Deposit Protection - Misleading info

Hi,

Thank you for this amazing service. Before my question, some useful context

    As one of the tenants, I signed an AST  contract for 12 months in 2016  which also had a ‘“Prescribed information’ which mentioned ‘Tenancy Deposit Scheme (TDS)’ and gave its contact details.

    Following the signature, I paid £ 2362 for the deposit and £1575 for the first month rent.

    Before 30 days, I got an email from another scheme provider DPS (insured) that my deposit had been protected, but landlord did not serve any new ‘Prescribed information’

    I did not question this at that time, all I knew was ‘deposit had to be protected’. That's all.

Given the context above my questions are:

Given the landlord has not given me correct prescribed information, can it be lawfully argued that it was not protected at all and hence I can get the maximum 3 times the deposit ?

Also worth noting in the email I received from DPS,

    It only had my name, not wife’s who was also a tenant in the agreement.

    The amount was wrong it had £ 3262 which may be a typo

When the tenancy expired after 12 months, I received an email from DPS, my protection also had ended. But, the landlord did not renew the contract nor the protection for another 3 months. When he did, he then

    Backdated the agreement by 3 months.

    But, when I enquired about the expired deposit protection, after a while he did register, but again no prescribed info was sent to me from him,  again I received email from DPS (insured) saying my deposit was protected, but the tenancy start date was not backdated. This time the amount was corrected to £2362.

Following the expiry of another 12 months,

    DPS emailed me my protection had ended

    But, landlord did not renew contract nor the deposit protection as we were discussing with some new terms he wanted to add to the contract

    He then wanted me out, and at this time (after elapse of more than 3 months), he protected the deposit under TDS (custodial)

    Again no ‘prescribed info’ was sent despite the change in protection

Given all of the above, What is the ‘likely’ sum I may be able to get ?

Thanks KTC, for the detailed answer.

I was not aware my case had so many tenancies ! I just thought one..thanks for your breakdown it is an eye-opener.

is it possible to ask in this forum for any solicitors in the London area who may take this up on a 'no-win-no-fee basiis? (not sure if it ok to ask, but ai ma newbie, so forgive me if I should not)

I am trying to understand the law, wif I have to file this myself.

I read about Deregulation Act of 2015, does it not apply here and LL does not have to serve PI every time it is renewed ?

so the timeline is as below.
First Tenancy: Sept 2016 - Sept 2017 (TDS given in the PI, but received email from DPS, no other info regarding this from LL, DPS ended Sept 2017)
second         :  Sept 2017 - Sept 2018 (contract exchanged over email in Nov 2017, dates backdated to Sept. 2017 which LL said for accounting purposes, but DPS protection started in Dec 2017)

After Sept 2018, when technically tenancy became periodic and after Dec 2018 when the DPS protection ended, nothing was done to renew either the tenancy nor the protection

in March 2019 - LL protected the deposit in TDS (custodial)  when he decided to evict me and even then PI was not served. (Just forwarded the email he received from TDS)

So, what are the instances in which law had been breached and why ? also what is the max and min compensation I can expect from experience (not second guessing Judge of course). Thanks

thanks KTC for a detailed answer.

so if you are the judge and if this case comes to you,  what would your verdict  be and why ? (I am not gonna hold you for anything thouugh, just to have an idea)

yes, sounds sensible plan.

but if I hv an idea of how strong/week my case is based on the above,  will be useful in the negotiation hence asking around to get an idea of other's experiences on similar scenarios.

I don’t wish to put a spanner in the works but an alternative approach would be for the OP to get out, secure another tenancy not having been impaired by negatively-biased references; then retrospectively seek legitimate costs and penalties from his (current) landlord. It is an alternative with a tad less jeopardy.
I recall tenants can do this up to six years later, but I am sure someone can correct me if I am wrong.

I can't help but feel some distaste about this query.It certainly does sound as if the landlord has been negligent in his legal duties,but nothing is said about the overall situation.More information might change my opinion.Was the deposit returned without quibble,was he a decent landlord overall, maybe struggling with big problems,why did he "want them out"?  I like money as much as the next person,but just because you can do something legally does not make it the decent way to behave.It could be that he is a rogue and deserves to be punished,but that is not clear. 

I can't help but feel some distaste about this query.It certainly does sound as if the landlord has been negligent in his legal duties,but nothing is said about the overall situation.

I've never met a Landlord who freely admits they're a bad Landlord... in fact, the story is often - seen almost almost verbatim on here many times - "I consider myself a good Landlord" or "I've been a really great Landlord and thought we had an amazing relationship"... the fact is there are rogues out there... the only real reason the legislation that is coming in is coming in is because of the rogues (and to a lesser extent the inept)... lawmakers shouldn't have time to go around fixing things that aren't broken in the first place. So... Deposits... whether this Landlord was a rogue or not - if the law says a penalty is due then it is. The only way the rogues are going to be hounded out of the business is via legislation leading to fines / penalties / bans... if you're a rogue then you'll eventually be found out and hounded out, if you're not and it's an honest mistake - then you'll pay out and not make that same mistake again... but the fault still lies with you - not with the Tenant for claiming.

In a scenario like this - regardless of any other noise that may surround it - there is only one party at fault - the Landlord whose responsibility it was to protect the Deposit. We've all said - many times - it is not a hard thing to do... you can only get it wrong if you don't intend to do it, or you don't care enough to find out about it. As I have never failed to properly protect a Deposit, and I never will, I do find it quite a challenge to manufacture any sympathy for those on the receiving-end of a claim - that said, I would always try to "treat the patient in front of me" and give my advice about settling, and for something that is reasonable. It is Human nature to think you should extract everything you can from a situation... but some people carry innate honour within them and will accept rapped knuckles (like a 1x penalty as compensation).

The sad thing is - if there wasn't a problem with Deposits then these laws would not have come in. If the 'industry' of Landlording gets it act together, then it's already too late - this legislation will not go away.

I often used a Tenant's ability to offer up a larger Deposit as a tie-breaker for properties. I never got into horse-trading over rent. Now I cannot do that because of the strict limit on Deposit sizes. If you had a really desirable property, and a keen Tenant, they would often be very accepting of a significantly larger Deposit, as that money was still their money - not lost to them, but just held by me, and it gave me a really good boost of confidence that they were financially responsible at some level.

It's the same situation with fees. I never charged for anything but the referencing costs... which I think a potential Tenant should cover themselves... now I have to put skin in the game (£s) to see if they're a wrong-un.

There's no denying the landlord has broken the law.The other circumstances make not a jot of difference to his obligations.They may however make a difference to how much effort I would go to advise the tenant to go for the jugular.In this case I would hope that a court would agree that the landlord acted in the spirit of the law,and that there was no real attempt to avoid deposit protection.The real rogues in any walk of life are rarely deterred by such legislation.I would be interested to know if the tenant feels he has suffered sufficient loss and stress to justify a possible penalty of 14 grand being handed to him on a plate.I am no saint,and fully understand him wanting revenge if he has been treated very badly.Otherwise,it all sounds pretty grubby to me,and I have been a flat-broke tenant in my time.

Hi all,

the case is coming to a hearing soon..not sure if it is correct to ask here, apologies if so, where can I get the details of 'no-win-no-fee' solicitor to help me with this as I believe there is a clear case against LL here.

His defense is to say, he protected it under insured scheme (with DPS) and paid premium and hence it was protected throughout. Further, he is citing Deregulation act of 2015 to squash 'multiple tenancies'

But I rang DPS with the details and they confirmed for period of 3 months. the deposit WAS NOT protected and I believe since it was not protected properly to the letter of the law (wrong PI was served) in the first instance Deregulation act does not apply...

anybody hv any thoughts on this pls?

thanks in advance

thanks, yes landlord simply chose to do nothing as confirmed by DPS who are going to send a letter confirming that, but I may not get it before the hearing.

But I have the emails DPS sent at that time which has two different deposit IDs and clearly stating one ended and other only started 3 months after., so hope this is enough for me to prove to Judge it WAS NOT protected.
annd landlord's defence on by virtue of this being Insured does not wash...

the reason I wanted solicitor is they can cite section numbers of the breach and may hv more law points...

also, for non protection is there any time limit, etc it can be non protected for X days, only after its elapse it is a breach ?

also when presenting my case, can I cite past legal cases to judge, i.e "Ayannuga and Swindells [2012] EWCA Civ 1789" ti cite Prescribed Info is as much as important as the deposit etc,,,, or will be Judge not like it as they may perceive as I am teaching him/her....(asking because this is my first hearing ever in my life and last thing I want is to upset the Judge)

If the decision is not in my favour, can these money claims heard in county courts also be appealed ?

well, LL did not return any of the deposit despite property handed back to him in the same state found.

I am just making a counter claim to the money claim he made trying to exhort more money (not agreed to mutual surrender, took possession of the property prior to the expiry of the notice to quit, but still wants rent for the whole period until the expiry) this in unfair and he is an unscrupulous landlord unlike anyone I had dealt with before...

Now, is it possible to get some answers on my questions above pls?

If you have a "clear case against LL", then you don't need a "'no-win-no-fee' lawyer" (technically a lawyer offering to take it on a conditional fee agreement) assuming you don't expect any problems with the landlord actually paying when he losses, you're going to win, the lawyers can get court to award cost with judgement. Just find one whose fee is close to if not equal what you may be able to recover from losing side. You'll actually end up taking home more than going with a no-win-no-fee.

also when presenting my case, can I cite past legal cases to judge, i.e "Ayannuga and Swindells [2012] EWCA Civ 1789" ti cite Prescribed Info is as much as important as the deposit etc,,,, or will be Judge not like it as they may perceive as I am teaching him/her....

Yes, you can cite authorities. Very much how our legal system works. But err, doing things correctly, skeleton arguments & bundle need to be prepared to include any authorities that are cited, filed and served with court & other side as and when required. At the very least as a LiP, if the judgments are on Bailii, print out 3 copies of the whole judgments for the case you are citing and take it with you to court. (One copy each for you, judge, and landlord.)

If the decision is not in my favour, can these money claims heard in county courts also be appealed ?

Yes, cases can be appealed, but if you ever reach that point, I'd strongly advise you seek the the advice of a suitably qualified solicitor first.

the reason I wanted solicitor is they can cite section numbers of the breach and may hv more law points...

For deposit protection, you can probably find them online if you have the time and inclination to learn.

A (probably not so) short summaries:

The requirement to protect deposit etc. are imposed by s213 of the Housing Act 2004 as amended, with subsection (3) giving landlord 30 days from deposit being received to comply with the initial requirements of an authorised scheme. Under subsection (5) & (6), the landlord must also provide the tenant with the prescribed information within the same 30 days period. The information is prescribed under article 2 of The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 as amended.

The initial requirements of the DPS insurance scheme is as laid out by their Insured terms and conditions. Of interest to you (and the court) is the April 2015 version 23 version of that T&C which applied at the time of your various tenancies. Google and find yourself a copy. Take 3 copies with you to court. For TDS, the relevant one is the Tenancy Deposit Scheme for Landlords Membership Rules, 6th Edition. That's happens to still be the latest version, available on their website.

Based on your earlier posts:
A fixed term tenancies from September 2016 to September 2017. Landlord failed to give correct & required information under art. 2(1) (a) to (f) - since none of the info given related to scheme used, (g)(i) - wrong amount, (g)(iv) - wife as joint tenant not listed, though you better check that was actually the case with DPS and not that they treated you as Lead Tenant but info was supplied by landlord.

A statutory periodic tenancy pursuant to s5 of Housing Act 1988 arose September 2017 till November 2017. Per Superstrike Ltd v Rodrigues [2013] EWCA Civ 669, that's a new tenancy, deposit requirements applied afresh, and hence penalties for non-compliance applied again. Email from DPS confirms that landlord failed to notify DPS on tenant continued occupation and terms as required by section 16 of DPS's insured terms and conditions, hence protection expired along with end of previous fixed term. Deemed compliance under s215B of the Housing Act 2004 as inserted by s32 of the Deregulation Act 2015 does not apply here as the required conditions under s215B(1) (c) & (f) was not fulfilled. Deposit not protected at all throughout this tenancy.

New fixed term November 2017 to September 2018. Backdated start date only applies to calculation of fixed term end date, not when tenancy actually began. Not clear whether DPS protection Dec 2017 was within 30 days of November 2017 tenancy start date, but PI was not correctly given per previous fixed term regardless.

SPT from September 2018. While DPS deemed the deposit remained under protection because landlord protected it for 12 months from December 2017, as PI wasn't given correctly in the preceding tenancy, again deemed compliance does not apply, hence PI not correctly given within the required 30 days period. Deposit was not protected between December 2018 and March 2019, but tenancy ended so no seperate claim for that. In any case, it wouldn't be a seperate penalty from the initial (and continued) non-compliance of PI requirements, but the court may wish to take into account the period of non-protection when deciding amount of penalty. Updated PI was also not given when protected with TDS from March 2019, though the info in the tenancy agreement may finally be correct as PI, though with no required leaflet (What is the Tenancy Deposit Scheme, 6th Edition), probably not. Again, in any case, not relevant to seperate claim or seperate penalty.

As such, you request the court award a penalty of between 1x and 3x the amount of the deposit per s214(4) of the Housing Act 2004 for each of the 4 tenancies breach. You also request the return of the deposit itself under s214(3).

Standard internet warning applies: I am not a lawyer, the above is not legal advice, I am not assuming any responsibilties over its correctness etc. etc.

Each time the deposit is received by the landlord, which for all subsequent tenancies after the first is deemed to be the first day of the new tenancy, the landlord have 30 days to protect it in an authorised scheme per the requirements of that scheme and to provide full and complete prescribed information. Whether it was never protected, protected but after the deadline, it was protected on time but no PI given, or it was protected on time but PI was given late or incorrectly, the landlord would liable for the penalty. The details of whether it was late or never etc. would only go towards affecting the size of the penalty the court awards.

The incorrect amount in the first DPS certificate may or may not be an error by the landlord or it could be DPS, but it's not the only bit of the PI that's incorrect so in the grand scheme of things doesn't really make much difference. I wouldn't focus on it too much if at all, but it's there.

but only to me and not to the other joint tenant

Check the TDS scheme terms to see if there's any mention of what the landlord should do when there's joint tenants. You can add the details, but again, it's just more details. Any which way, it was late. And the TDS protection doesn't really matter since you are concerned with the lack of protection and/or PI within 30 days of deposit being paid/start of replacement tenancy. LL changed scheme later? Meh, whatever.

Quote from: KTC on October 29, 2020, 08:29:02 PM

Each time the deposit is received by the landlord, which for all subsequent tenancies after the first is deemed to be the first day of the new tenancy, the landlord have 30 day

I am not sure I follow you here, but there was only once at the beginning of the tenancy LL received my deposit.

The deposit was received when you pay it originally for the first fixed term tenancy. When that tenancy finished, and was followed by a new one with the same landlord for the same place, the law treats it as if the landlord paid it back to you and you immediately pay it straight back to the landlord for the new tenancy, even though no money (or cheque etc.) actually changes hand. The landlord is thus deemed to have received the deposit again, and the 30 days limit for protection & PI applies.

See Superstrike Ltd v Rodrigues [2013] EWCA Civ 669.

all I now want to find is a legal basis to be able to prove to judge there are multiple tenancies and this is not just one tenancy to maximise my compensation.

having second thoughts abt citing Superstike v Rodiguez as it may be dismissed as it had been reversed by Deregulation Act 2015 ?