There have been a few annoyed reports from landlords in the past, complaining about the DPS failing to return deposits because the court failed to order this. Here we have the opposite.
A loyal Landlord Law Blog reader has sent me a brief report of a section 21 claim she made where the Judge, wrongly, ordered the return of the deposit to the tenant. In her own words:
A couple of months back I submitted a S21 claim for possession, which was defended by the tenant. I was unable to attend court, but faxed the night before, asking that it be heard in my absence.
The court gave me possession in 6 weeks, but awarded the tenant the full deposit immediately. She kept control of the property for a further 6 weeks, altho she was not living there.
On hearing that I could lose the deposit, I immediately issued a Claim to have it struck out.
I sent evidence of this legal challenge to DPS who refused to accept it, saying that they would be complying with the original court order, and that I should make any further claim against the tenant. DPS then paid the still resident tenant the deposit whilst the tenancy was still active.
I attended court this week, and the judge immediately agreed with me that an error in law had occurred. My argument was that
a) the possession hearing was about HA 1988 S21 notice, and nothing to do with the 2004 Act and deposits.
b) the court has no legal jurisdiction to rule on return of a deposit on a tenancy that was not ended.
d) the court could not reasonably rule on future behaviour of either tenant or landlord, so the request for the return of the deposit should have been turned down.
As the judge said to me .. a pyrric victory.
I suppose from the point of view of the DPS they would say that they had to comply with the court order as it is, but it does seem very strange. Has anyone else had any experience of this happening?
Always attend court hearings
One thing to take away from this case though, is that you should ALWAYS attend court hearings. Otherwise unwanted orders can be made in your absence.
Had this landlord attended this hearing it is likely that the order, ordering the return of the deposit would never have been made.