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Landlord not responding to LBA

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« on: September 26, 2019, 08:45:33 PM »

Hi there, this website is full of useful information - thanks to all who contribute.  LBA for non-protection of deposit was sent to landlord approx 15 days ago and he has not responded, either to the email or registered letter. Should I sit it out and prepare to go to court?
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« Reply #1 on: October 09, 2019, 11:14:24 AM »

Hello, thought Iíd update on the situation and would really appreciate some guidance.  LL has responded and admitted not protecting the deposit and that it was ď...an honest mistake.Ē  They would like to settle the matter amicably.  A bit of background:  I was a tenant in the property from September 2016 until June 2019.  The house went on the market 18 months after I moved in, an offer was accepted in June 2019 and two days after this the LL issued notice of one month. We contested this and after much wrangling (LL was insistent that they did not have to follow due process due to the contract we had signed) a valid S21 was issued and deposit (which I had paid the tenant whose room I took) was returned.  I was lucky enough to find another place straight away and left three weeks after the initial illegal notice was served.

I signed an AST for six months at the beginning of the tenancy which then became a SPT. Does this mean that LL is potentially liable for a penalty of between 1x3 the amount of the deposit per tenancy?  Iím seeking clarity on this issue as I would like to include this in any response and is it incumbent on me to make an offer or should I invite LL to do this?

Thanks in advance.
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« Reply #2 on: October 09, 2019, 11:39:10 AM »

It is a plus point that your ex-Landlord is engaging, and that they have stated they want to settle.

All you have to do is ensure that the settlement amount is a pragmatic one - for both of you, yes? It does not stop you from explaining to your ex-Landlord that you believe the absolute minimum penalty they would be liable for is 2x the Deposit amount... and the maximum they'd be liable for is 6x the Deposit... you can gently argue about this fact while inviting an offer to settle amicably... but you need to be aware of what you'd settle for, and why you're doing this, right?

Is it 1x, or less, as a slap-on-the-wrist for the Landlord? Or do you fancy wringing everything you can from the situation?

So - first things first - do you have a level (regardless of any information or offers that come to light) that you would be willing to settle for? It sounds like the relationship with your ex-Landlord may have broken-down... but how much revenge do you want to exact? It's not that you're not due a penalty for non-compliance, you are, it's just me trying to get my head around whether you're looking for a tidy windfall, a re-education of someone, or covering unexpected costs you incurred because of what was done [to you].

Have a read of this too... https://nearlylegal.co.uk/2018/03/deposits-dont-fake-compliance-and-the-multiple-breach-issue/ ...I'm not saying the water isn't muddied here, I am just saying this ex-Landlord might be reading the same stuff.

The ex-Landlord should realise a fair and pragmatic offer is somewhere between their minimum exposure and maximum exposure.

At this juncture I think I would be tempted to put the ball into their court and invite an offer... it should quickly allow you to see whether they're being realistic or not. I would keep your response very simple - almost appreciative - and say "you understand that it was an honest mistake, but you now invite a genuine offer to settle"... see what comes back. You never know...
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« Reply #3 on: October 09, 2019, 12:50:20 PM »

I do have a level that I would be willing to settle for and it is the minimum penalty x2 the deposit.  I had to incur unexpected costs due to the serving of the illegal notice as I had to cover that monthís rent (notice was served two days before the rent was due) and I had to pay a monthsí rent and deposit to secure the new place.  At the time, I was signed off work with burn-out and didnít have the headspace or energy to fight when it became clear ex-LL was not prepared to accept the illegality notice served.  It was sheer luck to have found another place so quickly.

For a whole host of reasons, the relationship with the ex-LL had broken down from early on in the tenancy.  A couple of insights would be ex-LL entering the property unannounced and not understanding that 24 hours notice must be given to enter the property, even though this was stated in the contract they issued and not carrying out repairs.  There are more serious examples I could share but Iím mindful this is a public forum and the other tenants may be going down the RRO route as the property was not licensed as a HMO.

Thanks for sharing the link and your thoughts on the matter and I will write a response putting the ball in their court.
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« Reply #4 on: October 09, 2019, 12:56:16 PM »

So... theoretically... if you and your ex-Landlord were to establish and agree (even between yourselves) that their minimum exposure was 2x... you'd not really be settling for 2x... as your expectation should be that a genuine attempt at settlement would lie somewhere between the low- and high-water-mark.

All the other stuff is noise here, obviously... it's just the Deposit Protection angle that matters.

There's an old adage in negotiation that - the first person to mention a number loses - I don't think that's necessarily as risky, for you, here... but I'd still be tempted to see what comes out of this stated desire to settle amicably. You can decide whether it's genuine or not... but I'd not expect something appealing straight off. However, the temptation, for you, will be to avoid pressing for more - whatever the proposed settlement is.
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« Reply #5 on: October 09, 2019, 01:15:26 PM »

Ha!  I won't disclose what I would be willing to settle for, the x2 figure is what's in my head.  I'll explain what their minimum and maximum exposure is and wait and see.  I don't want to screw anyone over but I do want to teach them a lesson.  They behaved appallingly throughout the tenancy and made no effort to acquaint themselves with their responsibilities as LLs.
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« Reply #6 on: October 16, 2019, 07:28:45 PM »

Hello, I've had a response from.. according to ex LL

 - You said you paid your deposit to the vacating tenant
 - The vacating tenant did not represent us
 - You did not seek our prior approval when you paid your deposit to the vacating tenant. This compromised the agreement between us and the tenant.
 - Deposits are non-transferable under the scheme.
 - Under these mitigating circumstances your actions prevented us from securing your deposit.
 - Therefore, the deposit we paid you should be returned to us in full and you should seek the return of your deposit and settlement from the person you paid your deposit to.
 - We will therefore not be making an offer to settle and are prepared to defend this in court.

I don't really understand what's going on here.  I have email evidence of their knowledge and agreement re deposit arrangement.  Any advice gratefully received.
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« Reply #7 on: October 16, 2019, 08:11:55 PM »

You seem to have added a whole load of complicating factors there... is the Management Summary of this that you never actually paid a Deposit directly to the Landlord, but someone else did... possibly someone else who's long-gone? What you have done is some kind of Deposit payment by proxy? I don't know the answer... but it may depend on reasonableness and assumptions. If only it was simple...

Your fallback - and, possibly, only viable route forward - is to go to Court and allow it to rule. The outcome would be interesting.
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« Reply #8 on: October 16, 2019, 08:25:50 PM »

I paid the deposit to the outgoing tenant with the knowledge and agreement of ex LL and I have email evidence detailing conversations between me and ex tenant with ex LLs copied in (they were on abroad on holiday during all this). The previous tenant was leaving 4 months before the end of their AST and had come to an agreement with ex LL to find another tenant (me) to fill the room.  A legal advisor who I saw in relation to the illegal notice said that my paying the deposit to the ex tenant could be seen as making a 'loan' of the deposit to the exLL.  What are the chances of my having to pay back the deposit to the ex LL? 
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« Reply #9 on: October 16, 2019, 10:12:04 PM »

What are the chances of my having to pay back the deposit to the ex LL?

Not going to happen. Just issue the deposit penalty case at the county court making sure you includes all the evidence you've mentioned. You'll be fine. Just as a deposit is deemed returned to the tenant and immediately paid back to the landlord when one tenancy ends and another with same landlord & tenant begins without money actually changing hands, your simple argument is that even though the money went from your e.g bank account to departing tenant, the deposit should be deemed to have been paid by you to the landlord and then the landlord immediately paying it to the departing tenant. This is supported by the landlord's earlier communications and actions such as... *returning* the deposit when landlord issued s21.

If the landlord is being like this, you may as well go to the FTT for the RRO as well for unlicensed HMO.
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« Reply #10 on: October 16, 2019, 11:15:47 PM »

Thank you so much for your reply KTC. 

The letter shook me up a bit and I'm shocked that ex LL doesn't appear to be seeking any advice on their position nor are they going back through their emails to check the accuracy of the assertions they are making.  So much for coming to "an amicable agreement."

I'm not going to respond to the letter but I am going to start collating evidence and get the ball rolling for court.
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« Reply #11 on: October 17, 2019, 10:18:07 AM »

I am confused-if the landlord never received the deposit,why did he return it to you? If he had agreed to the previous tenant collecting it on his behalf,how come he did not query it when it was not passed on to him?
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« Reply #12 on: October 17, 2019, 10:52:32 AM »

Sorry HK, there are emails between the departing tenant and me with landlord cc'd that my deposit be paid directly to the departing tenant to cover their deposit. It wasnít a case of collecting it on the landlordís behalf to pass on to them. Does that make sense?
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« Reply #13 on: October 17, 2019, 07:23:04 PM »

You will learn from this - don't agree to that again. For now, it seems like you're going to have to take it further... I might respond to the letter, though... even just stating you disagree, you don't consider this an amicable resolution and if you don't get a change of stance within, say, 14 days you'll be forced to file a claim. It's always worth trying to keep lines of communication open. It might be the Landlord playing a bit of chicken... if you need to take it all the way, do so... if you win, you won't lose-out of course. I am sure we'd all like to see what happens as it's not as clear-cut / simple as normal Deposit protection situations. The Landlord should be weighing-up the impact of a judgement for costs not going their way too.
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« Reply #14 on: October 18, 2019, 02:43:41 PM »

Hi Hippogriff, I did respond to landlord and I attached the email correspondence regarding the deposit as evidence that they had full knowledge of the arrangement.  I also informed landlord that I will be filing a claim and I'll definitely let you all know the outcome.  Thanks again for all the advice you've given  :)
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