Okadigbo & Anor v Chan & Anor [2014] EWHC 4729 (QB)
When awarding a penalty for breach of the Section 213 Housing Act 204 requirements for tenancy deposits, the court has a discretion over the amount of penalty under section 214
“(4) The court must . . . order the landlord to pay to the applicant a sum of money [not less than the amount of the deposit and not more than] three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.”
There are no statutory factors set out for the exercise of that ‘between 1 and 3 times the amount of the deposit’ discretion.
So, what factors can, or should, a Court consider?
This was a counterclaim for a deposit penalty in a claim for possession and arrears of rent. At first instance, the Circuit Judge had found a breach of s.213 and had awarded the tenants, Mr O and another, a penalty of one times the deposit.
The tenancy had started and the deposit received on 1 August 2012, for a 12 month term. The deposit was protected, but not until 5 March 2013, and the prescribed information was provided later still, on 8 July 2013. The breach by way of late protection and late service of the prescribed information was admitted.
The Circuit Judge’s reasoning for the size of the penalty was:
“the Defendant seeks a penalty pursuant to Sections 213 to 215 of the Housing Act 2004. Section 214(4) provides that in the event of a breach, and here the breach is admitted, I must award the Defendant a sum of money not less than the amount of the deposit and not more than three times the deposit. The Defendant contends for the maximum sum which would be three times £1,520, a sum of £4,560. The Claimant contends for one month’s rent in the sum of £1,520. I find that the Claimants are not experienced landlords, that this is the first time that they had let out any property and that they were letting out their home. That they quite properly put the matter in the hands of professional managing agents who let them down by not complying with the terms of the Act. I find this case to be at the lowest end of the scale of culpability for non-compliance. And for those reasons I award the sum of £1,520.”
The tenants appealed to the High Court. Their argument was that the Judge exercised the discretion wrongly, placing undue weight on the inexperience of the landlords when set against a serious failure to comply with the deposit requirements for a considerable period of time.
“He [Counsel for the appellants] recognised realistically that there was a degree of mitigation in that the breach had been admitted and that there was in the event full compliance, albeit only after a period of delay. He contended that the discretion of the judge should, therefore, be set aside and that the appropriate order would be a multiple of twice the appropriate amount of rent.”
The High Court dismissed the appeal.
“The judge was entitled to regard the question of culpability as the most relevant factor in determining what order to make and was entitled to find that the culpability in this case fell at the lowest end of the scale for the reasons which she gave. It is not as if the breach was uncorrected and therefore, although the appellants were lacking the protection for a period of some months, in the end matters were put right.”
Comment
I suspect this will not come as a surprise to any of us, except possibly the appellants in this case. There is effectively an unconstrained discretion for the court, within the 1 to 3 times penalty, and culpability of the landlord (or agent), together with protection prior to the tenant raising the issue, was always going to be a factor.
Though if it was the agents handling the deposit, I would have though that the tenants could also have brought a claim against them, as ‘the person who appears to be holding the deposit’. (Draycott & Draycott -v- Hannells Letting Limited [2010] EWHC 217 (QB) ). And professional agents messing up in this way could surely expect far less generosity in the exercise of the discretion. Likewise, experienced landlords.
That said, it may be that the High Court places too much emphasis on the deposit having been eventually protected. As we noted back in the pre Localism Act days of Gladehurst v Hashemi, the purpose of the legislation was indeed to punish landlords who did not comply. The Localism Act amendments made clear that late protection was not adequate. But it is, clearly, open to the court to decide that the punishment could be restricted to a 1x deposit penalty on the basis of findings on culpability.
Without excusing anything, when it comes to this penalty some tenants are greedy and this case illustrates it well…
I think it was a silly appeal. Though there clearly will be some issues to work through on the exercise of discretion.
Was the appeal on legal aid?
If so yet anther reason to end the one sided legal aid system….
No. There is no legal aid for such claims. And ‘one sided’? What a ridiculous comment. A system without legal aid is one sided.
Excellent point!
I personally think the judge made the correct decision.
I see client regularly who wish to take LLs to court for the full 3 times the deposit, sometimes with multiple claims this can amount to £20-£30K
I always advice tenants to claim the full amount but to be mindful the judge decides how much should be awarded.
I also think , again just personal view, that if the tenant in this case had made a claim against letting agent and LL he may have had a different outcome
I disagree with this ruling, because if it had been punctually protected but no prescribed information served on time then it would still have been 1x deposit amount. This is a much more substantive breach because protection was lacking for many months, so how can the sanction be for an amount that is identical in both scenarios?
Now on Bailii
http://www.bailii.org/ew/cases/EWHC/QB/2014/4729.html
Thanks, updated.
Giles
About your last paragraph surely there ought to be an incentive for the Landlord to protect the deposit even if it is late especially in cases where the Landlord protects it as soon as the Landlord becomes aware of the legislation? If there is no benefit from protecting even though late why bother?
There is a benefit in protecting late, so long as it is within the first fixed term. The Deregulation Act changes mean that no further protection, or service of the prescribed information, is needed for any following new tenancy, or statutory periodic tenancy. Pre Localism Act, late compliance would even get people off paying any penalty, though that was shut down.
But the Government view on the introduction of the regulations was that landlords and agents must comply, and ignorance was not an excuse.
Well, as discussed, it is not the case that “no further protection” is needed: The situation is unchanged and depends on the scheme’s requirements.
“so long as it is within the first fixed term”
I think that whenever late protection occurs, even if after the ‘first fixed term’, it will be beneficial because the changes of the Deregulation Act will kick in all the same in following tenancies.
The ‘first fixed term’ is nothing special.
The new s215B refers specifically to “the original tenancy” (hence my shorthand) but (3) would seem to make it apply for any tenancy with a subsequent tenancy. But there would of course be two (or more) breaches and two (or more) penalty claims in such a situation.
Section 215B(1) defines what the “original tenancy” is: It is just the first tenancy for which the deposit was correctly protected and prescribed information given on time, as the deposit is “received” whenever a new tenancy is created.
In case you missed it, I was agreeing! Though not because of (1) but because of (3) “The condition in subsection (1)(a) may be met in respect of a tenancy even if the tenancy deposit was first received in connection with an earlier tenancy (including where it was first received before 6 April 2007).”. And it is not the first tenancy for which deposit ‘correctly’ protected, as the time limits are expressly disregarded, so just ‘protected’ ;-)
Yes, I agree that (3) puts it beyond doubt.
Also no scheme that I know of requires unprotection and re protection. The schemes may require further info and maybe a fee, that is their admin, but no ‘further protection’ is needed if the deposit remains in the same scheme.
Well, there is no such such as “protection” in the law. The law just states that the initial requirements of a deposit protection scheme must be complied with, so that must be what “protection” is.
If further info or payment of a fee is a requirement then, IMHO, that what “further protection” looks like in that specific case.
This has always been the case.
Ah, but but are they ‘initial requirements’ ;-)
In any event, Dereg Act amends – S.215B(1)(f) simply requires deposit to ‘be in the same scheme’ (“when the new tenancy comes into being, the deposit continues to be held in connection with the new tenancy, in accordance with the same authorised scheme as when the requirements of section 213(5) and (6)(a) were last complied with by the landlord in relation to the deposit.”), then (2) expressly deems s.213(3) to have been complied with for the new tenancy (“In their application to the new tenancy, the requirements of section 213(3), (5) and (6) are treated as if they had been complied with by the landlord in relation to the deposit.”).
So there is expressly no need to ‘comply with the initial requirements of the scheme’ again. The administrative requirements of the scheme are a wholly separate thing.
The deposit can only be ‘protected’ and “held in accordance with the same authorised scheme” if the initial requirements of that scheme have been complied with.
Payment a fee or further info is not just an administrative task: If required these are the initial requirements.
That’s the point I was trying to make previously.
Yes but a) compliance with the initial requirements on new tenancy (s.213(3)) is expressly deemed to have occurred by s215B(2)! And b) it not wholly clear that they would be ‘initial’ requirements anyway.
But given s.215B(2) it is academic
What is the impact of Dereg on late protecting landlords? If a LL protects late in the initial fixed term and the tenancy moves automatically to periodic at the end of that term do they regain the use of section 21 without deposit return/deductions, given the “new” tenancy is considered protected in line with the rules? And what is the situation regarding their initial failure to protect in time- I assume that they remain liable for any penalty in relation to the initial breach?
Yes to both. Being helpful types, we actually wrote about it. http://nearlylegal.co.uk/2015/04/tenancy-deposits-where-we-are-now/
Thanks- that IS very helpful!
The legislation seems to have some complicating effects. For example in a situation where a fixed-term AST (with s21 in place at the outset) sees a LL protect late the tenant pre-Dereg could (i) resist the s21 and (ii) claim the penalty, and both of these aspects must be dealt with concurrently under 215(2A)(a) and (b), prior to a valid s21.
Presumably now the late-protecting LL can (i) allow the initial s21 to lapse, (ii) allow the tenancy to go periodic, (iii) reissue a now-valid s21 and then (iv) deal with/attempt to avoid the penalty notice as a separate matter, regardless of when the s214 claim is raised by the tenant.
The old system seemed to quite neatly lock all parties into a settlement of all matters prior to the end of a tenancy. Is that an accurate reading of the change?
I don’t think settling a penalty claim was ever locked in to being settled before the end of the tenancy (at least not after the Localism Act amendments.) Certainly there was nothing in 215(2A) that required that, as (a) and (b) are alternatives.
Once the lower court had made their decision, it would have been a surprise for that decision to be overturned.
That said, I think the rationale of the decision is disappointing in that according to recent research by LiverpoolVictoria, 70% of private sector landlords have only one property in their portfolio. We have a right to expect such landlords to take the effort to get things right – simply allowing them to play, the “I’ve only got one property, I don’t really understand my responsibilities” card, lets them off the hook and encourages hobbyists and rank amateur in the provision of citizens’ homes.
The landlord DID have to pay 1 times the deposit, as well as return the deposit its self. The landlord would also have had legal costs.
The problem is that it is very hard for a tenant to bring a case in the first place as the system is far too complex. Likewise there are far too many traps for the landlords.
Why can’t there just be one website that a tenant can use to check if the deposit is protected – and then remove the requirement for the prescribed information….
Is there any clear definition of Landlord? in the case that the AST between LL and tenant, the LL (who is stated as such and acts as such to all practical intent and purpose) is not the registered Owner, what claim does a tenant have on the Owner for non-compliance of 214
The Owner never therefore being in receipt of the deposit is not implicated in 213, however it is not clear if the Owner can be pursued under 214
The landlord doesn’t have to be the ‘registered owner’ (I presume you mean the person with title on the land registry). Helpful (and a good sign) if they are, but could easily be a let to the ‘Landlord’, who the sublets in turn to the tenant. The Owner would only be relevant if the ‘landlord’ was actually just an agent for the owner (this also happens).
Thanks for your reply Giles
What I’m trying understand is does the person/entity named as LL in the AST (which includes provision for a TDS) have any bearing on who is responsible for the TDS.
The case of sublet seems clearer, but in the case the LL is a block management company that provides a fixed income to the owner irrespective of the property’s occupancy (so not an ‘agent’ in the usual sense), can the owner (not named in the AST ) be rightfully pursed under 214 by a tenant? I wonder what is the strength of a defense that asserts the Owner is not the LL nor the person in receipt of the deposit and therefore the tenant has no claim and should pursue the LL.
This setup is not unusual in the case of leasehold apartments purchased as ‘hands-off’ investments with guaranteed income.
It depends entirely on the nature of the agreement between the ‘block management company’ and the owner. It may be a tenancy and sub-let, or it may be a management agreement (the fixed income point is not definite either way).
The person who can be pursued under s.214 is the person who ‘appears to be holding the deposit’, so could be an agent anyway. See Draycott v Hannells (an old case but still good law on that point) http://nearlylegal.co.uk/2010/02/two-weeks-three-months-whatever-tds-in-the-high-court/
As before, whether the owner is the landlord depends entirely on the nature of the agreement between the owner and the ‘block management company’. The mere fact of ‘ownership’ makes no odds.
Does the Appeal ruling in Gladehurst Properties vs Hashemi still hold? I refer to the concluding points http://www.bailii.org/ew/cases/EWCA/Civ/2011/604.html
” In practice, this means that the grounds for a s.214 application will cease to exist once the lease expires and no order under either s.214(3) or (4) can therefore be made after that date”
I now read your related blog entry with interest, no reply needed
http://nearlylegal.co.uk/2011/05/eviscerated-now-also-drawn-and-quartered/
No, it doesn’t apply since the Localism Act amendments.
In this post you mention who can be pursued for the penalty, but I am also interested in who can apply under s.214. 214(1) refers to “the tenant or relevant person” as applicant, and doesn’t specify that the applicant must be the person who paid the deposit. Are you aware of any case where it has been argued that a tenant/former tenant applicant is illegitimate given that a “relevant person” paid on their behalf? My reading of the wording in 214(1) is that it intends to limit claims to one per tenancy and deposit, rather than restrict who is able apply.
I think that is right.
Thanks.
Hi. I didn’t protect my tenant deposit. Tenant gave me one month notice in January and move out 6 days later. I return full deposit. ^ weeks later a receive letter from court – tenant demand return part rent for last month and compensation for not protecting her deposit. Tenant refuse any negotiations. Any chances to avoid penalty?
The same has happened to me
I just had our court hearing on Monday, regarding our previous tenant asking compensations for the deposit not being protected. We had a verbal agreement with him, at his proposal no the protect the deposit as he is student and needs the deposit money on the day of check out to put towards next property deposit. He promised he will not disappoint us and in 6months he moved out. He left damages and not cleaning the property and when we asked to deduct money off his deposit, he didn’t want to accept the damages left and stated to threaten us that he will ask for compensations 3 times the deposit+ deposit back + interest. We didn’t know at the time how important was to register the deposit, we knew the rules but as we trust people thinking they are truthful we didn’t imagine someone could make easy money in this way and make a job of it…. by sweet talk the landlord and moving elsewhere every 6months. He started his claim 1 year later than he moved out and now 1year and a half later than his end of tenancy we had the court hearing. He was awarded one time the penalty and the deposit back. It was our first court hearing experience and we didn’t know how to build up our case. I read about the rules that the penalty can be avoided if the tenancy ended, and I thought if we register the deposit before the hearing we will avoid the penalty. I am now wondering if we could still appeal on the basis of not knowing about the LOCALISM ACT amendments or if this was not in place at the time of his tenancy term Aug 2013- 31 Jan 2014. Does anyone knows when this act was issued and where can I read about it? Can anyone help please?
The Localism Act 2011 amendments came into force on 7 April 2012. I’m afraid that ignorance of the law is not a ground of appeal.
Hello. I am slightly confused as to how the landlord managed to only have to pay x1 deposit as compensation. Does this mean that if the tenant pays the estate agent and the estate agent fails to protect the deposit until after the AST actually ends, is it not actually better to pursue compensation from the estate agent? Or can you pursue both the landlord and estate agent together separately or as one?
The penalty is one to three times the deposit. It is at the discretion of the court as to how much is awarded, so the landlord (or agent) can argue mitigation. It had nothing to do with who the tenant went after.
Giles,
The above thread is very interesting. I am a LL who has a tenant threatening a s214. I did not protect the deposit because tenancy explicitly states “.. is not an AST this is a holiday let..”. The term was 5 months but tenant kept renewing under same terms for 4 years. The tenant is now moving out and the deposit refund is not in dispute, my feeling is the tenant is after easy money and want to settle for £5k (2.8X). I expect to take this to court (and probably lose!), but are you aware of any cases where holiday let was deemed an AST?
You cannot possibly have a 4 year ‘holiday let’. I would be very dubious indeed about a 5 month ‘holiday let’. It doesn’t matter what you call it, it is a question of fact. If it was occupied as the tenant’s primary or only residence, it is extremely likely to be an AST, regardless of how it was described.
As for what you should do, we do not give advice on individual cases.
Understood. Many thanks.
Our landlord – large landowner concern letting multiple properties – have fallen foul of Deregulation Act 2015 in that we signed 6 month ASL in December 2006 that became periodic in June ’07. Deposit originally paid to lettings agency (not managing agent as landlord employed its own estate manager) who informed via letter that: ‘deposit will be held in safely bonded account for the duration of tenancy…this is held by us on the Landlord’s instructions as their agents and not as stake holders’. In August 2014 estate manager retires and landlord engages established nationwide/ global property agent to manage all properties. We assume our deposit had been transferred over to them but receive no information on the issue. In March 2015 the original lettings agent shuts shop, owners disappear and become subject of police enquiry (stole off with landlords and tenants monies as reported in local news).
When we learn of this in May the same year and we request managing agent and landlord to confirm our deposit was transferred over before the agent shut down. Both choose to ignore request despite two reminders via email.
The Deregulation Act 2015 is then brought to my attention just a month or so back and we inform landlord that will be claiming compensation as result of breach of the Section 213 Housing Act 204. The agent replies that our deposit was in the hands of the landlord all this time (am rather dubious of the claim) and that they, the current managing agent, have now protected it – yes, but almost 8 months past the June ‘15 deadline – and claim that we can no longer claim compensation. My personal opinion is that we have a very good case for the full 3 x comp especially in light of our requesting where it was located pre-deadline last year and that both agent and landlord are both deeply established and have no excuse for their ignorance re: Deregulation Act requirements. .
I seem to be missing something here.
S.214(4), Housing Act 2004 seems to be quite clear that it is mandatory for the judge to “…..order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.”
Where does the above-stated discretion (to order a sum of money of between 1 and 3 times the deposit) arise?
You appear to be looking at a wrong version of s.214(4). After the Localism Act 2011, it reads
(4) The court must . . . order the landlord to pay to the applicant a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.
Ah yes, didn’t see s.184(9)(b) hiding over there in the corner. Many thanks, Giles – it comes to something when the government’s own website is woefully behind the times!
We moved into a property in October 2015. The landlord named on the AST was not the landlord (his daughter) that we dealt from the onset as he was an elderly gentleman and hospitalised from the start of our tenancy then sadly passed away 3 months later in December 2015. His daughter dealt either directly with us or via the estate agent as it was a fully managed letting. We now have a huge deposit dispute as well as I have now discovered the law regarding deposit protection in which they protected 3 months late. My question is…who is liable for this now? Is it his daughter (who has acted as our landlord from day one and has been referred to as the landlord by the agent? Or is it the agent? And what if any consequences/ramifications will there be in our claim because the named landlord has died?
We can’t give individual advice through the site, I’m afraid. And there are other things we’d need to know anyway. I’d suggest you seek advice.
We moved into a property in October 2015. The landlord named on the AST was not the landlord (his daughter) that we dealt from the onset as he was an elderly gentleman and hospitalised from the start of our tenancy then sadly passed away 3 months later in December 2015. His daughter dealt either directly with us or via the estate agent as it was a fully managed letting. We now have a huge deposit dispute as well as I have now discovered the law regarding deposit protection in which they protected 3 months late. My question is…who is liable for this now? Is it his daughter (who has acted as our landlord from day one and has been referred to as the landlord by the agent? Or is it the agent? And what if any consequences/ramifications will there be in our claim because the named landlord has died?
Bella, you already asked this and I replied saying that we can’t advise on individual cases through the site.
Thanks for your response. I think you may be confusing me for someone else as I only asked this once. Many thanks anyhow.
Oh I see what you’re saying, I think it may have been a site error that it posted my comment twice.
Hi Giles
A lot of info here, thanks for your input.
I read comments here regarding claims by tenants being avoidable once the tenancy has ended, can you elaborate on the full details of that area for me please?
KR J
They were till April 2012. They aren’t now.
Hi Giles thanks for your response. So they are not avoidable, is there a time limit after the tenancy? I can imagine that a tenant would not want to activate a claim while still in the property to avoid unwanted hassle with the landlord, but I also imagine there must be a cut off point once a tenancy has ended.
It is an interesting question. Could be 6 years if a simple money claim, but if not treated as a simple money claim (as it is a claim for a penalty sum to be determined by the court) there might be an argument that it counts as an action under a speciality, in which case 12 years.
So what do you think the top 3 factors are in deciding how much to award a tenant. Multiple non protection? Landlord Experience? Dishonesty? Not giving prescribed information? First Offence?
John Doe, in my experience the conduct of both parties IS a factor.
The law is the the law, but the Judge is human and also may be prone to errors. Both parties “tell a story” if the tenant says a landlord did not complete repairs, failed gas safety check and entered the property without their permission then that might lean a Judge.
At the same time a Landlord might say a tenant is doing this that and the other.
Even if they stick to the law the factors that affect the amount can be
Date deposit was finally protected
PI failure
Date legally correct PI was served
Failure to reprotect (issue new PI with diff dates)
An insurance backed protection being made but ending without notice to Landlord as arranged by agent
The case this blog is about does NOT say that an Agent is in itself mitigation merely that the DJ had the right to consider mitigation.
Any reference to it can only help if someone is seeking mitigation because it shows a higher Court considered such things.
You are always advised to use a solicitor. Even just in these comments you see people relying on the original draft despite the fact that it has been amended numerous times.
If the original tenancy was started in Feb 2016 for a year and the deposit was secured late with no PI. Then the landlord offered another years lease, at a higher deposit, and didn’t secure, but had the previous deposit secured still, is that two claims? Or just one claim for the first failure to comply?
If the new tenancy was entered into and a ‘top up’ deposit was demanded and paid, sounds like two. If the new tenancy and top up deposit was just demanded, but not actually carried through, only the first claim
If the original tenancy agreement was from Jan 14-15, then a breakaway clause was added and another tenancy agreement signed for Feb 15-16 and then it went into periodic monthly till Jan 17 but deposit was not protected from start Jan 14 to end Mar 17. Is that 3 claims?
I have no idea what you mean by a ‘breakaway clause’. But looks like three claims, yes.
My comment doesn’t seem to be posting, gonna try one last time:
Thank you for the reply Giles, much appreciated ! :D
I mean, LL added a clause that T or LL could terminate the contract in 6 months with a notice, in a fixed 12 month term.
Could one argue that there are 4 claims, in that Jan 16 – Feb 16 was periodic?
Sorry, you were automatically flagged as spam for some reason!
No, I can’t see that a break clause would be a further protection trigger. If not used, then the fixed term just continues.
I thought there was a Feb 15 to Feb 16 agreement? Or do you mean that the Feb 15 agreement did not follow on immediately from expiry of Jan 14 to Jan 15 fixed term?
If the landlord insists on an increased deposit at renewal, but doesn’t secure the increase (initial deposit remained secured), would they be in breach of the legislation?
Yes. Any additional deposit must also be protected.
Bizarre!
Thank you for your response.
I mean it did not immediately follow. Say the first fixed term was 01/01/14 – 01/01/15, the second agreement is signed for 01/02/15 – 01/02/16. Would 01/01/15 – 01/02/15 be considered periodic tenancy, hence 4 claims?
If T claims for 4 and there’s only 3, would the T be penalised by the court? On the other hand, if T claims 3, can the court award 4 if it’s pointed out at a hearing/ the judge picks up on it?
Also, can the claim be made at any county court or does it have to be the one where the land is situated?
A stat periodic would automatically arise on 02/01/15.
T might lose out on some costs if found to be overclaiming. T would not be awarded 4 if claimed 3.
I am seriously not going to advise on county court procedure… You can look that up anywhere! (CAB, Shelter, Gov.uk etc)
Chase, in my experience Judges are getting a bit fed up with people overdoing it and so awarding the minimum per claim and some even not counting a stat periodic, they know this leaves them open to appeal, but some figure the tenant is not going to take it to appeal and risk costs.
Also before running off to Court you must follow Pre-Action Procedure, at the very least write a letter attempting to settle the matter. It is ALWAYS better to settle at a reasonable figure.
Put yourself in the Landlords shoes, if you made an honest mistake you should of course be punished but once is enough and 1x deposit is still money you never had or expected.
Thanks Giles.
Thanks Phil. I am not running anywhere, just to give a little context;it was initially the LL who tried to keep all of the T deposit for alleged damages. T then found out about TDS and asked to use ADR service, LL responded with damages costs of £5k+; T made LL aware of failure and asked for return of deposit; T sent LL a LBA; LL responded with threat of counterclaim that now went up to £10k+ with no cost breakdown or evidence. LL also harassed T with further letters, phone calls, threats of criminal proceedings, etc.
TLDR: this LL has not made an honest mistake; its a LL from hell.
Chase
It is the same old story, I call them “Revenge Sanctions” and “Revenge Damages”, well both sides will be helping the mortgages of Solicitors if they do not settle.
I think the Landlord has more “threat” power but the tenant is the one standing on safer ground. Damages are subjective, hard to determine and even harder to enforce. On the other hand Sanctions of at least 1x the deposit per tenancy on the other hand are the minimum.
The Landlord is in the anger stage of his loss, if he wants to actually spend £5k on legal fees suggesting that damages are at the magic £10k limit of small claims track, the Judge will see that for what it is.
What the claims companies do is use Part 8 for a quick and dirty decision on the Sanctions which gets them their fees and the Sanction which they take 35% of under conditional fee arrangement.
The Landlord being a “civilian” usually not be aware how to deal with Part8 and could end up wondering WTH happened.
If it is a LL from Hell the Judge is very likely to take that into account as they seem to do with Tenants who do not pay rent. Quiet enjoyment, Harassment, Repairs, all stronger if history of reports to Local Council, actually really important if Landlord is a rogue so that they can shut them down.
Although demoted to Local Trading Standards after dissolution of OFT, the 2006 guidance (OFT356) very useful in these situations as a benchmark when LL from Hell adds silly terms.
Hopefully both sides will come to their senses and settle.
Thanks for your comment Phil.
Revenge Damages sounds about right. The LL in this case is a professional LL with company lawyers. However, LL hasn’t followed any procedure even when it comes to inventory checks, in addition to the fact T hasn’t caused any damages. T will not be hiring a solicitor as T feels they’ve done nothing wrong and have sufficient evidence. LL lawyers refuse to believe LL has broken any law/ acknowledge deposit schemes and claims T is trying to cheat the system to get money, hence LL will not settle.
Chase
No lawyer is going to admit any sort of liability.
There is no cheating, either the deposit was protected and PI served within 30 days or not. You simply need to search the three schemes online.
I despise the way claim companies are now going after this area of law because they never seem to want to settle, just get their fee or use the fear of it to get bigger payout.
My advice is always to use a Solicitor if the other side are using a Solicitor, I have seen a tenant with a perfectly legitimate claim make a mistake, get advised by helpline to appeal and end up with £9k of fees (no arrears) and still not win because of a technical issue.
It is like getting into the ring with a boxer or going yourself.
The Tenant could do no better than call Anthony Gold Solicitors of course, but ideally settle.
The LL will have far more respect receiving a letter from Anthony Gold and much more likely to settle, dropping the spurious claim for damages in the agreement to settle.
If the LL really is a LL from hell and has done any of the following then an RRO is an option
Failing to obtain the correct licence
Violent re-entry;
Unlawful eviction or harassment;
Failing to comply with an Improvement Notice served by the local authority;
Failing to comply with a Prohibition Order served by the local authority;
Where the landlord is in breach of a banning order.
You may find this article of interest for a rent repayment order.
http://www.anthonygold.co.uk/latest/blog/rent-repayment-orders-i-tenant-can-i-get-rent-back/
Thanks again Phil.
Exactly, T’s deposit wasn’t protected.
I appreciate the advice but as you said, it was either protected or not, and in this case it wasn’t. Not sure how the T can go wrong? Also, weren’t you saying solicitors are just looking to make money, take their cut, etc.?
Phil, could you perhaps share what the mistake/ technical issue was or related to? Maybe you and/or Giles can point me to some cases where the T wasn’t awarded anything even though the LL hadn’t protected the deposit? Would be much appreciated :). The only case I can find is Fox v Hill 2010, where T’s claim was dismissed for using the wrong form. I assume T in that case would’ve claimed again using the right form, and just lost out on court costs?
Chase, if you look at the comment form, it says we can’t give advice on individual issues.
I thought it was generic, thanks anyway :)
Chase
First of all, Solicitors are not about “taking their cut” as you so eloquently put it. They are about helping people resolve matters, ideally amicably with settlement but if necessary in Court by reading and interpreting complex law.
I find it disappointing that you are given plenty of free legal guidance on this blog and even having point of law clarified, but you then disparage the profession because you do not get what you want.
I agree with Giles about personal advice or advice that might identify a private case in a district or circuit court, I have given you all help you need, the best of which is to settle or consult a solicitor.
Good Luck with your case, I hope you get the justice you deserve.
Thank you for your comment, Phil.
I actually asked ” weren’t you saying” that in your earlier comments. To quote: “both sides will be helping the mortgages of Solicitors if they do not settle” and “which gets them their fees and the Sanction which they take 35% of under conditional fee arrangement.” I was trying to clarify why you changed your stance.
I also find it disappointing that you accuse me of disparaging the profession when I have not done so. I’m not sure what you mean by I didn’t get what I want? As far as I am concerned Giles clarified the point to me and I thanked him for that.
As I said to Giles, I didn’t realise I was asking for something considered an individual issue, again I thanked him for taking the time to reply to me.
Thank you again. I will put my trust in the legal system.
No worries Chase
I was referring to claims companies, I hate what they are doing to the law.
As for helping mortgages, that was referring to intransigent Landlords or Tenants who do not settle.
The thing to understand about these situations is that the Tenant is losing their home, it is one of the most stressful events one can go through in life, creating a profound sense of LOSS.
For this reason I always suggest to Landlords that they deal with people face to face, with kid gloves and that they give the Tenant some dignity.
Tenants going through that LOSS get stuck on the anger stage and hit out at the Landlord.
Now if a Landlord is really a Landlord from Hell then I guess they need to be punished where they break the law, but if they are novice Landlords and just made a single mistake that has tumbled on then it is right that the Judge has a way to recognise that or better still for the Tenant to recognise it and settle.
As I said, I wish you luck and all the justice you deserve.