I’ve an elderly friend (80) who has been told to leave her home via a S21 (although invalid). She’s found alternative accommodation and has turned to me for help as I’m a very experienced landlord and so able to support her through this. In the process, I’ve discovered that the deposit she paid in 2019 was never protected. The tenancy agreement even mentions the deposit but no protection scheme, and she has no PI at all.
She would like to pursue compensation for this lack of protection and I’m happy to assist her through that process. While I know the procedure, I’ve never done this before. Because we know the landlord’s first response might be to offer a settlement, I’d like to know what a fair settlement would be so I can advise her whether it’s worth accepting or not. I’m aware that up to three times the deposit could be awarded if we go to court, but I’m unsure as to what a judge would likely award in this case. Does anyone have any idea what it’s likely to be if it’s only one deposit for one tenancy?
Many thanks in advance.
Go to the Shelter website and look for “How to get your deposit back”.
Scroll down to “If your landlord or agent has broken the rules” and read what it says. The normal way forward is to go to court for compensation.
As this would be a County Court action, then you would be best to follow the pre-action protocols and write a letter to the LL outlining that your friend believes the LL has broken the rules and wish compensation at £xxx (up to 3 times the deposit is the limit). State that if they do not wish to settle, then the T will proceed to court. The LL has 30 days to decide whether they wish to a) settle or b) proceed to court with costs against the LL.
Raising a claim at County Court is quite simple and can be done online. The court will then send the claim to the LL with instructions on what to do next. If they do not respond within 14 business days, then the T can apply for a default judgment. If the LL does acknowledge the receipt of the claim within 14 days then they have a further 14 to send a defence to the court and the T.
Then the system grinds on for about 4-5 months for a hearing. There will be a second fee for the hearing as well as a fee for filing the claim but the winner gets their costs back.
There is a template letter on the Shelter site.
If the deposit was never protected then ask for the maximum = 3x the deposit plus the original back. If he equivocates, mention considering a conditional fee lawyer.
As I said @EmanNeercs, I’m completely familiar with the procedure. What I’m unfamiliar with is how much is likely to be awarded.
Thanks @David122 for suggesting what might be awarded. We will be waiting to inform him of our decision to pursue compensation once we receive the original deposit back. He may decide to make unnecessary deductions as there is no damage and no inventory was ever taken so he has no basis on which to make deductions. If so, we’ll be informing him of our decision at that point. My only concern with your tactic is that it’s pretty audacious and he may simply scoff at it rather than cough up somewhere around £2,000. But if he’s going to refuse to return the deposit in full at that point, then I think it might be the right approach.
The information you need is actually on the Gov website
What happens next
If the court finds your landlord has not protected your deposit, it can order them to either:
- repay it to you
- pay it into a TDP scheme’s bank account within 14 days
The court may also order the landlord to pay you up to 3 times the deposit within 14 days of making the order.
Whether it will be 3 times would likely depend on the judge’s mood on the day but it doesn’t stop you asking the LL for all of it, but settling for less.
The conditional fee lawyer suggestion is not just a threat. If you cant face the protracted court case until you get awarded the penalty, they will do the job for you for a percentage.
@EmanNeercs… the information I need isn’t there I’m afraid. What I’m asking for is what she’s likely to get within the parameters of 1-3x deposit. The Gov website nor Shelter give ideas about how much is likely to be awarded in the case of one deposit for one tenancy.
Thanks @David122, we’ll bear that in mind, although the longest legal battle I’ve faced lasted nearly seven years so I have some stamina when it comes to court cases
so, eventually I discovered that her deposit was with DPS, we’ve now got it back although because we had no paperwork, had to jump through a few hoops.
I’ve also since found a piece of paper appended to the AST to the effect that her deposit will be protected and she should receive a deposit certificate. Then it says that if she has not recveived it within 14 days of signing the AST, she should “conatc us” [sic] and ask for it. Needless to say, she did not receive it. My thoughts are that this appended note is futile. The responsibility for passing on the PI and providing proof of receipt is the landlord’s, and the tenant should not be chasing up a landlord to ensure he fulfills his legal obligations.
We’ve now sent off a letter before court action on the basis that she never received the PI and await a response.
The PI is not the same thing as the deposit certificate. The latter is something that most schemes issue after they receive and protect the funds, but I think that in the DPS case, there’s no legal requirement to give a copy to the tenant and it doesnt affect the protection. Check if that has changed.
The PI is required. Is it possible that the tenant has lost it?
The tenant received absolutely no paperwork in relation to the deposit - either PI or cert. Correct, the cert is not a legal requirement, but the PI absolutely is, as defined by The Housing (Tenancy Deposits) (Prescribed Information) Order 2007
Crucially, this includes “a signed certificate from the landlord confirming that the information he has provided is accurate to the best of his knowledge and belief and he has given the tenant the opportunity to sign confirmation that the information provided by the tenant is accurate to the best of his knowledge and belief.” (my emphasis)
I have signed “certificates” like this for all my tenancies. If he can produce one signed by her, then we’ll draw a line under it, and put it down to my friend having an age-related brain fart. But he was (and apparently always has been) extremely lax in regard to paperwork (the format of the AST is laughably out of date), and when I asked him if he had any paperwork for the tenant to sign when she handed back keys, he said, “No. Should there be any?”
He then commented that he was an “accidental landlord” and didn’t have a massive portfolio. But when I did finally see the deposit cert at DPS, lo and behold, it had been registered by a property company that he was a director of! He is currently director of two property companies and has resigned from 5 others according to Companies House. Fascinating.
So, here’s the landlord’s response which arrived by post today:
He refers to the tenancy agreement but this contains no details except the name of the scheme which falls short of PI obligations. We’ve not yet had a chance to search my friend’s emails/texts for any info from DPS, but she has on more than one occasion told me that she never received anything. I therefore don’t expect our searches to pull up anything. Assuming those searches pull up nothing, is this worth taking to a no win no fee solicitor?
I was curious and started googling this to check for legal precendents specifically around PI. The blog on TDS’ website (I don’t think links are allowed here unfortunately) does discuss several cases where landlords ended up paying 3x the deposit as compensation. I didn’t have a lot of time to check other legal cases not mentioned here, but it does indicate that a discussion with a solicitor might be worth having, assuming the tenant can show they did not receive it. In terms of compensation amount, the blog post did caveat that " It is important to note that this case was based on the law applicable prior to the amendments made in the Localism Act 2011. If this case had been heard under the present law then the penalty for non-compliance with the Order would have been to repay the deposit and a penalty of up to three times the deposit." Also, I note that the law does not require the tenantto have signed the PI, but the landlord does need to show that the tenant was given the opportunity to sign it. I hope that helps!
It is possible to include all the PI in the tenancy agreement, but this would make it very long as the PI must include the schemes terms and conditions, which usually runs to several pages. In any case, PI given before the deposit is protected would render it invalid.
A link to the DPS website doesn’t qualify as anything.
The landlord has messed up. Its possible that they don’t know the proper way to protect a deposit. Actually, I suspect most landlords don’t and get it wrong all the time.
Thanks for the input. I’ll let you know what the next steps are.
an experienced solicitor today confirmed that we have a case although she thought that 1.5 times is likely the highest award we’d get in this case. She was honest with me about the fact that as she has a minimum fee and that amount would equal her fee, I’m now on the hunt for a cheaper solicitor.
A cheaper solicitor? compo xxx, cost xxx . No benefit ? This for a friend you say. You must have a bit of time on your hands . Wish I did
Time enough to add comments to a forum which don’t move the dicussion along
Spoken to five solicitors. All of them said we definitely have a case. We’ve got two tenancies because the AST became an SPT so that increases the possible award to as much as 1.5 + 1 x deposit. In addition, the fact that he responded to our LBCA by dismissing our claim helps our cause as the judge is likely to take a dim view of that.
Now we just have to decide which solicitor to engage and sit back and enjoy the show.
Latest update: no win no fee solicitor appointed and she’ll now set about drafting a final letter before court action which the LL really should accept the terms of.
The LL protected the deposit.
Your friend suffered no loss.
Why do you think she deserves compensation?
I get that legally she might be entitled to it, but morally? This is just a spurious attempt to squeeze money out of a LL & I am surprised you are supporting this action!
Just another reason not to be a LL!