UK Landlord Forum / Life

I do need some advice.
My tenant moved out last week; of her own steam. She asked me for the details of the deposit protection service I used, she came back to say that they do not have any record of her deposit, on checking I realised that I did not complete the process. The reason why the process did not complete was because my computer crashed just after I had finished entering all of the details, but what I did not realise was it had deleted some of what I had entered and was waiting for me to complete the entery; it was my mistake completey and I owned up. I explained what had happened, also informed her that her deposit is now in the protection scheme, and I did apologise for the inconvenience. I have refunded her in full, she did leave some minor damages, but we agreed to call it quits. It was only 2 days ago that she requested her deposit details.

Any how, she has made it clear to me that she is very concerned that her deposit was not protected. I have replied and she has stated that my reply was uneccesary, she has suggested that she is going to take legal action against me as I have not complied with the deposit protection scheme and she is going to claim 3 times her deposit as compensation. This lady does accept that she will get her deposit back in fuil and that a mistake was made, but she is unforgiving of the fact that her deposit was entered into the scheme late, and suggested that I should have checked it regularly"! I do get

What I would also like to add, is that she has been disruptive in the flat and caused a great deal of upset to all the other residents, she did not take kindly to being told to keep the noise down; went on until 5am, this is the resaon she has left because she feels that she is being spied on.

I will get to the question:

1. Can she still make a claim against me for a administration error, that I have rectified by paying her the deposit in full
2. If it does go to court and it is accepted that this was human error and no intent to be unlawful, do I still get a heavy fine
3. Can the tenant insist on 3 times the deposit returned as compensation
4. Can the tenant threaten me with going to the court and insist on compensation in order to stop her making a claim
5. If the tenant has breached her tenancy being extremely noisy and affecting other residents (this clause is in the tenancy as it is a old house), would this be considered in the courts
6. If she makes a claim would this be classed as a CCJ against me or would it go to the small claims court

Many thanks for going through this. I made a mistake and just wish to be prepared when she does act.

Hi. Unfortunately, the honest mistake you've made is probably the worst one you can make   The law is such an ass that you can probably get fined more for not protecting the deposit than if you were renting out a property that was a death trap.

I think the first thing you need to do is get some legal advice, as the threat of a 3 x deposit fine is very real. 

I'm not qualified to answer your questions, but I believe the 3 x deposit fine is a maximum fine that a judge would impose. Given that it was an honest mistake on your part, that you have returned the deposit in full, and have waived the damages and breaches of contract (noise disturbance wise) by your tenant, a judge would probably look favourably on your case. 

I wouldn't have thought that it makes any sense to settle out of court by paying the maximum 3 x deposit. You could call her bluff and tell her that you'd like it to go to court as you believe that her damages and breaches of contract will cancel out any award to her for not protecting the deposit.  Or perhaps offer 1 x deposit settlement. As I say, I think you probably need some legal advice, unless anyone else on this forum knows what the actual fines being imposed in the case of 'honest mistakes' are...

Good luck!

Personally I would say that as the deposit has now been lodged, and she is getting it all back, the law will say that she has not been damaged, and therefore she is not due damages.

DO NOT BRING UP THE OTHER ISSUES, it's too much "Yeah but, I know I messed up, but you were like so totally untidy and noisy"

Keep it simple, talk just about the deposit, you have not taken it away from her, she will get it back, so don't worry.

Where the deposit has not been lodged the advice is simple, pay it back to them straight away, not put it in the scheme, if you messed up make it like it didn't happen as soon as you could have. You would have been better giving it too her than putting it late in the scheme, but hey ho!

Its too easy to read things in to this, and talk legally about damages and court etc etc, but do any of us actually know what happens? The only advice professionally I have been given is.... Give it back, there was no deposit if it wasn't lodged correctly, this is especially hurtfull if there are arrears or damage, but that is the fact, if you try treating it like a deposit, that is when you can get in trouble with the Courts as I understand it.

The law is not a complete ass, it's not there to punish you for a mistake, just there to stop you rightfully withholding tenant monies for damages and non payment of rent if the deposit is not protected......

As I say hindsight and all that, but actually lodging it late as a deposit rather than giving it back is the worst of it in my mind, but it will all come out in the wash.

Oh and if you get fined, it's only a CCJ when you don't pay the fine, its a County Court Judgement for non payment of debt, not a record of a fine, once it's paid it's gone, just like any other bill you owe. But you wont get fined.. Dont sweat it, let her try her bully tactics, she is obviously just out for a fight due to her problems with facial hair............

Maybe we should be clearer... the deposit was not protected correctly (whether that be fully or in-time). Therefore the Tenant has a valid claim. The Tenant can be awarded between 1x and 3x the deposit amount... on top of the deposit being / already returned. While the Tenant can claim 3x the deposit, don't be frightened into thinking that will be what is awarded - a genuine mistake from a naïve Landlord simply isn't likely to attract that kind of penalty (however, a small risk is there!).

However, if it does end up in Court, then the Law would say that you are at fault and the case will surely go against you. It is the responsibility of the Landlord, solely, to do this correctly - and, sadly, you haven't. It's not debatable, you know it's not been done correctly - all the other stuff probably amounts to noise, I'm afraid. Sorry.

To try and answer your 6 questions...

1. Yes.
2. Yes; but don't think in terms of 3x the deposit.
3. No.
4. They can 'suggest' a compromise, one that you might be interested in looking at..? Or you can make a suggestion of your own? SimonC makes a suggestion you might want to contemplate.
5. No, separate matters.
6. I'm not 100% sure - best advice I can give is try to avoid it going to Court, at all, as you are not in the best position.

It is good that you have refunded the Tenant's deposit in full already... if you had not, I would have advised that immediately. Now you need to decide whether you will hope the Law sees your side (tough and risky) or whether you think this greedy Tenant will take a bird in the hand (1x or .5x deposit?) rather than angling for 3 in the bush (very, very unlikely... most likely 1x but who can predict it, really?) If you come to an arrangement with this Tenant, get something signed (don't let them try for double-bubble).

Let us know how it goes.

Quote from: SimonC on April 02, 2014, 07:31:29 AMAs I say, I think you probably need some legal advice, unless anyone else on this forum knows what the actual fines being imposed in the case of 'honest mistakes' are...

I don't, but I would do nearly anything necessary to avoid it reaching Court. This can be a costly mistake, but it won't happen again.

http://www.rawlisonbutler.com/Business/property-disputes/residential-landlord-and-tenant/13206


Here we go.....

Case law from a firm of proper chaps.

I was wrong before.

The fact you have registered, allbiet late, but before the tenant issued any proceedings, according to this case law, you're home and dry my friend.

The penalty only applies to the registration not the lateness! As long as its done, especially before the tenant starts proceeding means she cant even get her costs back.

God I hope you are not a one post wonder, after wasting my time on that (joke I wanted to know anyway!)

Good find Boboff. 

Hopefully for Bingonightnurse those cases are still valid.  I only say that because in 2012 there were some changes made to tenancy deposit legislation (including now having 30 days to protect, not 14 )...

Agreed Simon.

I still think it's good to have some case law to show though, where the law was sensible, and acknowledged what the legislation is there for, to protect the deposit, which we would all agree is a good thing, but this idea that the tenant can put in a claim because it was a few days late, or they didn't get the right bit of paper, gets right on my Tits!

I am going with them!

Many thanks to you all for very sound advice. I have seeked some advice from a legal friend of mine and he has mirrored similar views.

I have also realised that I had breached the DPS policy by paying her the deposit directly from my account, so I am now going to have to make a singly claim to have this returned to me.

If I had known that everything could be so hard at times; hindsight is such a wonderful thing.

I do have a great tenant now who is looking after the place.

Will keep you all updated

Thanks again

Here is another canundrum:

The deposit has now been protected and I want for it to be repaid back to me, she  is now disputing this as I protected it late and will not accept full payment to me; althought I do have proof that I have paid her in full. She will not agree to me having the full amount back - any futher advice please

She realizes that you did something which means she cant go to court so is trying it on.

It is your call, give in, compromise, fight.....

I'll admit that I'm now a bit confused...

Did you say that your Tenant had moved out a week or so ago? Did you also say that you'd paid her back her deposit amount in full? Did you then say that you've now protected the deposit?

If the deposit was, say, £500, does this mean you took £500 off the Tenant at some point near the beginning of the tenancy and recently repaid £500 back to her, then you have gone and put £500 into a deposit protection scheme? If so, whose £500? Did she put it into a deposit protection scheme for you (not sure that's even possible)? Or did you put it in for yourself? Is it the same £500 you repaid to her in full that she's given you back to protect, or another £500?

Am I misreading this thread? It says "I have refunded her in full" in the first post and "The deposit has now been protected" in the last post by Bingonightnurse.

He's done both Hippo.

Repaid the deposit to the tenant, and sent the deposit to protection.

He now wants the protected one back, as hes already repaid it, and the tenant wants that as well!

Nice.

As this thread started - the Landlord had already repaid the Tenant's deposit in full and the Tenant had moved out. I would have thought that would be the end of the matter in terms of returning anything, but - of course - the Tenant can claim for non-protection. How can the deposit be then protected by the Landlord for a tenancy that has ended?

More importantly, why?

I can't figure out if I'm misreading something or this Landlord is doing some quite odd things.

Actually looking into those case laws it is exactly the right thing to do, provided the deposit is protected before any action filed by the tenant and obviously before it goes to court then it says no fine is payable. The protection is the important thing and not the timing of it.

I agree its not the easiest way of going about it, and I suspect as the tenant already has her money she'll try to prolong the repayment of the 2nd deposit available free of charge to her, by being a tit about allowing it to be released back to the landlord.

Que?

Who paid the second deposit?

Has the Landlord paid their own money into a deposit protection scheme, which immediately is tagged as being the Tenant's money? The original deposit that the Tenant passed to the Landlord (for protecting) has already been repaid to them. I can't imagine the Tenant has given the Landlord another deposit, right?

This all sounds bonkers. What is the purpose of protecting a second deposit? And after the tenancy has ended? A second deposit that, surely, the Tenant has not even provided to the Landlord, but now has control of? I am really scratching my head on the course of action that appears to have been taken here.

I have gone the long way about it, but, I protected her deposit as soon as I realised I had not completed the process, I did not realise that it takes a 5 days to be cleared and then she would have to wait a further 20 days before she could request a repayment. I've realised that I am probably in the best place as the DPS will resolve any dispute and she will probably get something but not all, and yes, she cannot take me to court.

She was not prepared to wait a month for her deposit, so I have repaid her out of my own pocket; novice.

This has been a huge learning curved; valuable and expensive lesson learned.

Thanx for all your advice, and sorry I've confused you all.

OK - at least I understand that you've put in a second deposit from your own funds. This was what I could not get my head around.

So, is your expectation that your Tenant is eventually going to end up with 2 x their original deposit, or not? The 1 x that you've already refunded them and the 1 x that you've belatedly put into the deposit scheme? Or are you both agreed that the later deposit will be given to you, in full? I'm struggling to see why the Tenant would accept this... especially if they were intending to move against you for non-protection.

Is 2x (original deposit plus 1x) what you've accepted as your 'penalty' and the Tenant agrees or are you still hoping to 'get off' with just returning the original deposit? It sounds like this is what you've - almost - accepted with "as the DPS will resolve any dispute and she will probably get something but not all"...

If so, I don't think this is too bad - if the Tenant grabs the additional 1x (or less) and it ends all this for you, I can't see that's too bad a result (for you).

It's certainly an interesting way to go about it, though... 

Hey - you'll never not protect a deposit correctly again, right? Best of luck.

Quote from: boboff on April 02, 2014, 10:19:33 AM
http://www.rawlisonbutler.com/Business/property-disputes/residential-landlord-and-tenant/13206


Here we go.....

Case law from a firm of proper chaps.

I was wrong before.

The fact you have registered, allbiet late, but before the tenant issued any proceedings, according to this case law, you're home and dry my friend.

The penalty only applies to the registration not the lateness! As long as its done, especially before the tenant starts proceeding means she cant even get her costs back.

God I hope you are not a one post wonder, after wasting my time on that (joke I wanted to know anyway!)

The link you have provided is out of date information.  It was written in 2011 - before the Localism act closed the loophole.
The OP can be sued for late registration of the deposit and her tenant will win on penalty. 
Returning a deposit does not protect you from penalty.
Registering a deposit late does not protect you from penalty.
Read this link in its entirety:  http://www.gardencourtchambers.co.uk/imageUpload/File/Localismarticle5Apr12.pdf

All deposits must be protected within 30 days of receiving the money.
The PI must be given to the tenant within 30 days.
The court will impose a penalty of 1x up to 3x the amount of the deposit.
Returning the deposit does not mean you will escape penalty.
The tenant can still sue you and it depends on the circumstances of the case what penalty amount is awarded.

Thank you.

Very good article.

Just to update you all. When I claimed the deposit back, it was not contested. She was not sure what to do. I think she was having a moment. It almost became an expensive lesson.
Thanks again for all your advice.