Forum Home Search Login Register
+  Landlord Forum
|-+  General Category
| |-+  Tenant Advice & Help
| | |-+  Deposit Protection - Misleading info

Deposit Protection - Misleading info [Page 2]

Pages: 1 [2]
Print
Author Topic: Deposit Protection - Misleading info  (Read 2246 times)
Newbie
Posts: 25

I like property

« Reply #30 on: November 14, 2020, 01:48:08 PM »

yes, KTC, I was just confused by the Deregulation Act 2015. Having googled and read about it this is what I understand.

the superstike case establishes that perodic tenancies are 'new tenancies' but the only ruling reversed by Degulation Act of 2015 is only with regards to the deposit protection. Hope I am right.

so, KTC, you are right and thanks for the all the legal points, I just want to bind these along with the legal authority for the Judge to see. This is what I am planning to do, pls let me know if there is any other way.

1) argue there are multiple tenancies as per Superstike case
2) take a print out of https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html and attach with that.

Thanks

Hero Member
Posts: 622

I like property

« Reply #31 on: November 14, 2020, 06:30:33 PM »

Superstrike merely confirms what were clear to housing lawyers at the time, that a statutory peirodic tenancy pursuant to s5 of the Housing Act 1988 is a new tenancy from that of the fixed term tenancy. More importantly is the consequence of that that were decided amongst other things.

  • Does the protection requirements applies to deposit taken before the law changed - because of wordings from amendments bought in by the Localism Act 2011, yes it does in so far as no valid section 21 notice if not protected, but the 1x-3x penalty wouldn't apply
  • What happens when a new tenancy come into existence between the same landlord and tenant - the requirements applies afresh as if the deposit was paid over again even if no actual money changes hand

What the Deregulation Act did
  • For a deposit that was originally received before 6 April 2007 when deposit protection came in, if an associated statutory periodic tenancy arose after that date - if the tenancy had ended, tenant can't sue for a penalty; for ongoing tenancy, landlord had 90 days to protect deposit in which case they would be treated as having complied with the requirements all along
  • To save the burden on landlord to give PI again when nothing changes, allows the landlord to be deemed in law to have complied with the requirements to give PI if indeed nothing have changed - same landlord, same tenant, same property, deposit continued to be protected by the same scheme

That second part does nothing for a landlord when the deposit was not continuingly being protected under the same scheme, or the landlord had not given PI to the tenant in the preceding tenancy.

Is your hearing even in person, or is it a virtual / phone hearing?
Newbie
Posts: 25

I like property

« Reply #32 on: November 15, 2020, 01:29:52 PM »

thanks a ton again KTC for confirming my understanding. I am clear on Superstike case Deregulation Act.

My hearing is in person, but likely to be virtual if the pandemic continues..why how does it make a difference ?

I just need to file a witness statement which I have already prepared , but the part I am not sure how to cite these legal authorities in the statement which I believe I have to do based on your earlier replies for those to be referred during the hearing.

is it just that I take a print out of https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html and attach to my witness statement ?
Hero Member
Posts: 622

I like property

« Reply #33 on: November 15, 2020, 05:10:19 PM »

why how does it make a difference ?

Because you can't take copies of a printed document to the hearing with you if it's virtual?  ;)

A witness statement is a statement of fact. Done correctly, it's not supposed to have any opinion, or arguments in it. "I was a tenant of XYZ at ABC ADDRESS. On X/Y/Z, me and XZY agreed on a tenancy from this date to that date, a copy of the tenancy agreement is annexed as Annex A. I paid over a deposit of £XXX via bank transfer. etc. etc. He provided with this document, but at no point did I receive that document. etc. etc."

Proper court procedure. A summary of your legal argument is written out in what's called a skeleton argument. Give the judge and the other side an idea of what you're going to say at the hearing. This is supposed to be exchanged with other side, and copy filed with the court, just ahead of the hearing. Similarly, all documents filed and served, including the claim form, witness statements, skeleton arguments, authorities to be relied on etc. goes into a court bundle. This one is supposed to be agreed between the two sides so everyone work off the same thing. Don't always happen. If your case is in small claims (since you mentioned it's a counterclaim to a money claim from your landlord), the procedure is probably more relaxed. Do some research to see what the procedure are, see if it helps.
Newbie
Posts: 25

I like property

« Reply #34 on: November 16, 2020, 05:35:16 PM »

right, so the case is in county court.

Judge jasked me to file a 'supplementary' witness statement as I wanted to attach the evidence from the scheme provider themselves that deposit is not protected. so I also wanted to include your valid legal points and crucially cite the authorities in it.

Judge also asked the claimant to file a paginated catalogue ahead of the hearing which is going to be virtual.

so I am looking to include authorities somehow. Don't think I can file a separate document such as 'skeleton argument' as Judge was clear I only need to file a witness statement in the last hearing.

I have googled and still no lick on how I can include legal authorities as part of wtiness statements alone. any ideas pls?
Hero Member
Posts: 622

I like property

« Reply #35 on: November 16, 2020, 07:19:25 PM »

Once again, a witness statement is a statement of fact not where you lay out your legal arguments. So you can say something along the line of "to my knowledge the deposit was not protected, which I confirmed with the 3 schemes (see attached letters for their responses)"

I have no idea what a "paginated catalogue" is supposed to be.

There's a difference between what you need to file (and serve to other side), and what you can file and serve. When judges give you directions to do something, you are required to do it, doesn't mean you can't do more (unless ordered not to). Looks like trial bundle falls under you can if you want but not required for cases under small claims track.
Newbie
Posts: 25

I like property

« Reply #36 on: November 17, 2020, 12:46:16 AM »

yes I know how witness statements looks like. I have prepared them before myself.

what I am not sure is how to attach the legal authorities in them

what harm it will do if I just take a print out from https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html and refer to them as 'evidence AZ01" etc in my witness statement - will the Judge not take this into account ? or what would be the proper way to do this for a remote hearing pls - I am bit hesitant to file 'skeleton argument' as I hv not done that before.

the case is at county court, so the small claims procedure is not applicable I presume?
Newbie
Posts: 25

I like property

« Reply #37 on: November 18, 2020, 01:44:00 AM »

yes found out the claim is under 'small claims track' - I was not aware small claims are also heard in county courts..thought they had their own court.

what does 'file' and 'serve' mean - sending the document to court and the claimant....

should I just email the court or should I post to them the printed copies to be accepted for hearing...the directions from the court only says 'file and serve'..

thanks in advance for any insight into this
Hero Member
Posts: 622

I like property

« Reply #38 on: November 18, 2020, 05:46:43 PM »

https://www.lawgazette.co.uk/benchmarks/calculation-of-time/5041273.article

There should be instructions either on communication you've had with the court so far, or gov.uk stating how that court accept documents.

https://www.justice.gov.uk/courts/email-guidance
Newbie
Posts: 25

I like property

« Reply #39 on: November 18, 2020, 07:33:37 PM »

thanks, the letter from the court simple says 'file and serve' by a 4pm 25th Nov'  and does not specify email or post.

The court had asked previously for documents to be sent electronically for virtual hearing.

and claimant also emailed to say he wants the document via email as he is abroad.

so shall I email both parties ? or should I still print them and send by post - really confused....(pages are less than 50 pages and less than 25MB btw)
Hero Member
Posts: 622

I like property

« Reply #40 on: November 18, 2020, 07:58:39 PM »

If the other side told you email is okay, then you can email.

If the court previously directed you to do it a specific way, follow their direction.
Newbie
Posts: 25

I like property

« Reply #41 on: November 18, 2020, 08:22:18 PM »

thanks again KTC.

the last time they asked for the virtual hearing, hope the same applies this time too..

also I am going to send a PDF version of https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html in that email as atachment. Let me know if there is another way.
Newbie
Posts: 25

I like property

« Reply #42 on: January 15, 2021, 05:17:14 PM »

Hi,

the hearing was scheduled to be next week, but today I have received a letter from the court the trial had been vacated as the claimant did not pay the trial fee of £335.

my question is I have the counterclaim and have previously paid courts the relevant fee for counterclaim around £700, so what should I do now?

how can I make sure the counterclaim is heard as I have a good case.

tried contacting courts, but no luck as this is my first encounter with any form of court not sure what to do - any advice/help would be appreciated.

thanks in advance
Hero Member
Posts: 622

I like property

« Reply #43 on: January 15, 2021, 05:59:27 PM »

You need to keep trying to get in contact with the court. There's nothing anyone here can help you with.

Your counterclaim should still stand, but only the court can help you with when the hearing into that will be.
Newbie
Posts: 25

I like property

« Reply #44 on: January 15, 2021, 06:41:43 PM »

ok thanks. I will keep calling the courts - now will have to on Monday.

but I was seeking advice on the following and trying to understand why the claimant had not paid the fee and what happens to this claim now.

brief summary:
claimant seeked  9.5k rent when the arrears were only 5k.
I counterclaimed for 9k in the wtiness statement - although from this forum it turned out I may get much more than that due to multiple tenancies.

so the options I see are
1) ask court to set aside the order they had made in vacating the hearing - guess I will have to pay further £255
and what happens then - only the counterclaim is heard ?

2) do nothng now and may be issue a fresh claim later (but within 6 years) to get my deposit of 2k back?
if I do this, I believe claimant will counterclaim for the rent arrears ?

would love if somebody can answer these. thanks
Hero Member
Posts: 622

I like property

« Reply #45 on: January 15, 2021, 07:39:03 PM »

so the options I see are
1) ask court to set aside the order they had made in vacating the hearing - guess I will have to pay further £255
and what happens then - only the counterclaim is heard ?

2) do nothng now and may be issue a fresh claim later (but within 6 years) to get my deposit of 2k back?
if I do this, I believe claimant will counterclaim for the rent arrears ?

Get on the phone and point out there's a counterclaim. It's entirely possible for the court to not realise that. It's also possible for you to have misunderstood and that the claim have been struck out for non-payment, but the hearing into the counterclaim is still due to take place as originally scheduled.

Yes, as it stand, only the counterclaim will be heard. The claimant can apply to have the claim reinstated. Up to the court whether to grant it. The claimant can also possibly just try and make a new claim.
Newbie
Posts: 25

I like property

« Reply #46 on: January 15, 2021, 07:55:16 PM »

it is clear in the letter that schedulled hearing had been vacated so there is no hearing for counterclaim next week as I understand it - or have I misunderstood the court terminology?

and the order also says since it had been made without hearing, parties can apply for this to be varied/set aside by paying fee to the court.

so my understanding is the previosly schedulled hearing is non runner.

but I can have it heard another time if I pay a fee - it is not clear how much and how (any application form to use etc)

Newbie
Posts: 25

I like property

« Reply #47 on: January 18, 2021, 02:12:06 AM »

Hi @KTC,

What is the best way to remind court there is a counter-claim in these circumstance ? ( I have emailed courts, but no reply...called but no answer)

also since the claimant did not pay the small claims track trial fee - what happens to all the fees I had to incur so far ?

any advice would be helpful.



Hero Member
Posts: 622

I like property

« Reply #48 on: January 18, 2021, 03:02:40 AM »

I have no advice for you other than email, letter, and keep calling. And when I say keep calling, I mean don't hang up, let it ring and ring until it's either answered or you get cut off. If you get cut off, call back and let it ring.....
Newbie
Posts: 25

I like property

« Reply #49 on: January 18, 2021, 09:55:06 AM »

ok will do.

so as I understand it, the normal process if claimant does not pay the fee is for counterclaim is survivie as there is one and in this case the courts have failed to see it..correct ?
Newbie
Posts: 25

I like property

« Reply #50 on: January 22, 2021, 06:45:20 PM »

tried calling them for 5 days non stop and being on the call at times for 3 hrs!

sent email - no response either..

I feel lost - isn't there any other way to remind courts that my counterclaim should have survived and how to get the fees I paid as the case had been automatically struck out due to claimant not paying the fee.

Thanks
Try Landlordzone instead, this site is ruined and sloppy
Newbie
Posts: 13

Heavykarma & Hippo troll tenants, avoid this site

« Reply #51 on: January 31, 2021, 06:31:44 AM »

Mahira,

I am unable to follow your thread properly, but l get the impression you've been waiting for an eMail reply from the county court for about 1 week?

They don't confer with you on the case via eMail, they will write to your registered address instead - just make sure they have your address right.

If you're question is about procedure e.g. if claim hearing is voided, is counterclaim still valid, then l would have expected them to reply via eMail. All l can say is: at least your eMail is a clear record of your interactions. Just make sure your inbox is secure and keep screenshots too.



One thing l'm curious about. The claim hearing was voided because landlord wouldn't pay hearing fees. That is exactly what happened with me when my landlord came at me, wanting to devour my deposit. He let the first Money Claim go to waste, because l feel he just wanted to see my evidence. Your tale bolsters this view. It seems it's a common tactic used by crooked folk who would game the legal system to help them devour the wealth of those with less money and / or less time (e.g. a company swarming a solitary person).

What happened with me was, the landlord soon returned with Money Claim #2, and it was on the exact same matter again, but the text was honed down in line with some of my objections sent in regard to Money Claim #1. So, expect another Money Claim from your landlord?



By the way, Mahira, it's not unreasonable to ask for legal advice on a forum called "Tenant Advice & Help". I don't know why some people make out otherwise. I've only been on this forum for 2 days but l strongly feel there's a few upset landlords here with issues, and they have probably been punished by the legal system.
If the legal system enables you to punish a landlord, and you want to do so, then it's not for some armchair holier-than-thou moderator to chastise you.
Newbie
Posts: 25

I like property

« Reply #52 on: February 05, 2021, 10:33:20 PM »

Hi Spingtime,

Thanks for your reply...I know there are good landlord but this previous one is a very dubious and dodgy one - interested nothing but the money/rent.

So, my case summary is like this - he claimed ridiculous rent event for period after my notice to quit expired for some reason even when he took possession of the property before the notice period ended by changing the locks without agreeing to mutual surrender.

I was happy to pay rent until notice ended even if it meant he had taken possession as I was entitled give him notice. But could not come around with the fact he was seeking rent after that date!

To his bad luck and to my advantage I noticed he had made numerous errors in protecting my deposit and one kind soul here (KTC) pointed out there are multiple tenancies and I could go for 3x deposit as compensation.

I then produced a solid witness statement backed up by some legal precedents (all thanks to KTC and internet) and sent to him and court which I believe would have forced him to rethink.

I was then very much looking forward for the hearing date and just week before found our he had not paid the fees and it automatically been struck out - been trying to contact court ever since to find out what should/supposed to have happened to my counterclaim as I paid  around £700 as court fee!

Regarding, asking legal help on tenant forum, it started out as tenant matter and turned into a legal one. Apologies if I hv offended anyone.

The thing is I did not have to deal with any courts in my life until this case , and I am clueless of the procedure.

I have not found any useful  legal forums either...If I can manage to get hold of a good legal expert with deposit protection, I believe I can teach this landlord a valuable lesson!




Pages: 1 [2]
Print