How do I fight back after hearing went badly?

Reply to the comment left by "Jessie Jones" at "24/01/2015 - 10:34":

Thanks Jessie

I think the tenant has a solicitor to represent them judging by their post - so like you if I were them I would employ the services of a solicitor who understands the process - depending where they are I can recommend an excellent guy to do this for them

If it were one of my properties I would be doing it myself - Having been in the arena for many years (I'm not a solicitor) I have not been enthused with the way they perform on occassions, just like when I started my business, I do it better than a lot in my area

I would be very ijntrested to see the progress of this one - I know it sounds awful but this would be a good test of the superstrike case 🙂

From the perspective of defences put forward by tenants, non compliance with deposit regulations is certainly high on the list. It is not that landlords are necessarily doing anything untoward, it simply that through error on their on their agents behalf it can sometimes go badly wrong.

Hi All

Here we go again another landlord getting stuffed by a tenant because of a clerical error or lack of knowledge.

I would like to know why the tenant was being served notice was it because of none payment of rent not looking after property or breach of agreement. Or just the landlord needed his property back. How can any court think it is ok to allow a tenant to stay in a property without paying rent or looking after it.

It seems to me that the deposit scheme is a nightmare I am as stated previously in other discussions about this through no fault of my own I am left vulnerable at present. I hope to return those deposits and get knew agreements in place. .

The people who brought the rules out, said from such a date all deposit must be protected. I had a few deposits at that stage and was told they did not need protected as they existed before the date. I have recently found out that these deposit should now be protected. After that date I took a few deposits issued the certificates with information on them. Now I learn that when the agreements went periodic I should have sent them the same information again I already sent 6 months earlier but do not need to do anything with in the deposits scheme.

When I look at the time and cost to take a deposit I don't bother in most case's. To claim you need an independent inventory at the start and during the tenancy and then at the end. To try and claim for damage. To be told no by the deposit scheme. Best part the tenant does not pay the last months rent any way.

I believe that the deposit scheme should send this information to both the tenant and landlord after all they seem to make money from this scheme. They should also send advice to landlords and keep them up to date.

Here is an example of not taking a deposit.. Tenant moved 18 months ago no deposit taking. They gave notice new year stating they would vacate the house by 18 Jan 15. I went on the 19th keys through door. I went in property changed locks took pictures then cleaned house painted all rooms and lay a new laminate in living room. Total cost to me under £500.

Best part no arguing over deposit no time wasted trying to arrange deposit back to tenant and no risk of being taking to court over a error with deposit.

New tenant loves the house. Signed up on the 19th Jan 15. Is it really worth taking a deposit. And face prosecution while the tenant laughs at the system.

I would like hear other peoples views.

I think it IS worth taking a deposit. We quite often have to use it for the last month's rent and I think if we didn't have it the tenant still wouldn't pay the last month's rent so we'd be a month down each time. I think that if we had ten cases in the last few years where we'd missed the deadline for protecting the deposit, we might face one or two cases within the 6 year period the tenant/ex-tenant is allowed to claim. And if we did protect the deposit, but were maybe a month late doing so, I reckon the judge wouldn't penalise us the maximum 3 months rent, but maybe the minimum 1 month's rent. And maybe the no-win.no-fee firms won't be so keen on these ones if the monthly rent is quite low.... That would be my reasoning on it. Basically, I think we'd lose out a fair bit by not taking deposits and now that we're all a bit more informed about it we are less and less likely to make mistakes.

Whilst totally prepared to be shot down in flames by the legal minds on this forum, surely the Superstrike argument is not valid in this case.

As far as I am aware the matter of re-serving prescribed information has not been argued in court - if it has can we have case details?

My argument would hinge that prescribed information HAS been served. It does not say in the act that the prescribed information has to be served again, only that: a landlord who has received such a tenancy deposit must give the tenant the information and this must be done within 14 days of receiving the deposit - now 30 days.

Even if it is argued that because the statutory tenancy is a new tenancy and the deposit has been refunded then paid back to the Landlord immediately (a spurious argument at best but the crux of Superstrike - it would make more sense to argue the deposit had never been refunded but still related to the old tenancy, but there you go) - the deposit in this case HAS been protected and, as the tenant has the prescribed information from the "previous" tenancy, this has been given to him within 14 days of receipt of the deposit, as he already has it!!

It will no doubt be argued that this is a new deposit and requires new information - which is wrong. It would only require new information if the existing information were at all different, but as the existing information is correct, and the deposit remains protected in the same scheme, then the tenant has the prescribed information as required by law.

Right - so who is going to tell me the flaw in my argument please ...

Reply to the comment left by "Tim Hall" at "26/01/2015 - 10:07":

I think that courts tend to agree that, with the law as it stands, PI must be given again. There have been reports of this in county courts, and the wording of the law is similar re. protection and PI.

"It does not say in the act that the prescribed information has to be served again, only that: a landlord who has received such a tenancy deposit must give the tenant the information and this must be done within 14 days of receiving the deposit – now 30 days."

Well, strictly speaking it does say that the PI must be given again since it says that they must be given within 30 days of receiving the deposit in relation to a specific tenancy.

Reply to the comment left by "Tim Hall" at "26/01/2015 - 10:07":

Well I'm not - especially as the house of lords agree with you and are changing the law at the moment

Romain - thanks, your point is noted.

Has the argument been made in any hearing that the Tenant has the prescribed information from when the original deposit was received?

The amended 2004 Act does not state the PI is required in relation to a specific tenancy, just that the PI must be given to the Tenant within 30 days. Indeed there is no mention of any specific tenancy details being required to be given to the Tenant in the PI, except grounds by which the deposit can be retained at the end of the tenancy and the address of the premises, therefore clearly the PI just refers to the deposit that has been protected.

As all this information has already been supplied to the tenant and the deposit remains protected in the same scheme I would still be inclined to argue that the requirement has been complied with and the tenant has in his possession the prescribed information relating to the deposit.

Reply to the comment left by "Tim Hall" at "26/01/2015 - 11:55":

"Has the argument been made in any hearing that the Tenant has the prescribed information from when the original deposit was received?"

I don't know.
Certainly that would be the one argument that the landlord could try to use in his defence.

A tenancy deposit is for a specific tenancy, and the protection procedure is triggered every time a deposit is received for a specific tenancy.
The Act states that the procedure is triggered "where a landlord receives a tenancy deposit in connection with a shorthold tenancy". This is the basis of the Superstrike decision.

PI must be given "within the period of 30 days beginning with the date on which the deposit is received by the landlord."
If nothing changed you may indeed argue that there was no need to give the PI again. However, strictly speaking if you did not give then again then you did not comply with the regulations...

Romain

I agree the protection procedure is triggered when the deposit is received, although as I have already said my own belief of the definition of "received" differs greatly from what seems to have been accepted.

The regulations however only insist that the Tenant had the prescribed information, and the required information (which does not include tenancy specific facts such as dates) is detailed in the statutory Instrument.

The question therefore hinges on whether the Tenant has been given the prescribed information.

If the crux of Superstrike is that the deposit has been refunded to the Tenant then paid back to the Landlord without any actual physical transaction taking place at the commencement of the new tenancy, the same argument must apply to the prescribed information also, which has been issued to the Tenant already.

Either way the Tenant has the information that has been prescribed and he has received this within the required time frame.