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Failure to protect deposit/ serve prescribed information by poor landlord

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« on: May 11, 2019, 09:34:05 PM »

Hello,

First a thanks to all those who take the time to post their advice and experience regarding the sorts of matters discussed on these pages. I've spent some time reading and learnt a good amount. I'd like if possible, to draw upon your expertise in the context of my own situation. To be clear, my queries relate to my former role as a tenant (booo?!)at my previous address, the relationship with my former landlord and their agent/ friend (one and the same) which deteriorated, and my options in terms of dealing with their non-performance of their side of our agreement and in particular (you guessed it) correct process around deposit protection and serving of prescribed information. I will try to keep things as concise as possible whilst at the same time including the relevant details to build an accurate picture of the situation  - but please do pick me up in this area if the balance is not correct for you to form a view.

I moved into my previous address in mid 2014. Communication between the landlord/ agent and myself was initially amicable, somewhat informal (brief emails, text messages, whatsapp messages) and broadly adequate, though my sense was always that both other parties treated their roles more as a 'hobby' than a 'job'. By my nature I have high expectations in terms of organisation, prompt communication and treating a professional/ business relationship as such. Although my expectations weren't always met in this regard, I do also try to take a live and let live approach and so until my concerns became material I was prepared to let small annoyances slide; I realise as a tenant I must also have generated these! Unfortunately, relaxed and informal comms soon became poor or non-existent comms, and a laid-back attitude towards due process turned into a lazy approach to maintenance.

Throughout my time as a tenant I would occasionally out of interest research further the legalities of the landlord/ tenant relationship, and accordingly the extent to which I have documented my experience has grown with time. From 2016 (prompted by an inspection) I have maintained a log of maintenance issues identified and communicated by myself. By 2018 all material communications from myself were being sent in writing to the landlord's address and copied in full electronically to both landlord and agent. Perversely this seems to have encouraged the opposite from the landlord, who in 2018 went almost 6 months without responding to any of a wide range of communications. During the period after the aforementioned inspection in 2016 the landlord has performed precisely no proactive maintenance, and has responded slowly or not at all to key issues of safety and habitability which have arisen. I won't (unless requested) go into full detail of these here because they are not pertinent to my queries, only they serve to provide character to the context. In the end the tenancy had lapsed to become periodic and I provided notice in the correct way and left last month. For what it is worth the property was left in good order, in some areas in better order than five years ago, with some normal wear and tear to carpets and walls etc. The agent who performed checkout agreed on 30 April that there should be no threat to any of my deposit but I am still awaiting any further useful information regards the landlord's intention for the deposit, some  11 days later and despite several attempts to encourage such information to be provided.

Via my research mentioned above I have become aware of the Housing Act 2004 s213-215 and the rules around deposit protection and serving of prescribed information. Put bluntly, my landlord either is not aware of these rules or has chosen to ignore them. My initial deposit was not protected until some 17  months after I moved to my previous address and had chased repeatedly for the details of where it was held. Full and correct prescribed information has never been served (only a mydeposits deposit protection certificate, with some details I now realise were incorrect, though which at the time of receipt I did sign and return to confirm such). Because of this, I believe my landlord has broken the law at least five times, maybe more. The pattern of ASTs was as follows:

    T1 commenced 31/5/14, lasting 12 months, concluding 30/5/15
    T2 commenced 1/6/15, lasting 6 months, concluding 30/11/15
    T3 commenced 1/12/15, lasting 6 months, concluding 30/5/16
    T4 commenced 1/6/16, lasting 6 months, concluding 30/11/16
   
The tenancy then became periodic (T5) and remained as such until I served notice on 30/3/19 and left on 30/4/19.

I am unsure whether the gap between T1 and T2 would create an additional, one-day periodic tenancy (T1b, if you will). Additionally, some of these ASTs, most notably T4 were agreed retrospectively owing to the landlord/ their agent's slow communication. This means that at the time the tenancy had turned periodic but was then superseded (or not?) by an AST. The existence of T4b (again, if you will) doesn't really matter to me since I do not intend to rely upon it, nevertheless it is a point of interest.

Owing to my overall negative experience of the landlord and their agent and the way they have (in my view) failed to reasonably uphold their duty to me as a tenant (the experiences I mentioned but did not fully detail are important here), I do intend to write to them and if necessary raise court action in regard to their failures in process and resulting breaking of the law. I do not want to 'take them to the cleaners' and I am under no illusion that I would be automatically awarded the full 3x deposit maximum penalty per tenancy. I do however wish to make the point, reasonably forcefully and in a way which the message is certain to get across, that they cannot treat their tenant with such contempt, their responsibilities with such folly and hope that the tenant will simply cough up the rent (in my case ~60k) quietly and without some sense of injustice. I will be very open to a reasonable settlement, which in my current line of thinking would be a total of around 7x deposit plus the cost to raise a court action. This ballpark figure is made of 2.5x deposit for T1 where deposit remained unprotected throughout and PI was not served; 1.5x deposit for T2 where deposit was protected in the last month of tenancy and PI was not served; and 1x deposit for each of T3, T4 and T5, where deposit was protected but PI was not served correctly/ at all. To note, other elements of the PI were not provided until later than the deposit was protected; GSC until 2017 and EPC ever.

I think, hope, that my interpretation of the situation and facts is both accurate and sensible. I would appreciate comments and views on this overall, and also some specific points:

    Am I correct that the penalty the landlord is liable for is 1-3x deposit per tenancy?
    Do you agree with my counting(!) of 5 tenancies, not including the contentious or petty T1b and T4b?
    Given this, does my suggested settlement aim of 7x deposit plus my (hopefully unnecessary) court costs seem reasonable?
    Whether yes or no to the above, what would you suggest is a sensible opening gambit? Clearly I would not start where I want to end up. I also don't want to take the 'no win no fee approach' either practically nor in spirit by counting 7 tenancies and asking for 3x deposit for each of them. I think it's too much.
    Would you rely upon template letters before action found online or craft something more bespoke?
    Is there any way outside of letters from me or solicitors to help my former landlord see sense and the likely outcome of non-cooperation? I do not want to have to go to court - I will if necessary but do not want to - but I expect that this news/ request will not be acted upon by my former landlord in much the same way as they routinely ignored my requests for maintenance etc.
   
Thank you all in advance.
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« Reply #1 on: May 11, 2019, 11:10:49 PM »

Taking it (mostly but not completely) in order...

Am I correct that the penalty the landlord is liable for is 1-3x deposit per tenancy?

Assuming the tenancies were assured shorthold, yes.

Do you agree with my counting(!) of 5 tenancies, not including the contentious or petty T1b and T4b?

Based on the information you provided, yes.

Whether yes or no to the above, what would you suggest is a sensible opening gambit? Clearly I would not start where I want to end up. I also don't want to take the 'no win no fee approach' either practically nor in spirit by counting 7 tenancies and asking for 3x deposit for each of them. I think it's too much.

Just send the letter before action in writing to the address for service previously provided to you in relation to the tenancy. There's not really much point trying anything less formal with someone who have been ignoring you.

You can simply state the legal position and ask for a response. "There were 5 tenancies. You failed to comply with s213 of the 2004 Act in all of the cases. As a result, you are liable for a penalty of between 1x-3x the amount of the deposit per tenancy in accordance with s214, and Superstrike v Rodrigues [2013]. Please reply within 14 days to discuss a settlement, failing which you would go to court." The same when you issue a claim, instead of asking for specific XYZ, you ask for 5 penalties each between 1x-3x.

If you want to actually settle, one of you are going to have to make an offer with an actual number.

Would you rely upon template letters before action found online or craft something more bespoke?

You look at the templates, and use it to draft your own based on it.

Is there any way outside of letters from me or solicitors to help my former landlord see sense and the likely outcome of non-cooperation? I do not want to have to go to court - I will if necessary but do not want to - but I expect that this news/ request will not be acted upon by my former landlord in much the same way as they routinely ignored my requests for maintenance etc.

You answered your own question.

Given this, does my suggested settlement aim of 7x deposit plus my (hopefully unnecessary) court costs seem reasonable?

Court cost will only be reasonable if you settled after paying said cost assuming the fee is non-refundable. Otherwise yes, but....

though which at the time of receipt I did sign and return to confirm such

Not necessarily insurmountable, but you're going to run into problems there if your landlord defend competently.
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« Reply #2 on: May 11, 2019, 11:24:52 PM »

Thank you for the speedy response. It all makes sense, but I have one further question.

Taking it (mostly but not completely) in order...

...

though which at the time of receipt I did sign and return to confirm such

Not necessarily insurmountable, but you're going to run into problems there if your landlord defend competently.

What sort of problems do you refer to? Whilst I realise in hindsight that mine wasn't the best course of action, it does not change the bare fact that the deposit was not protected correctly nor the required information served - to be clear what I signed was the tardy certificate only, not something to say that the information had been served.
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« Reply #3 on: May 12, 2019, 12:41:11 AM »

What sort of problems do you refer to? Whilst I realise in hindsight that mine wasn't the best course of action, it does not change the bare fact that the deposit was not protected correctly nor the required information served - to be clear what I signed was the tardy certificate only, not something to say that the information had been served.

Part of the PI is the requirement for the landlord to give the tenant the opportunity to sign the confirmation (in the form of a certificate) "containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of [the tenant] knowledge and belief". If you're now going to argue that the information that was given to you were incorrect, you can imagine what the first question the defence or the judge will have for you.

Though, if the landlord never gave you the correct MyDeposit's Information for Tenant leaflet (which is a requirement), you can go with that instead of saying what they did provide was incorrect despite you signing the confirmation.
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« Reply #4 on: May 12, 2019, 01:04:04 AM »

What sort of problems do you refer to? Whilst I realise in hindsight that mine wasn't the best course of action, it does not change the bare fact that the deposit was not protected correctly nor the required information served - to be clear what I signed was the tardy certificate only, not something to say that the information had been served.

Part of the PI is the requirement for the landlord to give the tenant the opportunity to sign the confirmation (in the form of a certificate) "containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of [the tenant] knowledge and belief". If you're now going to argue that the information that was given to you were incorrect, you can imagine what the first question the defence or the judge will have for you.

Though, if the landlord never gave you the correct MyDeposit's Information for Tenant leaflet (which is a requirement), you can go with that instead of saying what they did provide was incorrect despite you signing the confirmation.

Thank you again. Yes, of course, I was not thorough enough in this aspect. My providing that information here was merely to give the full facts and hold my hands up, rather than set it out as a key part of what I wish to argue. Apologies if this was not clear.

At the time and after nearly a year and a half of enquiring about deposit protection status I was pleased just to have some proof that my money hadn't vanished. I did query some details but not all of the ones I should have. The certificate has the date the deposit was collected from tenant simply matching the protection date, which is more than 17 months after the deposit was in fact originally provided. This date the deposit was provided is verifiable via both bank records and email confirmation from the agent of received funds following an invoice for said deposit. My thinking at the time was that the date was an arbitrary date where the deposit was being 'deemed' to have been returned and re-protected in respect of the tenancy (T3) immediately forthcoming. Daft of me but there you go. The tenancy type is also wrong on the certificate.

At no point was or has the leaflet been provided.
« Last Edit: May 12, 2019, 01:07:16 AM by Beattieeee »
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« Reply #5 on: May 12, 2019, 10:57:26 AM »

The tenancy type is also wrong on the certificate.

How?

Speaking of which, MyDeposit, was it their insurance or custodial scheme? If it were the insurance scheme, as there were a new fixed term agreement subsequent (T4), it needed to have been protected again with a new fee paid. If not, I would argue that there was no valid protection for T4 and T5, not just no PI.
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« Reply #6 on: May 12, 2019, 12:02:18 PM »

During the period after the aforementioned inspection in 2016 the landlord has performed precisely no proactive maintenance, and has responded slowly or not at all to key issues of safety and habitability which have arisen. I won't (unless requested) go into full detail of these here because they are not pertinent to my queries....

Darn-tooting correct... there's so much noise in here which you identify as irrelevant but then proceed to mention it anyway. This is what we call a cleansing, a venting, a character-assassination aimed at someone who's not able to respond.  :-X What proactive maintenance is a Landlord expected to do? I find myself reacting mostly, you see? Otherwise things are just running along nicely, thank you very much. You do come across as what I call a Slow-Burning-Tenant-Terror... this is the Tenant who's all smiles and joviality at the beginning of a tenancy but - over time - starts to resent paying-out the rent (the mentioned 60,000 is the clue) in return for the perceived value of what you're getting... so you start to raise issues (in your own kind of formalised way) and expect them addressed (as you indicate) professionally (only working to your own standards) - when the Landlord fails to act you start to plan a revenge of sorts. Now, none of this detracts from the failing of a Landlord to protect a Deposit (correctly or at all, because it's so, so easy to do) and it doesn't diminish your case, at all... but it's all noise you have trickily presented as some kind of "helpful context". I had a Tenant who sounded just like you - it's scary how much you sound like that man (I do not think you are one-and-the-same, of course)... over a 20 month tenancy I had over 400 emails from him (compared to my usual number of emails from Tenants - say 10 to 20 if that? - and I realised that I was a kind of sport for that Tenant... someone for him to routinely vex)... he expected me to produce annualised rental statements... I actually did!... I put this into an Excel spreadsheet... I didn't even put a total at the bottom (which he fully expected)... I didn't align the cells, I certainly didn't shade them or give them borders... it was all very passive-aggressive.

2016
Month     Rent
Apr          850
May         850... you get the idea...

Once, towards the end of the tenancy, after a power cut, the oven wouldn't turn on... (he'd 'suffered' other power cuts during his time there - one time trying to convince me there was a property-wide electrical issue that needed addressing) and he wrote a blistering email to me informing me of the "extreme urgency" of this "complete oven failure" because he "needed to cook his dinner"... I said I would come to look at it the following day which he didn't appreciate, so I asked if he had set the time on the range (because it's one of those where the oven won't turn on unless the time is set - he knew this, and he also had the manual in the drawer)... he thought I didn't know that, and I would start to panic about it (thinking the 1,500 range would need replacing)... he wrote back, annoyed, shortly - "it doesn't matter, I have fixed it"... hilarious guy.

Anyway... this will become clearer as an overall issue if you break it apart and remove the surrounding particulars... just look at each tenancy in turn and decide what you had in relation to it, whether it was in time, correct, etc.. What you'll have in front of you, then, is a bunch of (hopefully indisputable) facts you can work with. It will also give you the ballpark figure of the bare minimum you can expect.

In your communication (and others - experts in law - may provide advice on this) I might be tempted to add a paragraph saying something like - "I will also be asking for an order to cover my costs. I will be relying on Court rules for pre-action conduct that say you may have to pay more in costs if you ignore this letter." - and then give a deadline... 14 days, 30 days, something... even if that text is not 100%, it may cause someone to react (especially if they aren't engaging specialist advice)... I add this because it seems to be a part you're concerned about... however, I am quietly confident there'll be a different reaction to your letter about the Deposit claim than there would be about multiple, potentially imaginary, property issues.

Good luck. No "booo", honestly - all problems are responded to no matter their source.
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« Reply #7 on: May 12, 2019, 12:31:55 PM »

The tenancy type is also wrong on the certificate.

How?

Speaking of which, MyDeposit, was it their insurance or custodial scheme? If it were the insurance scheme, as there were a new fixed term agreement subsequent (T4), it needed to have been protected again with a new fee paid. If not, I would argue that there was no valid protection for T4 and T5, not just no PI.

It refers to a 'statutory periodic tenancy', when at the time of protection and for a good while after it was an assured shorthold tenancy.

I don't know whether it's insurance or custodial. There's nothing to say either way on the certificate and I can't find a way of checking on the mydeposits website. Perhaps I am overlooking something...
« Last Edit: May 12, 2019, 01:22:20 PM by Beattieeee »
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« Reply #8 on: May 12, 2019, 01:21:38 PM »

Thanks very much for your input, Hippogriff.

During the period after the aforementioned inspection in 2016 the landlord has performed precisely no proactive maintenance, and has responded slowly or not at all to key issues of safety and habitability which have arisen. I won't (unless requested) go into full detail of these here because they are not pertinent to my queries....

Darn-tooting correct... there's so much noise in here which you identify as irrelevant but then proceed to mention it anyway. This is what we call a cleansing, a venting, a character-assassination aimed at someone who's not able to respond.  :-X What proactive maintenance is a Landlord expected to do? I find myself reacting mostly, you see? Otherwise things are just running along nicely, thank you very much.

You're absolutely right that there's an element of venting, I won't deny that. 'Proactive' maintenance...I can happily give examples but as you point out there's already plenty of venting and stuff superfluous to the facts of the breach. The sorts of things I am referring to are early signs of damp, a listed feature of the building which is rotting and so at some point will need repair (a stitch in time and all that) and regular service of things like the boiler and a saniflo system. Neither of which received regular servicing. Both of which then broke. There were many others. Minor things I was always more than happy to tend to myself (with consent of course) but complex or potentially dangerous-if-done-wrong situations for which I am not qualified I reported, as the ASTs requested, and saw no action on.

You do come across as what I call a Slow-Burning-Tenant-Terror... this is the Tenant who's all smiles and joviality at the beginning of a tenancy but - over time - starts to resent paying-out the rent (the mentioned 60,000 is the clue) in return for the perceived value of what you're getting... so you start to raise issues (in your own kind of formalised way) and expect them addressed (as you indicate) professionally (only working to your own standards) - when the Landlord fails to act you start to plan a revenge of sorts.

I would say the resentment only comes when you feel you aren't getting what you've paid for. I was always very clear to differentiate between what I thought of as issues I was raising for my landlord's interest and those I felt required attention. 80-90%, like those above, fell in the former category. Things in the latter e.g. broken saniflo and therefore no toilet (I'm aware that having only a saniflo toilet is against building regs but as long as it worked it wasn't a problem); broken boiler and no hot water in January; rusting/ collapsing metal fire escape. When the landlord then sits on these problems for days, weeks, or years respectively...yes that generates resentment. I'm upholding my end of the bargain being a good tenant, paying rent on time every time, looking after their property as if it were my own, proactively improving it with consent in the small ways I am able to and then being left without a toilet, freezing cold in winter or without adequate means of escape in the event of a fire. I did and do resent that.


Now, none of this detracts from the failing of a Landlord to protect a Deposit (correctly or at all, because it's so, so easy to do) and it doesn't diminish your case, at all... but it's all noise you have trickily presented as some kind of "helpful context". I had a Tenant who sounded just like you - it's scary how much you sound like that man (I do not think you are one-and-the-same, of course)... over a 20 month tenancy I had over 400 emails from him (compared to my usual number of emails from Tenants - say 10 to 20 if that? - and I realised that I was a kind of sport for that Tenant... someone for him to routinely vex)... he expected me to produce annualised rental statements... I actually did!... I put this into an Excel spreadsheet... I didn't even put a total at the bottom (which he fully expected)... I didn't align the cells, I certainly didn't shade them or give them borders... it was all very passive-aggressive.

2016
Month     Rent
Apr          850
May         850... you get the idea...

Once, towards the end of the tenancy, after a power cut, the oven wouldn't turn on... (he'd 'suffered' other power cuts during his time there - one time trying to convince me there was a property-wide electrical issue that needed addressing) and he wrote a blistering email to me informing me of the "extreme urgency" of this "complete oven failure" because he "needed to cook his dinner"... I said I would come to look at it the following day which he didn't appreciate, so I asked if he had set the time on the range (because it's one of those where the oven won't turn on unless the time is set - he knew this, and he also had the manual in the drawer)... he thought I didn't know that, and I would start to panic about it (thinking the 1,500 range would need replacing)... he wrote back, annoyed, shortly - "it doesn't matter, I have fixed it"... hilarious guy.

I hope/ think I am not quite that bad! I think my emails/ letters probably run to <100 over the five-ish years. I can see why it would remind you of this though! Were the tenant and landlord roles reversed, I like to think I would rather have an engaged and consistently communicative tenant rather than one who is quiet and then leaves/ announces a mountain of issues to deal with at the end of a tenancy. I have taken my responsibilities, as per the ASTs, seriously. And I presented an intro to my dissatisfaction with the tenancy and its causes in order to contextualise why I intend to take the approach I do, rather than just advising my landlord of their oversight. Even if not helpful here, If another landlord reads this and as a result resolves to treat their tenant with more respect then it has been helpful elsewhere. :)

Anyway... this will become clearer as an overall issue if you break it apart and remove the surrounding particulars... just look at each tenancy in turn and decide what you had in relation to it, whether it was in time, correct, etc.. What you'll have in front of you, then, is a bunch of (hopefully indisputable) facts you can work with. It will also give you the ballpark figure of the bare minimum you can expect.

In your communication (and others - experts in law - may provide advice on this) I might be tempted to add a paragraph saying something like - "I will also be asking for an order to cover my costs. I will be relying on Court rules for pre-action conduct that say you may have to pay more in costs if you ignore this letter." - and then give a deadline... 14 days, 30 days, something... even if that text is not 100%, it may cause someone to react (especially if they aren't engaging specialist advice)... I add this because it seems to be a part you're concerned about... however, I am quietly confident there'll be a different reaction to your letter about the Deposit claim than there would be about multiple, potentially imaginary, property issues.

Yes. Based on the info above I think I have T1 unprotected deposit, no PI; T2 late protection of deposit, incomplete PI; T3 incomplete PI; T4 incomplete PI; T5 incomplete PI. I'm mindful of KTC's point above about the type of protection and will amend the basic facts if I can establish that type changes them.

The costs paragraph sounds like a good idea. I'd be very grateful if any of the experts Hippogriff refers to would care to give their view.

None of the issues were imaginary. I only reported what I judged as best I could as something in my landlord's interest, something required by the ASTs, or something which formed part of the tenancy I was paying for and for whatever reason not getting. I would stand to gain nothing from making something up, it would serve only to waste my time, so why do it?

Good luck. No "booo", honestly - all problems are responded to no matter their source.

Thank you. I thought that in the spirit of 'initial smiles and joviality' a little pantomime atmosphere might add to my debut post.  ;)

« Last Edit: May 12, 2019, 01:25:59 PM by Beattieeee »
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« Reply #9 on: May 12, 2019, 03:32:51 PM »

I am wiping the tears of laughter from my eyes,this has made my day."An engaged and consistently communicative tenant".Well,that's one way of putting it I suppose.Were all the 100 emails you sent of this detail and length?
Obviously you can claim for non -protection of deposit.I have a feeling this could turn out to be quite a lengthy process.Have you read "Bleak House" by Charles Dickens? The case of Jarndyce v Jarndyce could inspire you.Good Luck,and thank you!
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« Reply #10 on: May 12, 2019, 04:05:35 PM »

Thank you. I thought that in the spirit of 'initial smiles and joviality' a little pantomime atmosphere might add to my debut post.  ;)

Yup; it's all cool - trust me.

For your Deposit issues... I would keep your formal communication to the Landlord really simple - black-and-white, clear-cut, like the case before a Court would be. Don't be tempted to educate the Landlord on all their other failings as I fear it will just get lost and - as you know, and admit - it isn't pertinent to this case where what you're now looking for is s. If a heartfelt apology and a promise to not do it again because the error of their ways had been pointed out was enough, I suppose it would be a different world. I think you need your communication to be concise and precise - punchy, confident and factual. Then open it up for the idea of settlement...

I have read your estimate of 7x... I have thought it's probably quite high, especially the one you estimate at 2.5x... but the fact is - no-one knows what you could get - all you can lay out (if you wish to do so) is what you believe (based on facts alone) is their minimum and maximum liability. It could be different on a different day - it's not predictable.

What was the Deposit value in s, did it vary?

Lastly, in your communication I would spell out that the Landlord is liable, not any Agent they may employ. Some Landlords still think they're protected from this responsibility and - see another thread in the Landlord section - once or twice it might have turned-out that way... but legally, the buck stops with the Landlord (even if they employed an Agent, even if the Agent was responsible for all Deposit matters).
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« Reply #11 on: May 12, 2019, 04:40:19 PM »

Lastly, in your communication I would spell out that the Landlord is liable, not any Agent they may employ. Some Landlords still think they're protected from this responsibility and - see another thread in the Landlord section - once or twice it might have turned-out that way... but legally, the buck stops with the Landlord (even if they employed an Agent, even if the Agent was responsible for all Deposit matters).

As far as the landlord is concerned, that's indeed pretty much the case, but the tenant have the option to sue the the agent instead (or as well as) if they were the one who dealt with everything and especially if they appears to be the one holding the deposit.
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« Reply #12 on: May 12, 2019, 07:51:21 PM »

I am wiping the tears of laughter from my eyes,this has made my day."An engaged and consistently communicative tenant".Well,that's one way of putting it I suppose.Were all the 100 emails you sent of this detail and length?

Glad to have brought joy to your day. No, they weren't. I think it's less than 100, but 100 would be ~20 per year. If I have to chase several times in order to get a response and some matters require discussion rather than being simple question and answer, would hearing from your tenant, say, quarterly, seem excessive? Not to me, but each to their own, I suppose. Shoe on the other foot, how long would you leave a tenant to their own devices once it became clear they weren't upholding their end of the agreement? How often would you follow up with them after they ignored your initial correspondence?

Obviously you can claim for non -protection of deposit.I have a feeling this could turn out to be quite a lengthy process.Have you read "Bleak House" by Charles Dickens? The case of Jarndyce v Jarndyce could inspire you.Good Luck,and thank you!

I have not read Bleak House, but I hope that this process will not span generations. Thank you. I'm always happy to sort things out quickly and efficiently, but that way is much easier if both parties are...engaged and communicative  :)
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« Reply #13 on: May 12, 2019, 08:10:23 PM »

Thank you. I thought that in the spirit of 'initial smiles and joviality' a little pantomime atmosphere might add to my debut post.  ;)

Yup; it's all cool - trust me.

For your Deposit issues... I would keep your formal communication to the Landlord really simple - black-and-white, clear-cut, like the case before a Court would be. Don't be tempted to educate the Landlord on all their other failings as I fear it will just get lost and - as you know, and admit - it isn't pertinent to this case where what you're now looking for is s. If a heartfelt apology and a promise to not do it again because the error of their ways had been pointed out was enough, I suppose it would be a different world. I think you need your communication to be concise and precise - punchy, confident and factual. Then open it up for the idea of settlement...

Yes, my formal communication will be much more efficient; I don't need to familiarise my former landlord with our relationship. Would you consider casting your eye over a draft letter once I have prepared it? This will not be for a little while because I want to conclude the matter of the return of my tenancy deposit, which I would hope to be a quicker process overall, first.

I have read your estimate of 7x... I have thought it's probably quite high, especially the one you estimate at 2.5x... but the fact is - no-one knows what you could get - all you can lay out (if you wish to do so) is what you believe (based on facts alone) is their minimum and maximum liability. It could be different on a different day - it's not predictable.

What was the Deposit value in s, did it vary?

Okay. I suggested 2.5x for T1 because all the rules that could have been broken were, this mistake was clearly not learned from and landlord is not a first time or accidental landlord. I discounted by 0.5x since an agent is involved. Like you say it is not a precise science. If I just take a middle ground between minimum and maximum for the undisputable tenancies T1-T5 (i.e. ignoring what I think probably is a legal thing in T1b and the question of whether T4b exists) it would be 10x, so 7x overall felt...reasonable. I would assume I have to start higher than I want to come out with so maybe that 10x default is that place.

The deposit did not vary, and it was only paid over once - is this important in terms of the distinction between tenancies? As noted above there are standalone ASTs for all but the periodic tenancy so I think it would be difficult to argue that this was all one tenancy. The deposit was a low four figure sum.

Lastly, in your communication I would spell out that the Landlord is liable, not any Agent they may employ. Some Landlords still think they're protected from this responsibility and - see another thread in the Landlord section - once or twice it might have turned-out that way... but legally, the buck stops with the Landlord (even if they employed an Agent, even if the Agent was responsible for all Deposit matters).

Yes, thank you, I will make this clear. The relationship between the landlord and agent is very...undefined and I think flits between friendship and business in nature.
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« Reply #14 on: May 12, 2019, 08:14:19 PM »

Lastly, in your communication I would spell out that the Landlord is liable, not any Agent they may employ. Some Landlords still think they're protected from this responsibility and - see another thread in the Landlord section - once or twice it might have turned-out that way... but legally, the buck stops with the Landlord (even if they employed an Agent, even if the Agent was responsible for all Deposit matters).

As far as the landlord is concerned, that's indeed pretty much the case, but the tenant have the option to sue the the agent instead (or as well as) if they were the one who dealt with everything and especially if they appears to be the one holding the deposit.

For sure it was the agent who dealt with the deposit. Paid to them, they eventually protected it (using their spouse's details). I intend to act against the landlord for both simplicity and since that is where ultimate responsibility lies. Would there be any benefit in suing the agent, or as I have read elsewhere, both?
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« Reply #15 on: May 12, 2019, 09:26:26 PM »

The deposit did not vary, and it was only paid over once - is this important in terms of the distinction between tenancies? As noted above there are standalone ASTs for all but the periodic tenancy so I think it would be difficult to argue that this was all one tenancy.

No. The deposit is legally deemed to have been repaid by your landlord at the end of one fixed term, and you immediatley repaid it back to the landlord for the new tenancy.

For sure it was the agent who dealt with the deposit. Paid to them, they eventually protected it (using their spouse's details). I intend to act against the landlord for both simplicity and since that is where ultimate responsibility lies. Would there be any benefit in suing the agent, or as I have read elsewhere, both?

If the deposit return is being dealt with through the scheme arbitration, not really.
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« Reply #16 on: May 12, 2019, 11:16:38 PM »

The deposit did not vary, and it was only paid over once - is this important in terms of the distinction between tenancies? As noted above there are standalone ASTs for all but the periodic tenancy so I think it would be difficult to argue that this was all one tenancy.

No. The deposit is legally deemed to have been repaid by your landlord at the end of one fixed term, and you immediatley repaid it back to the landlord for the new tenancy.

Thanks for confirming.

For sure it was the agent who dealt with the deposit. Paid to them, they eventually protected it (using their spouse's details). I intend to act against the landlord for both simplicity and since that is where ultimate responsibility lies. Would there be any benefit in suing the agent, or as I have read elsewhere, both?

If the deposit return is being dealt with through the scheme arbitration, not really.

It isn't...yet. Does this mean that there is a benefit, if it does not go to arbitration?
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« Reply #17 on: May 13, 2019, 12:49:57 AM »

Take it to arbitration, get your deposit back less any deduction that the landlord is entitled to, then worry about deposit penalty.
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« Reply #18 on: May 13, 2019, 12:56:44 AM »

Take it to arbitration, get your deposit back less any deduction that the landlord is entitled to, then worry about deposit penalty.

I have given a deadline for return of full deposit (consistent with how the property was left) which I should and will honour, before moving to dispute in the the likely event that this deadline is ignored. As you suggest and is already my intention, only after this will I move on to dealing with the deposit penalties.
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« Reply #19 on: May 13, 2019, 10:55:16 AM »

I have given a deadline for return of full deposit (consistent with how the property was left) which I should and will honour, before moving to dispute in the the likely event that this deadline is ignored. As you suggest and is already my intention, only after this will I move on to dealing with the deposit penalties.

The timeline for return of Deposit is defined within the scheme / law - 10 days? I expect your deadline is in-line with that... but just check to make sure you're not trying to impose anything in advance  (it's possible you may have mentioned this before, but I didn't read back).

On the MyDeposits website it seems to add a grey area (at least to my reading)... Insured example - "You will need to request your deposit back in writing and give your landlord 10 days to respond to the request. You must then allow your landlord the opportunity to discuss and negotiate any proposed deductions to the deposit." and Custodial works differently.

I think it would be wise to check this again... https://www.mydeposits.co.uk/tenants/deposit-checker/ ...is it possible to get more information by calling them? My Certificates (for the DPS as an example) do have Insured or Custodial stamped on them, I know that much.

Quote from: Beattieeee
There's nothing to say either way on the certificate and I can't find a way of checking on the mydeposits website.

But I am presuming Insured, otherwise you'd be able to start the ball rolling yourself from the MyDeposits website... "Either you or your landlord/agent can begin the release process at the end of the tenancy using your online account."
« Last Edit: May 13, 2019, 10:57:09 AM by Hippogriff »
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« Reply #20 on: May 13, 2019, 11:49:57 PM »

I have given a deadline for return of full deposit (consistent with how the property was left) which I should and will honour, before moving to dispute in the the likely event that this deadline is ignored. As you suggest and is already my intention, only after this will I move on to dealing with the deposit penalties.

The timeline for return of Deposit is defined within the scheme / law - 10 days? I expect your deadline is in-line with that... but just check to make sure you're not trying to impose anything in advance  (it's possible you may have mentioned this before, but I didn't read back).

I thought 10 days was for the return once the amount to be returned was agreed? In any case that is what I specified, since there didn't seem to be a definitive timescale for return from request.

On the MyDeposits website it seems to add a grey area (at least to my reading)... Insured example - "You will need to request your deposit back in writing and give your landlord 10 days to respond to the request. You must then allow your landlord the opportunity to discuss and negotiate any proposed deductions to the deposit." and Custodial works differently.

I think it would be wise to check this again... https://www.mydeposits.co.uk/tenants/deposit-checker/ ...is it possible to get more information by calling them? My Certificates (for the DPS as an example) do have Insured or Custodial stamped on them, I know that much.

Yes, I will try giving them a call before trying to launch a dispute. Without wishing to be facetious, perhaps this is all made clear in the leaflet I didn't get (and which doesn't seem to be available on the website) or information which would have been emailed to me if the landlord/ agent had provided my details to the scheme. I assume they didn't, because I have not had any information directly.

Quote from: Beattieeee
There's nothing to say either way on the certificate and I can't find a way of checking on the mydeposits website.

But I am presuming Insured, otherwise you'd be able to start the ball rolling yourself from the MyDeposits website... "Either you or your landlord/agent can begin the release process at the end of the tenancy using your online account."

I think you are right and this is the conclusion I had come to because I require details I don't have in order to log into an account for a custodial protection. Whereas for insured I seem to be able to begin heading down the path of a dispute without this info.

Thanks again for your help.
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« Reply #21 on: May 13, 2019, 11:53:45 PM »

Yes, I will try giving them a call before trying to launch a dispute. Without wishing to be facetious, perhaps this is all made clear in the leaflet I didn't get (and which doesn't seem to be available on the website) or information which would have been emailed to me if the landlord/ agent had provided my details to the scheme. I assume they didn't, because I have not had any information directly.

It's literally the first two results on Google.co.uk when searching "mydeposits information for tenants leaflet"..... One for the custodial scheme, and the other for the insurance scheme.
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« Reply #22 on: May 14, 2019, 12:04:23 AM »

Yes, I will try giving them a call before trying to launch a dispute. Without wishing to be facetious, perhaps this is all made clear in the leaflet I didn't get (and which doesn't seem to be available on the website) or information which would have been emailed to me if the landlord/ agent had provided my details to the scheme. I assume they didn't, because I have not had any information directly.

It's literally the first two results on Google.co.uk when searching "mydeposits information for tenants leaflet"..... One for the custodial scheme, and the other for the insurance scheme.

Thank you. Obviously it's easier to know that if you have seen it before and so can put its exact title into google. It's also far from prominent on the website - which is what I was referring to. I promise I had spent some time looking, even if not well, as it seems is the case.
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« Reply #23 on: May 29, 2019, 12:41:25 AM »

A quick update...

The full deposit has now been returned.

I have prepared a draft letter before action based upon the Shelter template. Do I need to suggest a specific settlement amount in the letter before action or merely that I am open to settlement offers? Would anyone here be willing to proofread the draft?

Thank you.
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« Reply #24 on: May 29, 2019, 09:48:18 AM »

Personally, I would probably illustrate [what you believe / assert / have concluded] is the minimum and maximum exposure the Landlord has, plus costs, and then say you're open to settlement offers. It may be the case that the Landlord isn't aware of how serious their situation is... citing s often help with that. Happy to proofread anything you may send (also easy enough to put it in here with the identifying information redacted).

Them returning the Deposit in full, although it seems to have taken quite a bit of time, makes me ponder about whether they sense something is heading their way and want to head that off by being easygoing, or whether they had never intended to shaft you with this stick... was that easy to achieve, or was it also a trial?
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« Reply #25 on: May 29, 2019, 08:37:52 PM »

Personally, I would probably illustrate [what you believe / assert / have concluded] is the minimum and maximum exposure the Landlord has, plus costs, and then say you're open to settlement offers. It may be the case that the Landlord isn't aware of how serious their situation is... citing s often help with that.

Will do. Assuming I represent myself, what would be a reasonable estimate for costs aside from the initial 308 court fee, or do you mean to actually state "plus costs"?

Happy to proofread anything you may send (also easy enough to put it in here with the identifying information redacted).

Thank you. This is what I have:

Dear <NAME>,

Letter before action: Penalty for failure to protect my tenancy deposit in accordance with the law

I am the former assured shorthold tenant of <ADDRESS> which you rented to me between <DATES>

I am writing concerning the deposit of XXXX.XX I paid to, <NAME>, an agent acting on your behalf on <DATE> as a security against my obligations under the terms of our tenancy agreement.

Penalty for failure to protect my tenancy deposit

Section 213 of the Housing Act 2004 required that you protected my deposit with a government-backed scheme within 30 days of the payment of my deposit. You were also required to provide me with details of the scheme you used along with certain other information (the ‘prescribed information’), also within 30 days.

In respect of our first tenancy agreement, beginning 31 May 2014 and lasting 12 months:

•   You failed to protect my deposit with a government-backed scheme;
•   You failed to protect my deposit within 30 days of the payment of my deposit;
•   You failed to correctly serve the prescribed information within 30 days of the payment of my deposit.

In respect of our second tenancy agreement, beginning 1 June 2015 and lasting six months:

•   You failed to protect my deposit within 30 days of the payment of my deposit;
•   You failed to correctly serve the prescribed information within 30 days of the payment of my deposit.

In respect of our third tenancy agreement, beginning 1 December 2015 and lasting six months:

•   You failed to correctly serve the prescribed information within 30 days of the payment of my deposit.

In respect of our fourth tenancy agreement, beginning 1 June 2016 and lasting six months:

•   You failed to correctly serve the prescribed information within 30 days of the payment of my deposit.

In respect of the periodic tenancy which commenced after the expiry of our fourth tenancy agreement and which ran until <DATE>:

•   You failed to correctly serve the prescribed information within 30 days of the payment of my deposit.

Section 214 of the Housing Act 2004 provides that where the court is satisfied that you failed to comply with your obligations under the law relating to tenancy deposit protection it must order that you pay (to me) a minimum of one and maximum of three times the amount of the deposit amount, per tenancy. In this case the minimum penalty you could therefore be liable for is X,XXX.XX plus costs. The court would have discretion to impose a penalty of up to XX,XXX.XX plus costs. Your failure to comply with the law is very clear and I am confident that the court would find in my favour.

Settlement

I am open to reasonable offers about compensation to settle this matter to avoid the costs of going to court.

If I do not hear from you or we are unable to come to a reasonable agreement by <DATE OF LETTER PLUS ONE MONTH>, I will issue court proceedings in the county court without further notice. In this case, I will also be asking for an order to cover my costs. I will be relying on court rules for pre-action conduct that say you may have to pay more in costs if you ignore this letter.

Yours sincerely

<NAME>

Contact telephone number: #


Them returning the Deposit in full, although it seems to have taken quite a bit of time, makes me ponder about whether they sense something is heading their way and want to head that off by being easygoing, or whether they had never intended to shaft you with this stick... was that easy to achieve, or was it also a trial?

I would say it was something of a trial. It took two letters requesting the return of the full deposit, twelve emails repeating the request which had already been made in writing and explaining repeatedly that it was not for me to make an opening 'gesture' of some of the deposit, and seven text messages arranging and re-arranging appointments for phonecalls which the agent every time failed to keep. Oh, and a hefty measure of patience.
« Last Edit: May 29, 2019, 08:39:34 PM by Beattieeee »
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« Reply #26 on: May 30, 2019, 10:46:13 AM »

I think this is a fine letter... I would probably change "...and I am confident that the court would find in my favour." to "...and the Court would find in my favour." - just to erase any doubt. When using numbers... like "six months" I would be consistent and use numbers - "6 months"... like you do for "30 days". I'd get it sent...
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« Reply #27 on: May 30, 2019, 01:49:45 PM »

Will do. Assuming I represent myself, what would be a reasonable estimate for costs aside from the initial 308 court fee, or do you mean to actually state "plus costs"?

Last time I checked, the LiP rate is 19/hour or a evidence based amount (with limit). Personally, I wouldn't bother unless you actually go to trial.

I am open to reasonable offers about compensation to settle this matter to avoid the costs of going to court.

It's not compensation. It's settlement against their liability for one or more statutory financial penalties. Don't say compensation.
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« Reply #28 on: May 30, 2019, 02:29:35 PM »

Will do. Assuming I represent myself, what would be a reasonable estimate for costs aside from the initial 308 court fee, or do you mean to actually state "plus costs"?

Last time I checked, the LiP rate is 19/hour or a evidence based amount (with limit). Personally, I wouldn't bother unless you actually go to trial.

Don't bother with the specific rates, but do still mention "costs"... because that's the added variable, the extra unknown... if there's no threat of costs increasing the overall exposure, well...
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« Reply #29 on: May 30, 2019, 09:13:43 PM »

Again, thank you both; your comments have been taken on board and then letter sent. Now to await a response, or more likely the end of June!
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