What are this tenants chances of success in this deposit claim?

Here is a question to the blog clinic ‘fast track’ from Angela (not her real name) who is a tenant

Hello, I rented a private property in London in 2010 which I applied for and completed the tenancy agreement via an Agent. The Tenancy deposit of £1940 was protected (however I did not receive any details of where my deposit was protected)

My rent was paid via direct debit directly to the Agent as per the Tenancy Agreement (agreed and signed by the Landlord).

In the second year of the tenancy I started receiving calls from the Landlords husband advising that they had not received my rent. I advised him that my rent was paid and he needed to contact the Agent. He called me a few times (not calmly) and advised me to stop paying the rent. I told him that I would only do this if I had a new agreement.

He advised me that they were going to see the Agent and for me to meet them there so a new agreement could be put in place. I was on my way to the Agents office when the Agent rang and told me not to come in as the husband was aggressive toward them and they were calling the police.

I then received a call from the husband advising that they had sorted the issue and to continue payment as usual.

A few months passed and I received another call from the husband advising they had not received the rent again. I went down to the Agents the next day to find out what was going on, only to find out that they had closed their office and absconded.

I could not get hold of the landlord but I rang their son and advised him of this. The husband then rang me and advised he would send me a new tenancy agreement and the rent would be paid directly to them.

I noticed that the deposit on the agreement displayed as £0 and when I questioned this with him, he told me that I had lost my deposit as the Agent had absconded with it. I subsequently sought advise from Shelter and they advised me that the Landlord was legally responsible for my deposit. They advised that I could proceed with action then, but as I was still living at the property I could do this when I eventually moved out.

They also advised me of avenues to explore to find out where my deposit was protected (as I had no details) After much ringing around I found that it was protected with My Deposit.

I asked them to send me details/paperwork as I had none – which they did. They later sent me another letter advising that the Agent was no longer a member of their protection scheme and that the Landlord would need to re protect my deposit. They advised that they were sending a letter to advise the Landlord of this. My deposit was not re protected.

I stayed in the property until Aug 2015 when the Landlords husband advised me that their son was going to move in. I repeatedly asked for the return of my deposit, but again I was told that I had lost it. I contacted Shelter again and they advised me to send the Landlord a letter (from one of their templates) asking for the return of my deposit. If I did not receive a response within 21 days I should send a follow up letter advising of possible court action if the deposit was not returned.

The husband rang me and again told me my deposit was lost (he would never acknowledge this in writing) I then went to the Citizens Advice Bureau asking for assistance with the Court Application. They advised me that I had a strong case and assisted with my application . I paid the requested Court Fees and have since attended a preliminary hearing at the County Court.

The Landlord was present with her husband who asked if he could speak on her behalf as she was in pain. She had arrived with one of her legs in plaster and on crutches (Funnily enough he is a doctor) The judge asked for my permission for this and I agreed.

The case is now going to a final hearing in Mid October and I would like to know if I should continue to represent myself or get a lawyer involved (The Judge did advise that this was a complex case)

Can you please advise if can or should do this at this late stage and what my chances are of a successful outcome
Thank you

Answer

The deposit

If you can prove that you paid a deposit – and the fact that it was protected with My Deposits along with your evidence, should be sufficient proof for you – then you should win in your claim against the landlord. (Make sure you have proof of the ‘My Deposits protection with you at the hearing)

The fact that the agents may have run off with the money is no excuse, landlords are liable for everything their agents do on their behalf and if you paid the money to the agent it is the same, legally, as paying it to you.

I don’t see why this is a particularly complex case so far as the recovery of the deposit is concerned. The protection with My Deposits will corroborate your statement that you paid it, its your money and you are entitled to have it back, unless the landlord is able to show that he has a valid claim against it for damage.  Or, I suppose, unless they are able to prove that it has already been returned to you.

You do not mention that they have made any claims for deductions and it will be hard for them to do so at this late stage.  It does not look as if they are claiming it has already been returned.

The penalty

You don’t mention making any claim for the penalty for non-compliance with the deposit regulations. Your landlord’s former agents presumably protected the deposit within 30 days of receipt from you but if they did not provide ‘prescribed information’ then your landlord and the agents are both liable for the penalty.

This is between 1x and 3x the deposit sum. The precise amount is in the discretion of the Judge. As the deposit was subsequently not protected and your landlord has refused to refund it to you, the Judge may exercise his discretion to award the 3x.  Which is quite a hefty sum.

You don’t mention including this claim – if you have not then you should consider adding it although it will involve amending the proceedings which will complicate things. If you decide to do this, then getting some help may be a good idea.

I have a post on this blog which has advice about where tenants can find free legal help here.

In conclusion

If you just decide to claim for the return of your deposit the hearing should be fairly straightforward. You can prove that you paid it, it’s your money and they have not returned it.

Unless they can bring up a valid claim for deductions I can’t see how you can fail.

However, if you are claiming for the penalty it will be more complicated. There is a post here which looks at how the penalty is often awarded which should be helpful for you.

If you have not included this in your claim and you decide you would like to do so (and it is probably a good idea) then it would be best to get some help getting your claim amended as it is not that straightforward.

You may also want to get some help at the hearing but be warned that if you use solicitors for any of this work, it is very easy for the costs to mount up and become very expensive.

Make sure you know in advance exactly what you will be paying – negotiate a fixed fee – and make sure that you do not give them any excuse to charge by the hour.  Send them a letter setting out what their agreed fees are and say specifically in the letter that you do not authorise them to incur any additional fees without agreeing this in writing with you first.

It is possible that they may agree to do this on a no win no fee basis.  There is no harm in asking anyway.

If you decide to do it yourself, I have a little book about dealing with (civil) court hearings here which you may want to get. Its sets out how the Judge will approach the case and how to prepare properly.  The general principles set out in the book will apply to all types of hearing.

Have a read around this blog too. Searches in tenancy deposit and similar terms will bring up some helpful posts. In particular take a look at this one on tenants and deposits  and this one on agency law (read the bit about agents authority).

In conclusion, I think you have a very good chance of success, indeed in your claim for the return of your deposit I can’t see how you can really fail.