getting deposit back using housing act section 214

[whyme2]

Hi there

maybe someone in the know can help.

basically (without giving away identity)

we have been in a rented house for the last few years. Initially the tenancy was through a letting agent - the landlord sacked the agent half way though the tenancy and to our horror got the deposit from the deposit scheme and lodged it with his solicitor (without our prior knowledge) he then failed to provide a tenancy agreement for the rest of the tenancy.

We have recently moved out. we deliberately handed the property over a day early telling him it was an opportunity to tell us if there were any issues with the property so that we had time to respond. He came and said he was happy and there were no issues

A couple of days later he sent us a letter with over a dozen ridiculous claims about the state of the property .... basically trying to screw us out of the deposit.

I want to know how we can defend ourselves.

I intended taking him to court under section 214 for failing to protect the deposit (without reference to condition of property) which I had understood led to immediate return of the deposit in full, but I have since read about counterclaims regarding condition of property and want to know what to do.

any ideas???

Maybe if I'd called this thread "am I being unreasonable to want to bludgeon my thieving landlord to death with a baseball bat" I would have got more responses

I might be wrong, but your second post comes across as a bit of a moan that early on a saturday morning you haven't had any responses.

On that basis, I can't be bothered helping.

I can't help I'm afraid but you'll have to be patient for replies and maybe 'bump' on Monday morning mn is MUCH slower at the weekends

I'm not an expert but I am a LL and as I understand it, regardless of the state of the house, if the money is not in a DPS then you are entitiled to get 3x the value of the deposit back.

The money has to be in a scheme in order to dispute the state of the house - and in that case you would need photos or a signed letter from LL saying he had taken back posession of the house in good order. He would need proof of the state the house was in when let it like a signed inventory, photos etc.

So you are probably best checking with a solicitor/legal bod but I'm fairly sure I'm right.

Thanks Oreo. Thats what I thought but having looked into it on the web it seems that the LL can counterclaim to avoid paying out. also 3x claims seem to be very complex and hard to win.

as far as Collaborate ..... Thanks for the bump. My second post was jokey but that doesn't always come across in writing ..... don't take life quite so seriously love

I'm not really sure how would be best to go about it. Perhaps speak to a solicitor but that would probably cost more in the long run than you stand to get back.

Have you tried speaking to CAB or shelter.

Also what about the original letting agent? I also understood it that in order to give the deposit back to either LL or tenant, the others permission is required. How did your LL manage that?

I don't think you can claim for 3 x deposit after the tenancy has ended, though I could be wrong about that. Even if you can, the LL can avoid the penalty by protecting the deposit before the hearing, even if they do it five minutes before the hearing starts. You need to go to the small claims court really. Yes LL can make a counterclaim, of course. But he'll have to prove it. It won't be as simple as him saying you can't have the deposit back because you trashed the place and the court just accepting that.

And yes, how the fuck did LL get the deposit back without your consent? Are you sure it was protected- did you get paperwork from one of the schemes? Have you checked with them all? Do not take LLs word for it!

Disclaimer- I'm not a housing solicitor. I do work in the advice sector so have picked up a bit, but if any specialist posts then take their word over mine!

the letting agent who shouldn't have released the deposit in the first place has since gone bust!!!

this is the letter I have drafted thus far .... what do you reckon?

Dear Mr and Mrs Arsehole,

I am writing to request the immediate return of the deposit which is being held by your solicitor in respect of ......... St.

You removed this deposit from the deposit protection scheme without our prior knowledge on ?.....
and have also failed to provide us with a valid tenancy agreement since..........

Section 214 of the Housing Act requires you, as a landlord to protect a tenants deposit by means of an approved scheme. As you have failed to protect the deposit to date, you are in breach of this legislation.

Regarding your letter of ?..... claiming deductions against the deposit in respect of the condition of the property. We do not accept that the property was left in a worse state than when we moved in excepting fair wear and tear and do not intend to discuss this further. As you made the decision to remove the deposit from the prescribed scheme and failed to comply with legislation, you have relinquished the right to dispute our claim to full refund of the deposit.

Please remit the full amount by return. If we have not received your payment in full within 14 days, we will be forced to pursue this at the county court.

Yours faithfully

I'm always hearing how few women lawyers who make Partner. Whenever I see the charmless responses on the Legal Matters board on Mumsnet I'm not remotely surprised.

OP, if you come over to the Property board you'll probably get more support and advice. There are a few of us LLs and ex-LLs on there.

Oreo's advice is spot on. Don't get hung up on the 3x deposit claim - it's primarily meant to act as a deterrant to LLs, not an incentive for tenants to claim more money than they've lost. By all means go for it though, you've nothing to lose and it sounds like your LL needs to be taught a lesson.

The important thing is to get your deposit money back - but the only way to do this, given that it hasn't been lodged with one of the three deposit schemes, is legal action (which doesn't seem to have intimidated you). IMO, in the absence of a check-in and check-out inventory, your LL doesn't stand a chance of keeping your deposit, but it's going to be a long time before you get it back because the legal process for this is so slow.

If you decide to chalk up the loss to experience, be sure to write to the housing officer at your local authority - they're compiling a secret register of rogue landlords and are fully supported by those of us trying to do a fair and professional job

Do write in your letter before action the full amount of the deposit you expect returned, and enclose photocopied proof of your payment (receipt etc).

You should also send a copy of the letter to your landlord's solicitor if you have their details.

Send both letters registered.

Make a complaint to the Law Society about the solicitor handling the deposit (if this element of the LL's story is true, of course). Solicitors should know the law!

thanks thisoldgirl ...... I think I will just claim the value of the deposit and some modest costs as I understand that if I went for the 3x compensation, I could potentially end up with nothing and paying his defence costs

complaint to the law society..... I'm liking this.

basically we have the paperwork for the original dps deposit and a letter from the landlord to say it had been released and lodged with his solicitor

There's a loophole about the time limit on the 3x deposit rewards which does favour landlords, so it does make sense to leave this out of your claim if you're not confident about succeeding.

regarding the preaction letter ....... will my letter do or is there a set format I have to follow?

OP should you include in your letter the fact that you moved out early to give him opportunity to raise any issues, and that he then gave his verbal assertion that the condition of the property was fine? It shows that you have been reasonable and that he has backtracked on his verbal approval.

Sorry - when I say "not confident about succeeding", I mean when you don't have a cut and dried case with a very long paper trail, which would make life a lot easier for you. I've every confidence you'll succeed because your LL has fallen down on so many key requirements

On the counterclaims, can you say hand on heart that the property was returned in the condition you found it less FWT? In my experiece, tenants seem to think the definition of FWT is generous, and it isn't.

Good point, Crystaltits (Also great username!)

Hi, thanks all

I deliberately didn't put the bit in about vacating early because I didn't want to entertain his claims .... this is me claiming against him. he has lost his right to counterclaim as the original agreement says he can only make a claim against the deposit through the DPS.

maybe I am wrong on this though.

As far as the house was concerned, we feel it was in better condition than at the start of the tenancy. was repainted throughout at our expense and carpets shampooed etc. .... he is claiming cig burns on the carpet (we don't even smoke) dirty oven (had it cleaned by an oven company and have invoice) and dust on lightbulbs(!)

It sounds like you know what you're doing, good luck with it all. Bad LLs do my head in, the sooner we all have to be trained and licenced the better in my view

LOL at Collaborate being called 'love'.
I think you'll find that before 8am on a Saturday morning most of the lawyers are having a well deserved lie in after having had a busy week with clients from hell

You've had good advice, hope you get it sorted and get your deposit back.

With regards to the tenancy scheme you are missing a few points to win, firstly u knew it wasn't protected and did nothin until now, u can't now claim it, also it looks like sour grapes.
secondly u had no contract so therefore he doesn't have to protect it. That was a smart move from ur LL I'm afraid.

Lastly and this depnds on where in the uk u live, lodgin with a solicitor is allowed and dps are not mandatory but as I say I don't kno where u live

We are in north west England holidays

We did wonder at the time about the deposit but we assumed the LL was a decent, fair person and it would be okay. I also thought because our contract has gone past the dates written on it we had entered a rolling contract type thing. Surely that benefits us in this case too as if like you say there is no contract then we cannot be held for any damages?

There was a contract once; when it expired the tenants continued on the same practical terms (the only material detail that appears to have changed was the payee ceased to be the agent and became the LL). Therefore a contract did exist at the time the tenant vacated.

In England LLs are required to secure deposits in one of the three schemes except where the tenancy is a licence of occupation or similar (lodgers, holiday lets).

OP did you receive an S. 21 and was it correctly served, or did you give notice to vacate and provide the notice in accordance with the requirements of your original written contract?

holidaysarenice that is incorrect - a contract doesn't need to be written, it can be verbal. Regular rent payments to the landlord plus the taking of a deposit would almost certainly equal a contract. Even in the absence of a tenancy agreement the law still stands.

whyme2 I have successfully taken a landlord to court for the return of a deposit plus the 3x deposit sum and can look out the details and info I used to win the case, plus my thread on another forum where I was given lots of good advice, if you want?

In fact, if you PM me an email address I can send you all the documents and statements I wrote for the court case