Rental Deposit – Tenant Seeks Advice

Excuse lengthy post but as requested by Mark time I sorted all this out I think

Ahmed what is DRS - do you mean DPS?

Either party could always refuse ADR, always could and still can. It is simply one of several options for resolving a dispute between LL and T at tenancy end, including negotiation between themselves and involving the Courts if all else fails.

Just as a Landlord can refuse to release in the other two schemes, instruct the agent to release the deposit to them and thus leave the agent at risk of suing by tenant if they subsequently lose out. The agent should hide behind the fact they are Stakeholder and not Agent of the Landlord and refuse to comply with what is an illegal instruction, but few do as to do so risks losing the future business.

Also just as Schemes have strict timelines for accepting disputes but don’t apply them. And just as a tenant who has agreed to an apportioned release can later change their mind and still go to ADR – Schemes never want to be seen not accepting a dispute.

ADR was never compulsory to use, just compulsory for Schemes to offer. Given their perceived bias by LL and agents in awards to tenants is it any wonder LL refuse it and would rather go to Court in cases where teants actually dispute reasonable claims?

The tragedy is that the other two schemes in E&W do not have the single claim mechanism which would then indemnify all concerned whereas in Scotland they do. But let's focus on Ahmed and DPS.

ADR is simply an option open to the warring parties!!

The idea is of course that ADR is free to both parties so this new 6 months rule makes sense as otherwise the only option is Court. I always thought there was a legal protocol that you couldn’t just wait forever, but apparently you could. This 6 months is still not a statutory obligation of course, but as it is a scheme rule one that must be complied with. That is because the biggest sanction of all, on an agent especially but also a self managing landlord, is that if one scheme kicks you out for non compliance with their rules, the others won’t take you.

Or at least not TDS and TDSL won’t. DPS as the default scheme I think still might but as the agent or LL would have lost fit and proper person status all HMO licences go out of the window anyway.

The problem with refusing ADR is that you will almost always end up there if in Court the defending party says they were happy to go ADR all along and not waste the Court’s time. In that case the Judge will almost certainly instruct both parties to go ADR, and to cooperate with the process. Once at ADR you are sunk of course if you lose as although you could still go to Court but you’d have to disburse the deposit as ordered by the Adjudicator though, or again risk being kicked out.

But the ‘winning’ party waiving its adjudicated decision about in Court would win unless the loser could find a serious error at Law. If you really want to find fault with the schemes it is that there is no appeal process at all internally through any Scheme to appeal a decision.

I will check whether this clause 21 can be retrospective (doubtful) and whether DPS would want a Stat Dec or similar completing for the 6 months default payment (highly likely).

Basically if both parties agree to ADR fine. If they do not then ADR is not an option.

If one party is silent but then responds to single claim contact from DPS, then single claim is lost.

All that then remains is either Court or wait 6 months for the deafault claim to be made

Thanks so much for a simple clear explanation.
When u go to go court, how does that work and do u need a solicitor with its financial implications

OT but note that at the expiry of these 6 months, the landlord is not kicked-out of the scheme, and neither do the parties lose the opportunity to seek redress in court. It is just that the scheme can essentially give up, send the money away, and let the parties settle the dispute on their own.

Ahmed trust me that is a simple, clear explanation, though I will defer to Romain if I am badly wrong anywhere. I am checking several issues with DPS to be absolutely clear on it.

In terms of clarity and as asked by Seething Landlord just exactly where are you in this process and as I mentioned before where is the agent in all this if, as I suspect, the deposit is sitting in their account at DPS.

If you have registered a dispute with DPS then it will be too late for them to transfer the deposit to the Landlord (assuming he has an account with them) and so the agent will be contacted by DPS to respond to your claim.

In terms of Court Costs basically if lucky your solicitor (if you are represented) will be able to claim about £50 and second class rail fare. Check with Clerk to the Court some Judges do not like anyone above a junior solicitor to appear in the Civil Court

Romain

Morning!!

No of course didn't mean to imply otherwise and what I was saying was wrong anyway as the money to be disbursed would by then be held by whichever scheme so the agent or LL couldn't refuse to pay it to the tenant anyway.

First senior moment of the day (surprised you didn't get me on that one!!)

Reply to the comment left by "Ahmed Aziz" at "16/07/2014 - 08:43":

Ahmed, if you Google "small claims court" you will find plenty of guidance about the legal process. The Citizens Advice website might be a good starting point.

Reply to the comment left by "Industry Observer " at "16/07/2014 - 08:32":

Regarding retrospective application of 24c, clause 35g states, inter alia: "All Forms will be processed and all Disputes dealt with in accordance with the Terms and Conditions in force
at the time the relevant Forms are received by The DPS."

In the definitions "Forms" means all forms required to be submitted in relation to the Scheme and includes the Change of Landlord/
Agent Form, the Deposit Submission Form, the Landlord’s Evidence Form, the Joint Custodial Deposit Repayment
Form, the Tenant’s Evidence Form, the Statutory Declaration and the Statutory Declaration Notice;

I can see no provision for what happens if some of the forms were submitted before the change and some after, which may be so in Ahmed's case, so there is no guarantee that he can rely on 24c. In any event, if the landlord refuses ADR and wants to recover some or all of the deposit he will have to commence proceedings unless he and Ahmed come to an agreement between themselves. Otherwise the deposit will remain with the DPS until either Ahmed obtains a court order for payment to him, or 24c is deemed to apply and the deposit is returned to him after the 6 months has expired (but see below).

The full wording of 24c is "In the event that a Landlord or a Tenant does not provide their consent for the Dispute to be resolved through
the ADR Procedure, the Dispute must be resolved by the parties or through the courts. If the party who
does not provide its consent for the Dispute to be resolved through the ADR Procedure does not start the
required court proceedings within 6 months of responding to the repayment claim or Statutory Declaration
Notice, indicating that they do not consent to the ADR Procedure, any disputed amount may be released
by The DPS to the other party."

Note that it says "may be released", not "will be released", so it is subject to their discretion.

We still do not know for sure whether the landlord will consent to ADR but if he doesn't I think that in Ahmed's position I would take the view that there are too many uncertainties and my only course would be to commence proceedings myself.

Ahmed

I am not sure I agree with Seething Landlord but I see his point. This all depends on action or inaction, and timelines.

I asked before but cannot recall seeing an answer, if I have missed it apologies but to help all those trying to help you (and from what I can see now going round in circles) we need some facts, as follows:-

1. What date did your last signed tenancy agreement start, and what was the last fixed date of that agreement?

2. Did you then vacate or did the tenany go periodic?

3. What date did you vacate?

4. What actually have you done to try and get this deposit back? Is it all verbal, have you put anything in writing?

5. Are you dealing with the agent at all, or just the landlord? Do you have direct contact with the Landlord, or is that just messages being relayed through the agent?

6. When did you actually demand the return of the deposit less the £200 you said the LL could keep. What exact date and was that in writing?

7. Have you actually made a statement to the landlord that you now deem the two of you to be in dispute? If so what date and was that in writing?

The answers to the above will show what you can do, if anything. For my money if you have not yet stated definitely that you are in dispute then the clock has not started ticking and you can use the 6 months rule.

But first you will have to go Stat Dec, but you can only do that if you can show you have had no contact at all with the landlord. If there has been contact, negative or positive, that the Stat Dec will not be accepted by DPS

Out of curiosity how much is the deposit anyway?

Answers to the questions:

1. Began the tenancy agreement for 6 months from 6/10/2014 until 6/4/2014
2. Went then on rollover (is that the correct expression) for one month
3. Vacated the property on 6/5/2014. The estate agency came over and was happy, asked for outside drain to be blocked and grass to be cut, which I did
4. Numerous correspondences via email with estate agency requesting return of my deposit (£1000) who each time came back via email saying the landlord is refusing
5.i am dealing with the estate agency who is passing on to me what the landlord is saying ie no direct communication with landlord
6. The estate agency offered to bridge the differences between myself and the landlord and offered 50% return (he said that he has not mentioned thus to the landlord and doesn't know if he will agree). I refused and said the max I would be willing to leave will be £200 to avoid the inconvenience and disturbance. That was a month ago
7. It was the estate agency who emailed me 2 weeks ago saying that he cannot solve this and that we will have to use the DRS now

(Clarification) The landlord has not seen the property for quite a while. He had renewed it and I think I was the third tenant in it since then. It is in a very good condition but I think he expected it to be like when he had just redecorated it. The estate agency was happy when he received it and the inventory shows that, only to clean the outside drain and have the grass cut again, which I did at a cost of £200 (hence why I was not willing to leave more than £200 from my deposit and that will make it a loss off £400 to me). In addition I had to settle a lot of disputes when I moved in as the previous tenant had not paid his utility bills (they did not even know that a prepaid gas meter had been inserted as a result). In addition, I had to insert a landline as there wasn't one even although there was supposed to be one. We have a cleaner and gardener once a week and are both professionals so took good care of the property