Tenants legal help : making a tenancy deposit claim

If you want to bring a claim against your landlord because he has not protected your deposit you may find it hard to find someone to act for you.  Most of us who used to provide fixed fee services for tenancy deposit claims, have taken them off the market because of the current uncertainties in the law.

However tenants are still having problems with their landlords regarding deposits and will want to make claims.  So I set out here some guidance on the basic procedure when bringing a claim for the penalty of three times the deposit sum. To help you, if you decide to give it a go.

Before you do ANYTHING, read this blog post here, which sets out what I understand to be the state of the law as at the time of writing this blog post. You should also read my more recent post here.  Be aware that the landlord is now able to protect his position in most cases by protecting the deposit late.  If this happens, your claim will be limited to the deposit money itself.  This is less likley to happen if you have vacated the property.

Note that this blog post is dated 18 April 2011.  If you are reading this some time later (for example via a search link), please check later posts on this blog as the law may have changed.

It is assumed that you have already written to your landlord or agent requesting payment, and that your request has been ignored.

1. Check your tenancy type.

Make sure that your tenancy is an assured shorthold tenancy. Only deposits paid for ASTs have to be protected.

2. Check with all three tenancy deposit schemes.

Get written confirmation that the deposit has not been protected with them. The three schemes are:

• The Deposit Protection Service, www.depositprotection.com, tel: 0844 4727 000
• My Deposits, www.mydeposits.co.uk, tel: 0844 980 0290
• The Dispute Service, www.thedisputeservice.co.uk, tel: 0845 226 7837

3. The precise court procedure to be used is unclear

Before the court website was changed recently, there was a note on the HMCS site which said that claims in respect of the tenancy deposit regulations should be made using a procedure known as ‘part 8’ (becuase it falls under part 8 of the Civil Procedure Rules).

I can’t find that note any more.  The only reference I can find to claims under section 214 of the Housing Act 2004 is in (f) of 56.1 of the CPR here.  I assume that tenancy deposit claims still need to be made under Part 8, but as the rules do not seem to say anything, I assume that if people bring a claim under the ‘normal’ procedure, they will not be penalised.

If anyone has any information about this please leave a comment.

4. Collect your evidence

With a part 8 claim you need to submit all your evidence with the claim form when you issue proceedings.  Even if you are using the standard procedure, it is not a bad idea to do this too.  Your evidence should include some or all of the following:

• The tenancy agreement, and where appropriate the renewal documentation
• Proof of payment, such as a receipt (this is not essential, but you should produce it if you have it)
• Letters from the tenancy deposit scheme administrators confirming that the deposit is not protected under their scheme
• A statement from you giving further information about your case to the court. This is not absolutely necessary

5. Complete the claim form

You need to start by saying that you are an assured shorthold tenant and that your claim is against your landlord (and/or your landlords agent if the deposit was paid to the agent) and relates to the tenancy deposit.

Then say that

• the deposit was paid by you to your landlord, but was not protected as required by section 213 (1) of the Housing Act 2004,
• and/or the landlord/agent failed to comply with the initial requirements of an authorised scheme as required by section 213 (3),
• and/or the landlord/agent failed to serve on you any notice providing the prescribed information as set out in section 213(4) within the notice period of 14 days as required by section 213(6).
• (DON’T just copy this wording verbatim – it will need to be adapted to your circumstances.  You can see the relevant sections of the act here)

Then say exactly how much you are claiming. You will be claiming two things:

• a. The return of the deposit and
• b. The penalty payment of three times the deposit sum

If you have  vacated the property and are prepared to agree one or more of the landlords deductions, say so, and deduct this sum from a. It will not affect b.

Refer to your supporting documents at appropriate places, give them an identifying letter (A, B, C etc) and attach them to the claim form when it goes to court.

If you are using the part 8 procedure you need to say (in a separate paragraph) that Part 8 of the Civil Procedure Rules applies to the claim.

The wording of your claim should be brief and formal. If you want to tell a story this should go in a separate statement.

• DO put your claim clearly and succinctly in numbered paragraphs. If possible it should be typed as this will make it easier to read. If you must write it in handwriting, make sure it is very clear. But if at all possible it should be typed. Leave some white space around your paragraphs (as I do on this blog post) as it will make them easier to read

• DON’T be long winded and wordy or give long lectures about what the law is (the Judge will NOT be impressed, he will just be irritated). You should also avoid any personalities – however much you dislike your landlord and consider his behaviour unreasonable, this is not part of the claim.

Interest: You will also want to make an interest claim. Your right to do this arises under section 69 of the County Courts Act 1984 and the current statutory rate is 8% pa.

6. Don’t draft up the forms and send them off in a rush.

Wait at least 24 hours before you post them.  If possible  get some legal help from a qualified litigation lawyer, preferably with housing work experience.

7. When sending the papers to the court:

You will need to send a copy for the court and a copy for each of the defendants (if there is more than one).

These extra copies will be sent by the court to the defendant(s) after the claim has been issued. If you don’t include them, the court will probably reject the claim and send it back to you.  Which will delay things.

You will also need to pay the court fee – you will need to look this up as the amount will depend on how much your claim is for.

8. Afterwards

The court will send you various notices telling you what you need to do. Needless to say you should do what they say. There may be a court hearing.  If so, you will need to attend this. You will find guidance on attending court hearings here.

Thats it! Leave a comment below and let me know how you get on. HOWEVER:

Important note/disclaimer

These notes are provided to be helpful and to give you an idea of what you need to do. They are not a complete guide – I don’t know the facts of your case. I will not therefore be liable if you use them and don’t succeed in your claim.

If at all possible you should take legal advice from a qualified litigation solicitor, preferebly with housing experience, before issuing proceedings. Be aware that the law is unclear at present so whether you win or lose will depend on the precise facts of your case and the view the Judge takes of them.

Bringing court proceedings is a serious matter and should never be entered into lightly.  If you lose you may be ordered to pay your opponents legal costs. However this will not happen if you have a genuine claim at the time you issue and only lose because the landlord protects the deposit after you have started proceedings.

Please see also the disclaimer in the footer below.

Photo by taxfix.co.uk