Article: Tackling Private Landlords’ Non-Protection of Deposits: Discussion/Redress

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    Article: Tackling Private Landlords’ Non-Protection of Deposits: Discussion/Redress

    The following article may be of interest to users of this group. I have copied in the introduction (but I would advise reading the article in full) - written by a successful lay tenant (me) and uploaded to "handfulofearth" for the first time last night. I have had one tenant already ask to make use of the template writ as they are having bother getting their deposit returned. A shot in the arm if one was needed for landlords with unprotected deposits to rectify the situation soon as!

    "Introduction

    This article, about the Tenancy Deposit Schemes (Scotland) Regulations 2011, is inspired by my experiences pursuing my former landlord in Court, due to her non-protection of my partner’s tenancy deposit. In Scotland, securing a tenant’s deposit in an approved scheme is a legal requirement as a result of these Regulations, and as far as I am aware, I am the only lay representative to successfully bring court action under the 2011 Regulations, with my former landlord sanctioned two times the amount of the original deposit, plus expenses. I have obtained a wealth of knowledge on the Regulations and the realities of pursuing legal redress in this area, and through this article I wish to share the insights I have gleaned in order to inspire other tenants in similar situations to take legal action; this is particularly important given, as I will discuss, that the current direction of legal judgements in this area appears to be going against the spirit of the Regulations and, if this trend continues, are at risk of rendering this progressive legislation obsolete.

    It is intended that the following information will diminish the whip hand of the unscrupulous landlord, and in the best case outcome it will encourage law makers to have a look at how the Regulations might be strengthened going forward; but I would caution however, that this is not intended as a hate piece on landlords. There are many upstanding landlords who follow all of their obligations to the letter and sometimes there are unfortunate situations where landlords are the victims of rogue tenants. However, the Private Rented Sector is in desperate need of regulation and reform, as many tenants find themselves the victims of rogue landlords. The law ought to be a crucial mechanism in the quest to improve standards in the Private Rented Sector and change the culture of entitlement which landlords have enjoyed for far too long. The 2011 Regulations, when enforced appropriately, are just one important component of this effort, enhancing tenants’ rights to redress and deterring landlords from shirking their responsibilities. Standards in the Private Rented Sector will be further improved by the introduction of additional legislation, such as the Private Housing (Tenancies) (Scotland) Act 2016.

    The first part of this article gives an overview of the Regulations, why they were introduced and why they matter; thereafter it provides an analysis of the evolving body of caselaw which exists to date, along with a discussion on what can be done to ensure the Regulations are workable and achieve what they were originally designed to do. Parts 2 and 3 of this article recount my experiences as a lay representative pursuing my former landlord in respect of her non-compliance with the Regulations; I reflect on my experiences and eventual success in what was an arduous two year process, and I also provide step-by-step practical guidance to others in a similar position who may wish to pursue court action. My intention is to make tenants aware of their rights and empower them to take action where appropriate, but a friendly word of caution – this is a process which is not for the faint hearted!"

    Link to full article below:


    https://handfulofearth.scot/tenancy-...tions-scotland

    Thanks,

    Kevin

    #2
    What a fascinating article and it is very interesting to see things from the other side of the fence.

    I know in the past when I have discussed taking legal action with lawyers against tenants it usually turns out that it is not worth it in terms of time and money and it is interesting that this appears to be the case for tenants as well. Perhaps when the First Tier Tribunal system is introduced this will change.

    Whilst it is wrong that landlords were not repaying deposits the figures that The Scottish Government provided to justify the setting up of The Tenancy Deposit Scheme were a massive exageration of the problem. Similarly I very much doubt that 50% of deposits are unprotected as per the report you mention. Regarding the penalty imposed of three times the amount of the deposit, normally in Scots law you can only recover the amount you have lost so these laws appear to break from the principle of Scots law. Further a mistake in sending the prescribed information or lodging a deposit late is very different to not lodging a deposit at all and the Sheriff should have some discretion when setting an award.

    From my experience over the last few years the landlord/tenant relationship has changed, the relationship is much more adversarial than it previously was and a process (letting out a flat) that was relatively simple is now far more complicated. I don't know if tenants regard this as an improvement my guess is that most don't really notice any real difference apart from those who have the very worst landlords.

    Unfortunately the cost of this additional protection from the worst landlords has been borne in the increase in the rents that all tenants pay.

    Comment


      #3
      New case

      Originally posted by Sandi View Post
      What a fascinating article and it is very interesting to see things from the other side of the fence.
      Just another case for you - landlord sanctioned * 2 the deposit.

      My view is that the defence went in too heavy with the "behaviour of the tenant" - not relevant! Although, you could be forgiven for thinking that on recent previous judgements, I can see why the defence might have looked to go in strong, but if you get a Sheriff switched onto the regulations that attack will come over as the disingenuous assault it is. It it probably better to put you hands up at the earliest opportunity although there is the possibility you could get a judge sympathetic to the cause of landlords, and many of them being landlords themselves, this is not improbable. That is not to say they would not be impartial and apply the law but vantage point in life counts for a lot and they are human beings.

      See case below:

      Ross Cooper v Simon Marriott, 30 March 2016 – application of tenancy deposit scheme where property alleged not to be tenant’s main home and tenant accused of dishonesty
      Background
      Sheriff court case concerning a short assured tenancy of a flat in Edinburgh in relation to which a deposit of £550 was paid to the landlord but not paid into an approved tenancy deposit scheme as required under the Tenancy Deposit Schemes (Scotland) Regulations 2011. The tenant applied to the sheriff for an award of an amount of money as a sanction for the landlord’s failure to comply with his obligation under the regulations.

      Arguments
      The landlord argued that:

      the tenancy was not protected by the 2011 regulations because the property was not ‘the principal home’ of the tenant during the duration of the lease (as the tenant had worked 3 and half days a week in Skye for a period of 6 months); and
      even if the tenancy was protected by the regulations, a new tenancy was created in June 2014 in respect of which no deposit was made (meaning any action under the original lease would have been time barred at the time of the court action); and
      if the application was not time barred, the sanction provision was unenforceable, by the tenant, due to his dishonesty and illegality.
      Decision
      The sheriff rejected all of these arguments.

      In the first place, the question of the tenant’s principal home did not have any bearing on the case. (The landlord had referred to the definition of an assured tenancy contained in s12 of the Housing Scotland Act 1988 which requires that the property is the tenant’s only or principal home. However, this was a short assured tenancy not an assured tenancy)

      In the second place, although the tenancy agreement commenced on 15 June 2013 for a period of 12 months until 14 June 2014, it continued, with the consent of parties, until it terminated on 17 July 2015. Whilst the landlord had argued that a new lease was created in June 2014, the sheriff held that the tenancy was continued after 14 June 2014 on the principle of tacit relocation[1]. In coming to this conclusion, the sheriff noted that, after 14 June, the parties to the contract were the same, the property was the same and the only change was that the landlord had abated the rent by £50 because of a problem with the water supply. As such, the sheriff had no reason to think there was anything other than an extension to the original lease. (Meaning the action had been raised in sufficient time (i.e. within 3 months of 17 July 2015) in terms of reg. 9(1) of the 2011 Regulations).

      Finally, the principle of illegality referred to by the landlord had no application to this case. (Although the sheriff also found that the landlord’s allegations in this regard were unsubstantiated). The sheriff stated that, although in some cases of partial breach of the regulations where the deposit was ultimately paid into to the scheme, the conduct of the tenant could be relevant to the sanction, where the deposit is never lodged, he failed to see how the tenant’s character could ever mitigate the breach.

      As such, a sanction of twice the value of the deposit[2] was awarded[3].

      It is also of note that, with regard to arguments by the Landlord to the effect that he had not understood the regulations and was only an ‘amateur landlord’, the sheriff said the following:

      “the regulations do not recognise the status of ‘amateur landlord’. Landlords who rent to the public are covered by the regulations whether they are large commercial concerns or single property, buy to let landlords.”

      The full judgement is available from Scottish Courts here.

      __________________________________________________ ___________

      [1] Where the term of a lease comes to an end and the tenancy then renews itself on the same terms and conditions.

      [2] The maximum award is three times the value of the deposit.

      [3] Less £50 for minor damage which had occurred to the property.

      http://www.legalknowledgescotland.com/?p=2145

      Comment


        #4
        I think we're getting the message that the book will be thrown at us if we breach any of these regulations in the slightest - wasn't there are case where the deposit was fully protected and the only fault was a typo in the postcode within the "Prescribed Information"?

        Comment


          #5
          Reading that blog fully, I can see that you're concerned that sometimes these claims are being treated as an "award" to the tenant, therefore tempting the court to consider how much "award" the tenant deserves, rather than how much punishment the landlord should receive. Do you not think that this might have been part of the intent? If it was only intended to punish and not to reward the tenant, then it should have been made a criminal offence - in my view that would have been the correct treatment for financial misconduct.

          Comment

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