UK Landlord Forum / Life

Hi, looking for some advice or ideas to help with a dodgy agent and landlord.

I resided in the property in question for seven years, and I began experiencing issues with my landlord toward the end of the tenancy.

It appears that four separate Assured Shorthold Tenancy (AST) agreements were signed over the past six years, yet none of the deposits were protected as required.

Upon ending our tenancy, the landlord provided a notice period that was unreasonably short, especially considering our length of residence. We requested copies of the Gas Safety Certificate and the Deposit Protection Service (DPS) certificate. While the landlord promptly arranged for a Gas Safety Certificate to be issued so he could serve a section 21, we found the DPS certificate suspicious. After contacting DPS, we confirmed that the certificate provided was indeed fraudulent.

The property owner resides outside of the UK, though the asset and agent are UK-based. The owner is currently seeking to sell the property as soon as possible. The agent has indicated that any claim I might make regarding the unprotected deposit would be futile, as the property may soon be sold, leaving the owner with no UK assets.

Given that the agent was involved in issuing a fraudulent DPS certificate, would a judge potentially hold the agent liable if I pursued a claim?

You can sue the landlord or agent or both for the unprotected deposit penalties (assuming you gave the deposit to the agent).

Did you pay a new deposit each time you signed an AST?  You refer to " none of the deposits" .

Quote from: wmd666 on November 07, 2024, 09:47:18 PMthe landlord promptly arranged for a Gas Safety Certificate to be issued so he could serve a section 21,

It's worth noting that, if the gas safety check wasn't carried out at the correct time, issuing a certificate now isn't a remedy. The Section 21 would still be invalid.

Quote from: wmd666 on November 07, 2024, 09:47:18 PMThe agent has indicated that any claim I might make regarding the unprotected deposit would be futile,

To quote the late Mandy Rice-Davies, "Well he would, wouldn't he?"

Quote from: wmd666 on November 07, 2024, 09:47:18 PM...notice period that was unreasonably short, especially considering our length of residence...

Length of residence doesn't have a bearing on elongating notice periods per se.

For your Deposit issues, don't be swayed by commentary from the Agent... but the buck stops with the Landlord in the final analysis.

For deposits, the buck can be extracted from an agent.

"In this Chapter [Which is the part of the Housing Act 2004 relating to deposits, the prescribed requirements and penalties]—

(a)references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies"

Quote from: heavykarma on November 08, 2024, 08:47:46 AMDid you pay a new deposit each time you signed an AST?  You refer to " none of the deposits" .

No, the deposit was paid once. He protected it, the immediately (10mins later) unprotected it. Then left it un-protected until May of this year 2024. When I asked for the Certificate, he faked it and we only found out much later.

Quote from: jpkeates on November 08, 2024, 06:32:33 AMYou can sue the landlord or agent or both for the unprotected deposit penalties (assuming you gave the deposit to the agent).

Yes, I have only ever dealt with the Agent and it looks like the agent is a director of the company the owns the house.

Quote from: jpkeates on November 08, 2024, 06:32:33 AMYou can sue the landlord or agent or both for the unprotected deposit penalties (assuming you gave the deposit to the agent).

Interesting, if thats possible it would be a possible solution.

Each new tenancy agreement where the deposit wasn't protected is a potential claim. There's no definitive case that says whether they're all one failure to protect or a series of separate failures, but the first new AST when the deposit wasn't protected't protected is definitely one claim.

Protecting then unprotecting the deposit is a common trick, because it avoids a penalty for that tenancy. But if the landlord creates a new tenancy while the deposit isn't protected, that one gets caught.

Strange, it seems my original post disappeared  or late night post syndrome.

Quote from: David on November 18, 2024, 10:35:24 PMStrange, it seems my original post disappeared

Nope it's just parked round the corner:

https://www.landlordforumproject.co.uk/tenant-life/charging-for-pest-control-after-end-of-tenancy/

Quote from: David on November 12, 2024, 02:11:25 PMThere are two sides to every Tenancy and these are three of the most common issues.

Pest infestation - you do not say ...

There are plenty of definitive cases, starting with SUPERSTRIKE LTD v MARINO RODRIGUES aka Superstrike.

This landmark case determined that there was in effect a virtual return and retake of the deposit which opened up claims to the vast majority of tenancies where an SPT has been created.

It is the case that every claim letter a LL might receive will quote if they have failed to protect a deposit.

After this case there were thousands of claims, in the Deregulation Act (2015) changes were made to the Housing Act so that if a Landlord fully complied with the Deposit Protection Legislation and where specified by said legislation, the rules of the scheme, then all subsequent tenancies would be deemed protected as long as the deposit remained protected throughout those tenancies.

This was deliberate as they did not want to give Landlords a get out of jail free card, anyone here can go read up on the intentions of the legislators on Hansard, in any Court the Judge will always take into account the intentions of the legislators and the decisions of higher courts, in this matter it is easy because the Lords were so clear on their intentions. 

If you think that there are no definitive cases that say whether they're all one failure series of separate failures, then I would argue that first the 2015 amendments to the legislation makes that clear, but also there are plenty of definitive cases that say that sanctions must be paid for series of tenancies.

One issue is that Judges interpret these in their own sweet way; their right to do so was confirmed by case law.  So one might issue sanctions of 3x for the first with 2x for subsequent while another may view the first mistake as an oversight while increasing number of sanctions for each subsequent tenancy.  What I can guarantee is that if you fake anything or do anything shady you can expect 3x the deposit for each Tenancy.

The CRITICAL message for Landlords is to deal with this via the Tenant as soon as possible, avoiding the Tenant engaging a claim firm, in my extensive experience such firms do not work in the interest of their Tenant clients, but rather hike legal charges by entering into lengthy arguments.  When they have run up thousands in legal fees they then drop the amount of sanctions claimed and still get between 25% to 35% of those sanctions.  So it makes sense for the Tenant to settle directly with the Landlord too, if they are reasonable and no fake damages are being claimed.

Also read carefully any pre-action communication of the Tenant, they may have already instructed a claim firm and sending you the letter before action to comply with CPR, once they engage a firm they may not be able to back out without incurring fees themselves.

Often claim firms  get the sums wrong because they use template letters, some do this deliberately to make you argue. While others, in my opinion, exaggerate the claim total by talking about sanctions per "breach" while it is my view that a "breach" is a trigger of sanctions which apply per tenancy not per breach.  Again this is a trap to encourage the Landlord to argue and run up costs.

What Landlords also need to understand is that these ambulance chasers know they cannot lose as you either complied or you didn't, it being a Part56 procedure under Part8 track the loser pays costs, so they will get their legal fees in almost all circumstances.

Also the minimum sanction is 1x per Tenancy, this can work both for and against the LL in negotiation. 

Note also that a claim can come from an SPT, even an SPT between those where a Landlord "creates a Tenancy", SPT's giving rise to a S213 that was the core outcome of Superstrike:

Lord Justice Lloyd:

Introduction and summary

3. The Defendant, who appeals with permission granted by Lewison LJ, took an assured shorthold tenancy of the relevant premises from the Claimant dated 8 January 2007 for a fixed term of one year less one day, at a monthly rent of £606.66, and paid a deposit of that amount under the terms of the tenancy agreement at that time. At the expiry of the fixed term, by the effect of section 5 of the Housing Act 1988, he became entitled to a statutory periodic tenancy on the equivalent terms. On 22 June 2011 the Claimant served a notice under section 21 of the 1988 Act requiring possession. The issue is whether it was entitled to do so, notwithstanding that the deposit, which remained outstanding, had not been protected by being dealt with in accordance with a scheme authorised under the 2004 Act.

The issues on the appeal

Before us, two provisions became the subject of close attention. On Mr Westgate's submissions, section 213 applied so as to oblige the respondent landlord to deal with the deposit in accordance with an authorised scheme within 14 days of 8 January 2008, when the appellant became tenant of the respondent under a new statutory periodic assured shorthold tenancy, the deposit being treated as paid and received in respect of that periodic tenancy when it came into being. Secondly, he submitted that, whether or not that was so, section 215(1) applied in any event in 2011 when the respondent served its section 21 notice, so as to preclude the respondent from doing so.

Does section 213 apply in these circumstances?

27 However, Mr Westgate argued that, when the new statutory periodic tenancy came into being in January 2008, the deposit had to be regarded as being then paid and received in respect of that new tenancy. It is clear from the 1988 Act that what happens at the end of the fixed period tenancy is the creation of a new and distinct statutory tenancy, rather than, for example, the continuation of the tenant's previous status. I do not see that there can be any doubt as to that. It was so held in relation to a comparable provision in the 1988 Act in N & D (London) Ltd v Gadson (1991) 24 HLR 64.

28. That being so, the new tenancy contained an equivalent provision as to a deposit, in replacement for the provision under the express tenancy. In theory the landlord could have exercised its right to use the original deposit to obtain compensation for any breach of the tenancy agreement as regards the condition of the property during the period of the fixed term tenancy, and could have required the deposit to be topped up as necessary. In fact it did not make any such requirement. But the legal position after 8 January 2008 must have been that the deposit was held by the landlord as security for the performance of the tenant's obligations, or for the discharge of any liability of his, arising under or in connection with the new statutory periodic tenancy, not (or not only) in respect of such obligations or liabilities arising under the original fixed term tenancy. How had that come about? It must have been on the basis that the tenant's right to be credited with the deposit at the end of the fixed period tenancy, as well as his obligation to pay, and the landlord's right to receive, an equivalent deposit under the new statutory periodic tenancy, were treated as satisfied by the landlord continuing to hold the same sum of money as before on the same basis as before but by reference to the new tenancy. ....

39. It follows that, on my analysis, the tenant did pay, and the landlord did receive, the sum of £606.66 by way of a deposit in respect of the new periodic tenancy in January 2008, and so the obligations under section 213 applied to the deposit so received." ....

Conclusion

As it is, therefore, I would hold that the landlord did receive a deposit from the tenant of £606.66 on 8 January 2008, and it therefore came under the obligations set out in section 213 as it then stood. Not having complied with those obligations, it was not entitled to serve a notice under section 21 in June 2011. It was therefore not entitled to obtain possession of the premises. I would allow the tenant's appeal on that basis.

Lewison LJ
I agree.

Gloster LJ
I also agree.

Full Judgement is at:  https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html 

As I explained above, the protection needs to be in place continuously from within the first 30 days to the day the deposit is returned.

The claim companies know that the online systems to check a deposit are sometimes flawed, so after the first step is the search on the three schemes, they then get the Tenant to write to each firm asking for clarification of the protection, the scheme will then reply with an email confirming when it was protected and when the protection was ceased.

Unprotecting prematurely is such a daft practice because it denies the Tenant to one of the core reasons for the scheme; the ADR process, which was designed to keep cases out of Courts. 

Eviction specialists will advise returning the deposit to avoid DP failure blocking an S21, often in cash with witnesses filming the return, I advise against this as again it deprives the Tenant of the ADR process. a LL can reduce their sanctions if they protect at the first moment they realise their mistake, there is case law that supports this.

I would strongly caution Landlords from trying any so called "trick" they find online, I have seen them all as have the claim companies, they just make the LL look worse and once caught in deceit the Court will assume all defendant evidence is tarnished.
 
It is a simple thing to protect the deposit, it is free of charge if you use the DPS custodial service and you can do it within your processes, between taking a one week holding deposit and before you hand over the keys, at that handover meeting you get signatures that PI was provided along with all the other statutory paperwork. 

There really is no excuse and I would spare you the profound anxiety you will be exposed to if you get hit with a 9x claim for three tenancies and £10k of legal fees, at the same time for those rogue Landlords out there who think they are above the law I say "payback is a bitch".

Quote from: jpkeates on November 13, 2024, 07:28:36 AMEach new tenancy agreement where the deposit wasn't protected is a potential claim. There's no definitive case that says whether they're all one failure to protect or a series of separate failures, but the first new AST when the deposit wasn't protected't protected is definitely one claim.

Protecting then unprotecting the deposit is a common trick, because it avoids a penalty for that tenancy. But if the landlord creates a new tenancy while the deposit isn't protected, that one gets caught.

https://nearlylegal.co.uk/2023/10/the-multiple-deposit-penalty-claim-question-yet-again/

It's been an ongoing debate for years, and, no there is no definitive case. This one is helpful at least.

Quote from: jpkeates on November 19, 2024, 02:16:51 PMhttps://nearlylegal.co.uk/2023/10/the-multiple-deposit-penalty-claim-question-yet-again/

It's been an ongoing debate for years, and, no there is no definitive case. This one is helpful at least.

Debating is all good fun, but the meter is running once a claim firm is involved.

What do you mean by definitive case, because for me, for a case to be truly definitive it would be a High Court, Appeal Court, Supreme Court or even a Judicial Review.

That Judgement would only be binding on cases in London, although other County Courts might be interested and yet still make their own decision.

I have seen that Judgement used by the claim company and actually managed to get it to work in favour of the Landlord the result of which was a settlement (always the goal).

Considering your argument I am surprised you quoted that one as it confirms everything I said in my previous post

Superstrike is definitive!

Basically in the Judgement you quote the County Court Judge got it wrong and the Circuit Appeal had no choice but to put it right and comply with the Court of Appeal Decision in Superstrike.

"8. In my judgment, the claimants/appellants are right that the court must make multiple awards in this case. I consider that is the consequence of the analysis in Superstrike. Further, it is a consequence that is not undone by section 215B of the 2004 Act." ....

13. "The analysis in Superstrike not being altered by section 215B and that section not applying to this case, what I regard as the consequence of the analysis in Superstrike is not undone by the section. That consequence, as I have said, is that there must be multiple awards in this case. I will therefore allow the appeal and make the decision as to the level of the further award for the failure to deal with the deposit in accordance with an authorised scheme on the commencement of the statutory periodic tenancy.

Once they decided that Superstrike made sanctions apply to both Tenancies the Judges were then entitled to make their own personal decision about the number of sanctions per tenancy.

Over the years there have been many many County cases reported, these are published to help colleagues give good advice and to help construct legal arguments for a more just award, but as I said they are not binding.

There have also been higher Court claims, I have enough to argue for both sides as long as I have a full and frank disclosure of the facts.  It is very frustrating when Landlords or Tenants first approach me with their story but miss out key facts which would change my advice.

What concerns me about your original post is that it might encourage people to argue without realising that arguing with a Tenant will force them into the claws of claim companies and arguing with the claim companies runs up costs.  Usually all can be said in one or maybe two letters at most.

There are many ways to help both Landlords and Tenants achieve a settlement without going to Court and without involving a claim firm, it all depends on how early in the game it starts, but remember it is a "pay to play" venue.

It is also possible but much harder to get both the sanctions and the costs down, (depending on the firm and how long they have been arguing).

Final points, and then I'll shut up.

That analysis is from someone I regard as one of the leading experts in this area of law. When they say it's not a settled issue, I'll go along with that.

Superstrike was definitive, but has been largely made irrelevant by subsequent changes in law. Now that a properly protected deposit doesn't require new protection with the creation of a subsequent tenancy, things are more settled.

But, more importantly, the OP is a tenant, not a landlord. My post was to point out that they may not be successful in making multiple claims, as I didn't want them to rely on that assumption in making a decision in what to do. They seem to be dealing with a delinquent landlord and my answers were in that specific context. My advice to a landlord would possibly have been different.