the cause of action is the point at which the penalty became possible.

              Because the point at which a penalty for some periodic deposits which should have been protected was changed by Superstrike, which, as case law could have retrospective effect, the localisation act was to change the legislation in parallel and to offer a way to resolve the issues it raised.
              The localisation act "amnesty" really gave landlords a way out of the retrospective problem that they were given by Superstrike, otherwise those without time machines were simply stuck.

              I don't agree with the RLA's reading, the cause of action seems to me to be Superstrike rather than the localisation act amnesty end point.
              But, to be honest, no one is ever going to be arguing that in a county court - it's a law essay subject.
              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


                #22
                I would consult a solicitor but I certainly wouldn't be offering any settlement with so much doubt.

                The law on penalties speaks only of failures at the beginning of a tenancy or as jpkeates correctly puts it "cause of action".

                If a tenant is relying on this law then the limitation period has expired.

                A good solicitor could maybe argue that the limitation period was extended by deregulation but I fail to see how.

                In the case of debts, if a debtor acknowledges the debt within a 6 year period they remain liable for the debt and that is why it is reset.

                I would therefore think that If it is acknowledged within the 6 year period that protection was not arranged then the period could be extended. But amnesty dates are not necessarily an acknowledgement.

                It's a shame we can't get feedback from small claims as to whether there has been a test case. Roll on 2018 when there can be no further doubt

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                  #23
                  This whole thread has also made me question the effect of deregulation on multiple penalty claims.

                  Whilst superstrike confirmed that a renewal or periodic tenancy was deemed receipt of the deposit once again it doesn't make it clear that a penalty would apply.

                  I'm confusing myself so I will come back to this with a clear head

                  Comment


                    #24
                    jitty22,

                    Oh, I wouldn't actually go to court.

                    What you need to do is write (or get your solicitor to write) back to mention the 6 year limit, and that you consider the penalty no longer applies.

                    Comment


                      #25
                      As jko advises.

                      I can't see any solicitor taking on the case and applying to court which would be the only reason to avoid a claim in court. No win no fee solicitors don't use the small claim route and the gamble of paying court fees and expenses wouldn't be worth the gamble.

                      If tenant takes action themselves it will be via small claims and worth the risk for you to defend.

                      There is no legislation at all that I can find to indicate the 6 year is reset.

                      Superstrike was decided based on the fact the deposit was deemed as received on a periodic or renewal tenancy.

                      Deregulation applied amnesty dates but didnt in any way imply that deposits could once again be deemed as received.

                      The "cause of action" as I see it has expired.

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