Ben Reeve Lewis Considers problems with the tenancy deposit legislation
As a working TRO in an inner London authority you see a lot of people in a year. Running into the several hundreds.
All present with a variety of complaints of harassment, illegal eviction, breaches of tenants rights and issues with property conditions which we work on in tandem with Environmental Health.
There are a stock set of routine questions we have to go through. Name of landlord, address of landlord, etc. one of which being “Has the landlord protected your deposit?”
Now the majority of cases we see are either Assured Shorthold tenants or Statutory Periodic and 90% of them come brandishing some form of S21 notice, ranging from correctly drafted ones to versions written on the back of an envelope in crayon.
The eagle eyed among you will know that a S21 notice is invalid if the landlord hasn’t protected the deposit or has served notice before protecting.
An unknown quantity
The usual response to the question on deposit protection is a blank stare because at the bottom of the pile where I ply my trade the requirement for deposit protection is an unknown quantity among landlords and tenants.
There are another group of landlords who know about it but have no intention of complying, relying on tenant ignorance and a perceived lethargy to get them through.
So I read with interest Tessa’s piece on the recent case law of Charalambous v. Ng (2014) which now throws far more landlords into the quagmire of deposit protection legislation and it set me wondering how my tenant/clients fare when pursuing their landlord through the courts.
Deposit protection claims?
For some time now I have been giving out a deposit protection pack which walks tenants through a ‘Join the dots’ version of suing their landlord for the infamous penalty.
The pack contains clear, plain language guidance on how to get the necessary evidence from the scheme and how to fill in the N208 form needed, a blank copy of which is also inside the pack.
So in one of those winding down hours leading up to Xmas when even the worst landlords are too busy finding last minute perfume in Oxford Street to threaten their tenants I decided to dig out a list of ex clients who had been given the pack and having a bit of a ring around.
I got the best part of 20 and asked them how they had gotten on.
Claims in action
Only 1 of them had actually launched a case and that had taken 9 months and resulted in so many adjournments on technicalities they wished they hadn’t started.
The rest cited cost of proceedings and fear of standing up in court as the deciding factors in dissuading them from proceeding.
Hardly a MORI poll I know but an interesting snapshot which I’m sure isn’t in local isolation from other areas of the UK. I know housing professionals who appear in court regularly who dread the court experience even though they have done it hundreds of times.
So the problem seems to be that even when virtually holding a tenant’s hand they don’t advance their case once they leave the office with encouraging words ringing in their ears.
So with all talk of the Charalambous case creating waves in the landlord community at the moment I wonder how much at risk landlords really are.
Risk to landlords?
For my regular rogues this lack of action has a confidence boosting effect. Despite all the threats and serious looking letters nothing actually happens so why bother protecting the deposit at all?
If you have been following deposit legislation cases for the past 7 years you will know that it has become more complex than Japanese arithmetic which stretches lawyer and housing adviser alike, so what chance the poor tenant facing a confusing legal mountain with public speaking in front of a bad tempered judge as your final reward?
Deposit protection penalties are all very well but hardly designed to help ordinary people with no legal training to obtain justice.
I always find the phone advice staff of all the schemes tremendously helpful but that’s a long way from the thought of appearing in front of scowling Judge Nutmeg in a bad mood.
Why can’t it be easier?
Why can’t the process be done on paper, like accelerated possession proceedings? The paperwork needed is minimal and fairly prescriptive:
• Proof of payment
• Proof of tenancy date
• Proof of either failure to protect or late date of protection
• S21 notice.
If none of the facts or dates add up then what more needs to be discussed?
Tenant awareness of the requirements of deposit protection is also an absolute must.
Why can’t government information offices produce TV adverts on the topic? I grew up watching similar adverts on everything from how to park a car properly and calling the coastguard in an emergency, to not leaving country gates open, lest livestock should go walkies. Surely this is a serious enough community issue with the new army of renters out there.
Whilst tenants remain ignorant of the deposit protection rules and the legal machinery for claiming penalties continues to be complex and intimidating, belligerent and recalcitrant landlords have little incentive for compliance.