Worried Landlord now no win no fee solicitor is involved

Reply to the comment left by "Asif Ahmed" at "26/04/2017 - 08:51":

Asif
It appears that the landlord referred to the wrong deposit protection scheme and as such the Prescribed Information was not correctly given within the required 30 days.

Reply to the comment left by "Ian Narbeth" at "26/04/2017 - 09:25":

Alan
What do you mean "referred" to - the deposit certificate was from one scheme and the tenant handout was from another ? That would be a bit of an error but the concern is are we going down the path of typos, not using the approved font ?

Reply to the comment left by "Asif Ahmed" at "26/04/2017 - 10:33":

The worried landlord said: "Whilst we did outline in our tenancy agreement the contact details of the DPS unfortunately in the prescribed information we have errors and refer to the Tenancy Deposit Scheme not the DPS."

I think this is a material error because the deposit was not with the Tenancy Deposit Scheme.

Paragraph 2(1) of the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 requires, among other things, the following to be provided:
"the name, address, telephone number, e-mail address and any fax number of the scheme administrator of the authorised tenancy deposit scheme applying to the deposit;"

If the deposit is administered by one scheme but the landlord tells the tenant another the requirement has not been met. It is not just a matter of a typo. The prescribed information form was wrong. It is not corrected by telling the tenant that the AST referred to the right scheme administrator.

Agreed Ian. It is a fundamental error and one which a Judge would not excuse. And it's not just one that landlords make. I took a tenancy over recently from another agency and when I examined the paperwork found that there was no record of the Prescribed Information being signed by the tenant or served on them. The landlord did not have a copy and neither did the tenant. So deposit repaid, new tenancy paperwork done and deposit re-protected with fingers crossed that tenant does not come across the "no win no fee" vultures.

Reply to the comment left by "Gary Nock" at "26/04/2017 - 14:15":

Thanks Gary
Just one point from your reply. It is desirable but not essential that the tenant counter-signs the Prescribed Information form. We send a copy of it to the tenant by email as well as hand delivering to provide evidence that it was sent. Thankfully we haven't had to fight a tenant over a form yet.

Thanks Ian. I prescribe to the mantra of Michael Mansfield QC
( who fortunately I never came up against in Court) who said "If it's not written down it didn't happen" So I book tenants in, get them to sign all the paperwork- tenancy agreement, DPS and inventory- and initial each page. Perhaps over the top I know and as a smaller agency we can do that. But never been challenged on paperwork in County Court. Yet.....

This is a very interesting read, but it could be that the landlord in this case just referred to it as a 'Tenancy Deposit Scheme' rather than a 'Deposit Protection Scheme', I don't think from the original post this is clear and since the poster has not made any further comments we cannot know!

If we look at the government website, it tells us of the 3 approved schemes:

Deposit Protection Scheme (DPS)
My Deposits
Tenancy Deposit Scheme (TDS)

However, if we look at the actual government website at https://www.gov.uk/tenancy-deposit-protection/overview we can clearly see that the government refer to it as 'Tenancy Deposit Protection (TDP)' and its referred to again at section 2 which deals with the prescribed information, but in The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 its referred to as '(c) For the meaning of “tenancy deposit scheme” see section 212(2) of the Act. Could it be that he's merely referred to it as a 'Tenancy Deposit Scheme' and not placed it with DPS and then provided information from TDS? Just a thought.....

Hi everyone,

Thank you so much for all your comments and I am sorry I have not replied, to be honest I have found this forum quite difficult to log on and find out how to reply to comments - it keeps asking me to log in.

In summary to your questions and advice..

- we have been advised that our house (not landlord) insurance may cover legal advice so this coming week we will hear if we can access some advice

- I bought the property over 18 moths ago so the tenant was a sitting tenant and so signed a new AST with us and her DPS registered deposit was transferred to us. Unfortunately we thought that the prescribed information was a generic document that covered all govt backed deposit schemes and so we used an old one that we had for a property we managed some years ago. Whilst the summary clearly says her deposit is with the DPS and gives full contact details, further into the document it starts referring to TDS. She has a copy of this prescribed information as it is attached to her AST.

To complicate matters we are also going through arbitration regarding her deposit as she basically made big hols in walls / didn't leave the house as she found it so there is £230 being disputed. This began before we heard about the potential compensation regarding the prescribed.

We will wait to see if we can get legal advice but if not it appears we have two options

1. try and negotiate with the shark solicitor as essentially we have not given her the correct prescribed information even though there is evidence to say that she knew where is was being protected, it was protected so no material losses occurred.

2. we maintain that she has not suffered from any material loss; she did know where it was kept; we rely on if it goes to court the judge will see this for what it is - a band wagon that no win no fee sharks are jumping on and trying for an opportunistic claim.

I do however appreciate that in theory we have broken the rules but can't help thinking our tenant has not been exposed to any risk so a heavy fine would be unreasonable.

Any thoughts much appreciate and I will keep the forum updated as this seems to be a topic of interest.

Many tks

Reply to the comment left by "holly rawlings" at "30/04/2017 - 16:31":

Hi Holly
You write: "we maintain that she has not suffered from any material loss; she did know where it was kept; we rely on if it goes to court the judge will see this for what it is – a band wagon that no win no fee sharks are jumping on and trying for an opportunistic claim.

I do however appreciate that in theory we have broken the rules but can’t help thinking our tenant has not been exposed to any risk so a heavy fine would be unreasonable."

Please re-read my earlier posts. I am a solicitor. I am afraid the fine has NOTHING to do with whether the tenant was exposed to any risk or even read the form. Nor will the court criticize the lawyer for an opportunistic claim. The tenant is, as the court sees it, simply exercising the legal rights that Parliament has bestowed on him. If the Prescribed Information rules are not followed the judge MUST order a penalty of at LEAST one times the amount of the deposit. He has no discretion. The landlord could be a saint and the tenant a rogue who has smashed up the property, stolen the furniture and not paid any rent. He still gets his fine. Lobby your MP if you think this is unfair but it is the law. Your best bet may be to try to settle at one times the penalty.

This was a really interesting read. Do we have any updates on the outcome?