The Tiensia tenancy deposit Court of Appeal decision clarified the law to a certain extent, but there are still lose ends flapping around. We all rather hoped that the cases in the litigation queue would resolve the remaining problems. However the most recent case, leaves much to be desired.
Potts v. Densley – High Court of Justice – 6 May 2011
I am not going to go into much detail about this case as it has been reported admirably by Pain Smith (one of the solicitors in the case) and Nearly Legal.
The landlord had failed to protect the deposit but it was protected late, after tenancy had ended but before the hearing of the case. The tenant was claiming the penalty of three times the deposit sum.
The High Court followed Tiensia and said that as the deposit had been protected before the hearing, the penalty provisions did not apply. There was also a failure to serve the prescribed informatino form, but the court refused to consider this as the claimants had not mentioned it in their claim form.
Moral of the story – make sure you draft your claim form properly!
There are a few more cases in the pipeline apparently so we shall have to see what they say about it all.
The judge in this was the infamous Gail Hallon, an incumbent at my local court whose temper I have been on the receiving end off on many unpleasant occasions. She was the trial judge in the case of Malcolm v Lewisham, the current defining case law on disability discrimination Act defences to possession proceedings.
To part quote Monty Python, I have known grown men pull their own heads off at the thought of standing up in front of her
In fact it occurs to me now, that as my outfit have been quite proactive in advising tenants on deposit protection, that I may have even been the one to urge Potts to go for it.
And, as I have to stand up in front of la Hallon can I retract what I said above, and state for the record, that she is a wonderful, fragrant woman who is the embodiment of decency and fair play?
The two visions you show are not entirely incompatible. Trying to deliver justice and fair play in South London is surely enough to justify the pistons going off from time to time.
Anyway most men are like boiled macaroni when trying to stand up to a strong woman in a position of authority.
I love the first description…
I have experienced her temper, indeed I wasn’t allowed to speak, question or really cross-examine the ‘wonderful and patient’ landlord, whose version of events differed from my own and evidence.
‘Stitched up’ I think the phrase is sadly.
Are you the Potts in Potts v Densley?
I am, yes.
Happy to stick my head above the parapet even though I feel I am being shot at from all corners!
I have read a few reports on this case and I dont get the impression that anyone is taking a shot at you Karen.
When you launched your case we lived in simpler times, in terms of deposit protection. It was pre-Tiensia. This was back in the day when most of us thought the legislation (the intent of it anyway) was quite clear. I dont think there had been a single high up case law at that time, it was all county court conjecture.
The last year has really been the time when it all fell apart.
At least your case will have its place in landlord/tenant law history, even if you had a hard time of it in front of Hallon. She’s not that bad really……quite generous……I’ve heard she would give you the scales off her back given half the chance haha
Thanks Ben. On one forum I am portraited very differently to most of the others and very anti-tenant and ‘hoorah for justice and the LL winning’. I agree and said similar on said forum regarding the landscape being very different in 2009 to 2011, where advice was also very different.
On said forum, the opinion was generally that I should have (hindsight) gone through small claims ignoring the HA and non-compliance for merely the return of my deposit way back in 2009.
I do thank you for your opinions and on Hallon. Have you googled her name recently?
The problems with the interpretation of the tenancy regulations is, I think, shameful. Government really ought to take more care in drafting lelgislation so that this does not happen. If three judges in the court of appeal cannot agree on how legislation should be interpreted (as in the Tiensia case where one Judge dissented), how are ordinary people supposed to?
It just makes it massively unfair on people such as you Karen, who bring a claim in good faith, only to find that the interpretation of the law has changed when you get to court.
I agree with Tessa Karen. That is an important point that even the high judges couldnt agree on the interpretation.
Also the fact that you had Pain Smith on your side tells a lot. they are very well respected in this area of work, particualrly at the moment with deposit protection work.
I wouldnt fret too much about getting savaged by that website. There are websites out there that are rampantly pro landlord and anti tenant and a couple the other way around. One apalling site I saw is called something like ‘Hate your landlord’ and paints all landlords as having horns and cloven hooves.
I like to think that this website is properly balanced and can be read by either parties which is why I post here. You’re safe with us :)
Prompted by your post I just googled Hallon and straight away found a very interesting site calling for people to boycott her. You wont have too much trouble finding it. Did make me laugh
That’s why I commented on googling her name ;)
It seems to originate from a Korean TV station for some reason.
I love the description “a rare blend of ******* (sic) arrogance, *******, ***** *******”. Seems we arent the only ones who have been suffering LOL
(Edited by Ed)
Thats enough Judge bashing please – I don’t want to be hauled off to prison …
The case has been discussed at length on landlordzone.co.uk forum including participation by Ms Potts, and I think this is the so-called ‘anti-tenant’ forum she is referring to. Ms Potts has posted regularly since she began her claim, in spite of the alleged hostility.
Even back in May 2009, before Ms Potts started her claim, the court guidance was that non-compliance claims should be allocated to the multi-track. I advised Ms Potts of the court guidance in August 2009, shortly after she first posted on landlordzone announcing that she had brought the claim. She ought therefore have been aware of the risks, and the exposure to costs, not to mention the advisability of engaging counsel (the absence of a plea on the ground of failing to provide the prescribed information was a fatal error), no matter how ‘clear’ the legislation’s intent may have appeared to be pre-Draycott.
Whilst Ms Potts has complained at length on landlordzone that the HC judgment was based on inaccurate facts, e.g. the judge found that the landlord offered to return the deposit prior to the end of the tenancy, and that having been refused he protected it two days after the tenancy ended, etc, (facts which Ms Potts denies), it begs the question as to why there was no appeal against the judge’s findings of fact.
It’s all very well to say how ‘unfair’ it is, offer tea and sympathy, and blame the meanie judges and the poorly drafted statute, but there are two sides to every story. Potts v Densley is not a simple case of a landlord failing to protect the deposit over an extended period. It was initially protected for the first two years of the tenancy, and only later unprotected, with Ms Potts’ consent, due to the agent being uninstructed and a replacement tenancy being entered into in May 2009. The LL re-received the deposit in mid-late June 2009, shortly after Ms Potts served NTQ – yet in the brief window of non-protection commencing in June, Ms Potts, according to her posts on the forum, sent the landlord a letter before action, with notable alacrity, in the same month (at around the time that the landlord was dealing with his sister’s death which occurred on 25th May and/or when Ms Potts knew he was on an extended holiday).
It is my view that Ms Potts’ behaviour was unreasonable, and that the matter could have been resolved without any need for legal action, but for Ms Potts’ unswerving determination to make a mountain out of a molehill.
Thank you, as always Westminster, for your contribution.
The Judges did indicate, in the Tiensia case, that in their opinion, the object of the legislation was the protection of the deposit, rather than a financial windfall for the tenant.
The whole 3x deposit penalty business has been most unhappy, causing all sorts of problems, and it is to be hoped that at some stage the legislation will be amended. Possibly by the Localism Act.
And as you say Westminster, it does show up very clearly the importance of drafting up your claim properly in the first place.
Westminster, I have never said any forum is hostile. SOME people say “hoorah for the LL” and appear anti-tenant. Everyone is entitled to opinions in life – including myself.
You might have been aware of the legalities of bringing a claim back in 2009. I am not legally trained and obtained local solicitor guidance which was followed. Anonymous posters on a forum I did not think was the best advice to take at the time. Rightly or wrongly.
I am only prepared to discuss the original trial at this moment in time. It would be unfair to discuss the Appeal when I have yet to have ANY discussions with my solicitor firm or counsel since the Judgment. (I will say that some questions I have raised to them from the outset mirror what you have mentioned on the forums! Maybe our thoughts and brains are more alike than you think eh! Scary thought!)
I agree that there are two sides to every story. I have one, you have another, one party of which is privvy to insider knowledge, whilst the other is more versed in legal matters. We also have many opinions that are the same!
Regarding the deposit being paid mid-late June, the money left my account the DAY I received notification of the return of the previous deposit and the same day that I was aware that it wasnt being transferred from the TDS to the DPS but coming back to myself.
Notable alacrity? Were you party to the large amount of acrimonious communications between myself and the LL at that time which resulted in my terminating the tenacy between paying the deposit and the funds actually clearing?! I note you also mention his sisters death. I was made aware of this situation in RESPONSE to my letter before action after all the acrimonious communications, which was a month after her death. This was the only communication from the LL after receiving cleared funds right up to the end of the tenancy when I realised that the deposit was not protected – and therefore raising of the claim when he saw ‘no point’ in adhering to his responsibilities. I left him alone throughout this bereavement time, and trusted that he would protect my deposit as he promised in writing that he would.
Re this alleged offer to return my deposit before I raised the claim – as stated on the other forum, my opinion and evidence was different to the Judges and I was not allowed to give email evidence from the Trial Bundle or say anything at my Trial that differed from the LL story and her thoughts. LL also had a non-particularised counterclaim which he only dropped infront of the Judge.
You have the opinion that I have been unreasonable. I would say that when a LL refuses to acknowledge receipt of the deposit for a period of time, and then fails to protect the deposit throughout the tenancy – and indeed for a month afterwards – is ‘unreasonable’. We will never agree on this issue!
If making a ‘mountain out of a molehill’ is trying to insist that the HA was followed and my deposit be accounted for and protected before the claim was made through Court – then I agree – and why shouldnt I insist the law was followed? Why should my money be put at risk? Why shouldnt I have access to free arbitration for any possible future counterclaims? My money was ‘missing’ and unaccounted for from the 18th June to the 8th/9th September. My tenancy ended 15th August.
OK I have published Karen’s comment but please NO MORE PERSONALITIES. This is not the place for it.
Any posts that are rude or antagonistic about anyone, whether they are a Judge, a party to a law case or someone posting on a forum WILL NOT BE PUBLISHED.
I read this with interest. My former landlord did not protect my deposit and is not replying to my requests to return it. Where does this leave people like me? I am investigating submitting a claim to county court but it’s no longer clear what the outcome of such a case would be.
James, I did a guide to making a claim here : http://www.landlordlawblog.co.uk/2011/04/18/tenants-legal-making-tenancy-deposit-claim/
I’m in a similar situation to James (landlord attempted to protect deposit after eviction and was subsequently expelled by the Scheme – I’m hoping that we get judgement on Hameshi v Gladehurst on Thurs which might help) but with the complication that any civil action would also be for unlawful eviction.
Would I need to pursue two different claims or is there a type of claim that would cover both?
(I realise you will probably tell me I should just get a lawyer at this stage, which is entirely fair enough, but also seems to be staggeringly expensive from the few quotes I’ve had…)
Very useful guide though, and I will certainly be following the first steps in the meantime, so thank you for that free service!
Nick you could probably combine the two claims in the one claim, however I do think you should get some advice from a litigation solicitor before you take any action.
Unlawful eviction claims can be tricky to draft and if you miss something out it could prejudice your case – look what happened to Ms Potts claim in the case on this page!
Whereabouts in the country are you? If you are in London this firm could help: http://www.landlordlaw.co.uk/supplier/anthony-gold-solicitors
I fear you are right, but was put off by being quoted £260 an hour! Particularly when it became apparent I knew more about the latest case law than they did…
I am in London though, so I will give Anthony Gold a go, at least once Hashemi v Gladehurst is out. Much appreciated!
If I have time I will enter my story for the tenants in the firing line section…
Nearly Legal have reported the result of the Hashemi v Gladehurst case, which seems to remove the 3x penalty for not protecting the deposit if the tenant has now vacated the premises. It seems to be that there is no reason for the landlord to protect the deposit until they wish to serve a Section 21 notice. This is a very bitter pill to swallow, especially as HMCS require it to be submitted as a multi-track case (ie much higher court fees). So, unless tenants have a substantial amount of money spare, the landlord can be quite confident in getting away with keeping the deposit at the end of the tenancy.
Surely a completely absurd judgement – it’s like they decided what result they wanted and then set out to perform whatever logical gymnastics were necessary to justify the conclusion.
The only route left that I can think of is unlawful eviction due to the S21 being invalid where the deposit was not protected at the time. I don’t know whether anyone has tried that yet, though it will be an element of my claim.
Even that would only work if you were evicted though – if you were the one who served notice on the landlord, clearly there’s no case.
Otherwise, it seems that we’re back to the pre-Housing Act framework – contesting the deposit item by item in the small claims court.
The only other thing I can think of is if the legislation is changed – but would any potential change in the law help out tenants in the position that me and James are in, or would it only apply to tenancies that start/end after the new law comes in to force?
I have just represented my son and 3 other lads as a lay representative at a hearing to sort out a messy claim.
At the end of there second year at uni their landlord held back most of their deposit for “damages”, we decided to go to arbitration and asked him for the DPS scheme details (which were never given in the first palace), we got a reply from his solicitors stating that they would be in touch, but never did. This was part of the reason the schemes were set up and so with one to act as an interdictory they had no other means but to issue a claim.
The courts misplaced the n208 and served it very late. We made an application using Cranfield to get an extension. The landlord’s solicitor was there and very aggressive, and tried to argue that that we new the claim was running out of time and that it was served very late and Cranfileld did not apply, but we won that round. We now have 28 days to get evidence and statements as the Landlord is offering a defense, but with all the new case law its difficult to see a way through.
We did say in our claim that wrote to him asking for details which implies that they were never forthcoming in the first place, so we have made that point as well.
At any time during the 2 years it has taken to get this far the Landlord could have produced information about where the deposit was but has not. The guys where hit really hard in there last year at uni loosing £1800.
One other point – if a landlord put the deposit into a scheme after the tenancy has ended, I do not see how this could be called a TDS as they are not tenants and the scheme should not accept the deposit. The word tenant implies a time period which has ended.