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Deposit Protection - Misleading info

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« on: March 09, 2020, 06:14:35 PM »

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 ?
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« Reply #1 on: March 09, 2020, 07:13:08 PM »

Let's break it down.

Q1: How many tenancies were there?
A1: 2016 fixed term - definite. 2017 three months statutory periodic - debateable. 2017 fixed term - definite. 2018 statutory periodic - definite. So at least 3, maybe 4 tenancies.

Q2: Of course 3 or 4 tenancies, were the deposit protection legislation complied with?
A2: 2016 - debateable. Without sight of exactly what was in the tenancy agreement, it's not possible to say for definite. If the details of the authorised scheme used as stated in the info in the tenancy agreement, then the correct prescribed information wasn't given. 2017 (statutory) - non-compliance. 2017 (fixed term) - if no 2017 statutory periodic tenancy, then definite non-compliance; if yes to 2017 statutory periodic, then debateable as not enough information but probably non-compliance. 2018 - definite.

Q3: What's the penalty?
A3: The minimum 1x penalty for the 2 definite breach = £2,362 x 1 x 3 = £4,724. The maximum 3x penalty for the maximum number of tenancies = £2,362 x 3 x 4 = £28,344. There were clearly attempts at protection of the deposit even if not very timely. 2016 tenancy was at best a technical breach on prescribed information. It was ultimately protected before you leave. The high end on multiple tenancies would probably not be reasonable. At a guess, I would say the likely award if it gets to court is 4 tenancies at the minimum of 1x on all equals £9,448, to an optimistic 2x on two of the late protection equalling £14,172.
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« Reply #2 on: March 09, 2020, 07:54:45 PM »

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
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« Reply #3 on: March 09, 2020, 08:33:43 PM »

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 ?

Tenancy B is a replacement tenancy of tenancy A. Deemed compliance under deposit protection for tenancy B only applies if during tenancy A the deposit was protected AND the prescribed information was correctly given (at any point), AND at the start of tenancy B the deposit continues to be protected by the same scheme used when prescribed information was given for tenancy A.

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)

The question is whether the tenancy agreement exchanged in November 2017 merely records the terms of the tenancy that was agreed and started in September 2017, or whether agreement between the parties only happened in November. If the latter, that tenancy only started in November, replacing a statutory periodic tenancy that arose in September 2017, with the only actual legal consequence of the "backdating" being in the calculation of when the fixed term ends.

So, what are the instances in which law had been breached and why ?

(Based on your two posts)

As a tenant, i.e. you, one would argue there was 4 tenancies, the first PI not served correctly, the second deposit wasn't protected at all throughout, the third PI not served correctly, the fourth late protection and PI not served correctly.

As the LL, the argument would be PI was served correctly in the first tenancy being what was given in the tenancy agreement. Either the "backdated" tenancy was a record of terms that started in September 2017 in which case accept late protection but PI was given correctly on the same basis as first tenancy, or a SPT arose while you were negotiating terms of renewal and LL forgot to tell DPS tenancy rolled into SPT accept penalty for second but protected in time and PI given correctly for third. In either event, protection was in place when final replacement tenancy started, deemed compliance. There was a period during the tenancy where protection was not in place but non-actionable now that the tenancy is over.
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« Reply #4 on: March 10, 2020, 11:37:14 AM »

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)
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« Reply #5 on: March 10, 2020, 02:17:16 PM »

How could you hold KTC to anything? You now need to approach your ex-Landlord with an open-mind and desire to negotiate a resolution you might both be happy with. Start with a Letter Before Action if you like - and 'claim' for the absolute maximum (your high water mark) in that letter, but invite offers so that they know there's some room to move around... and say that you hope to reach settlement without going to Court. You shouldn't be thinking of Court and a Judge at this stage. You'd only aim to get there if your Landlord completely ignores you, or doesn't negotiate in good faith... or does and you can't reach a settlement... it's not a desirable grand day out (at all).

Get that first proper approach on the cards... then let us know what kind of response you receive. There's template letters everywhere. Of course, if you've already started this, apologies, but I don't see concrete indication that you're at any stage beyond pondering action and sizing-up the task / win scenario. Good luck!
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« Reply #6 on: March 10, 2020, 02:52:52 PM »

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.
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« Reply #7 on: March 10, 2020, 04:48:30 PM »

What's going to be more important is what you'll settle for - whether that be a multiplier or an absolute figure. Not what you can get, as such.

Negotiating 101 is that you state your case as the maximum... even possibly overstate it... put the frighteners on the Landlord and either get them seeking legal advice or get them coming to the table to treat. If this was a simple single tenancy with a totally unprotected Deposit - you'd suggest a figure of 3x, why would you suggest 1x? Then the Landlord comes back and tries to convince you 3x would never fly - for reasons a, b and c - and you end up settling on 2x to avoid wasting the Court's time - no-one is perfectly happy, but everyone is satisfied. Yours is more complicated, granted... but you don't have to justify your 'claim' cast-iron right now - you could claim in terms of 1x to 3x x the number of tenancies / breaches... or suggest an absolute figure, or just talk about the failures and the fact you're open to negotiation. You need to commence somewhere to see whether you are going to be ignored completely. Once the channel of communication is open - it's down to negotiation, not prescribed by any Court, so - as I say - it's more about what you'll settle for (and the Landlord, of course). If the channel is never opened, then you still don't need to know about the successes of others as the Court will eventually decide.
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« Reply #8 on: March 10, 2020, 07:51:47 PM »

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.
« Last Edit: March 10, 2020, 07:53:52 PM by madferret »
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« Reply #9 on: March 10, 2020, 09:07:05 PM »

Start with a Letter Before Action if you like

To be pedantic, the (ex-)tenant are required to send a LBA as part of the pre-action protocol if they're going to go to court, or risk being liable for LL's cost etc.

I don’t wish to put a spanner in the works but an alternative approach would be for the OP to get out

Given the LL wanted the T out a year ago, I was assuming OP have already left.
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« Reply #10 on: March 11, 2020, 10:49:25 AM »

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. 
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« Reply #11 on: March 11, 2020, 01:57:59 PM »

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 agree.

Sounds very vindictive considering the deposit WAS protected.

I would advise that no-one should be helping this type of person with their query. Such a nasty desire could quite easily bankrupt a landlord for no real reason apart from greed and selfishness.
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« Reply #12 on: March 12, 2020, 10:18:20 AM »

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.
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« Reply #13 on: March 12, 2020, 04:16:10 PM »

just because you can do something legally does not make it the decent way to behave.

That is true ... but it's a lot easier for me to say as a well-off landlord lounging in my armchair made of cash. If I were an impecunious tenant, struggling every month to pay the rent, or even to save the deposit to buy a house of my own, the prospect of two, three, five, grand could be a real game-changer. When all's said and done, I'm not the one who broke the law, am I?

We don't know what's happened here: for the most part it looks like a classic illustration on why I don't like insured schemes. Maybe the landlord was using one for the first time - hence the outdated wording on the first tenancy - and failed to realise that protection needed renewing ... and then failed to realise it again 12 months later...

Unless, of course, he did put it in a custodial scheme from the outset, and then protected it with an insured scheme as well for good measure!  :)
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« Reply #14 on: March 12, 2020, 05:45:17 PM »

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.
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« Reply #15 on: March 12, 2020, 08:02:23 PM »

Deposit protection requirements are just short of 13 years old. There's no excuse for landlords or their letting agents not to comply correctly. It is literally LL's business to get it right.

We're not even talking about legal technicality like whether a PI given by a company LL/LA is validly served because companies law when everything else was done correctly. It's a straightforward case of incorrect PI information and late/no protection here. The only complication is the "backdated" tenancy.

I'll happily help both sides. The tenant wants to know what the maximum they may be entitled to, no problem. Equally, if the landlord come and ask what kind of argument may help minimise the penalty (besides settling early), I'll happily answer that too.
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