As has already been announced on the PainSmith blog and on Nearly Legal, there is now, finally, a binding decision (for now) on tenancy deposits and the vexed question of when the award of three times the depost sum can be made to the tenant. Whether it is a decision that we like is another matter.
The case is Draycott & Draycott -v- Hannells Letting Limited. The solicitors were PainSmith, who reported the decision here.
The matters in question were whether an agent can be liable under the regulations, and whether the landlord should still be liable to pay the penalty if they protect the deposit outside the 14 days but before the court hearing. The decision the Judge came to, in essence, was:
1. A agent will be liable under the regulations as well as the landlord, if it was the agent who was dealing with the deposit.
2. The award of three times the deposit sum is not payable if the landlord has satisfied the initial requirements of the tenancy deposit scheme being used.
In the Draycott case, the scheme being used was the Deposit Protection Service (DPS). The Judge took the view that, although the DPS’ scheme terms and conditions say in section 9
“The Landlord or Letting Agent is responsible for ensuring that Deposits are submitted for protection within 14 calendar days of the date of receipt by the Landlord …”
in fact
“In my judgment, the requirement that there be payment into the Scheme is the initial requirement of the Scheme, and not the requirement that that be done within 14 days”.
Therefore by protecting the deposit outside the 14 day period, the landlords agents were not in breach of the initial requirements of the scheme, and the tenant was not entitled to the award of three times the deposit sum.
This is perhaps an unfair summary of the case, and there is of course a lot more to the judgment than this. A lot of very sound points were made, which together go to confirm just how badly drafted this particular piece of legislation is. Anyone interested in the legal arguments should read the case decision, which is here.
However I suspect that a lot of non lawyers will be very surprised by a decision which finds that a contract term which says “The Landlord or Letting Agent is responsible for ensuring that Deposits are submitted for protection within 14 calendar days of the date of receipt by the Landlord. …” is not in fact imposing an initial obligation that the deposit be protected within 14 days.
Some thoughts which occur to me:
- Surely it should be up to Parliament to decide the circumstances when a tenant is entitled to the award, not the tenancy deposit scheme’s legal draftsmen
- It is possible that there could be two situations, with exactly the same facts, where tenant A will be entitled to the award and tenant B will not, simply because a different tenancy deposit scheme has been used – is this fair?
- What if the tenancy deposit scheme rules have changed since the deposit was paid – how will the tenant know this, and will he be able to get hold easily of the terms and conditions current at the relevant time?
You may think of other problems, in which case please leave a comment at the end of this post.
This is consumer law which has been introduced to protect tenants deposits. The award of three time the deposit sum was put in the legislation as a deterrent to force landlords to comply. As most tenants are not lawyers and will not normally be able to afford lawyers to act for them, it ought to be possible for them to work out, reasonably easily, whether or not their landlord is in breach of the law.
However
- We now have a situation where landlords will feel that they can leave deposits unprotected until threatened by tenants with court action (assuming they do not wish to use section 21).
- In order to find out whether their landlords are liable for the award, tenants will have to read not only the legislation but also the terms and conditions of their landlords tenancy deposit scheme.
- We also have a decision where apparently straightforward wording such as “The Landlord or Letting Agent is responsible for ensuring that Deposits are submitted for protection within 14 calendar days of the date of receipt by the Landlord. …” is held to mean the opposite of what the ordinary man in the street would expect it to mean.
This is highly unsatisfactory and hopefully we will get a decision from the Court of Appeal shortly which will clarify matters.
In view of the uncertainty introduced by this case, I am withdrawing my Kit 2 (which is to assist tenants claim under the tenancy deposit regulations) from sale, until the legal situation is clarified.
*****
Note – if you have a tenancy deposit dispute take a look at the book on >> this page.
At last, a higher court decision on this. In my role doing specialist housing advice/Tenancy relations for a large London authority I have made this a particular hobby horse of mine but have harboured personal concerns about the requirements of the legislation matched against my personal experience of sitting in interview rooms with landlords. I dont know what the stats say but can only offer a personal comment that the vast majority of landlords that I meet dont actually fail to protect the deposit through malicious intent, but plain old ignorance of the law and are often horrified and all too willing to comply once they know.
I have also recently interviewed a tenant who was quite happy with their current letting, in the full knowledge that the landlord had failed to protect the deposit and, knowing, after being advised by me, that they had 6 years to lodge a claim, that they would happily rent for a further year, to complete their university course, and then whack the landlord later on for a cash benefit.
The legislation is sloppily worded ( but then again so was the Housing Act 88 when it came in, which, embarassingly I have been around long enough to remember hahaha) but it would seem excessive to penalise landlords for noncompliance where ‘honest blundering’ (to quote a famous housing judge’s term) would, in my personal experience, seem to be the norm.
As to the first aspect of the case I do have a practical problem with identifying who has responsiblity for protecting the deposit. I encounter a regular situation where the landlord and their agent, whether through genuine ignorance (rare) or contrivance (common) a landlord and agent disagree about contracted responsibilities. Both sides often point the finger at each other. The only way of truly establishing facts is to look at the contract between the agent and the landlord, namely whether or not it is a ‘let only’ arrangement or a managing arrangement. This always causes me endless headaches because I only have ‘Say so’ to go on, and nobody has access to the contractual agreement, and councils, being bureacratic behemoths, take an age to sort these things out.
How do I pursue? an agent for defaulted deposit responsibility when they swear blind they gave it to the landlord? who equallly swears blind the agent deals with everything?, Meanwhile the tenant, who desparately needs the deposit to move on, doesnt know who to chase?
Given my experience of dealing with the 29 accommodation agents in our borough….(all but 2 unregulated, and all but a handful not being ‘done’ by trading standards for unfair terms and conditions), my solution is to start my own accommodation agency with some housing adviser friends, with the unique selling point, and how depressing is this?, to provide a service that can actually help tenants and landlords make sense of the mad complexity of housing law and have harmonious relationships..
I dont think it is right that landlords should be routinely penalised for failing to comply in 14 days. The legislation was created to address an issue of landlords treating deposits as an extra income stream but I cannot deny that in my day to day experience it is usually simply ignorance rather than artifice that brings this situation about, as was the case with the original requirement of section 20 notices to create a true AST back before 1997 – bad publicity.
Thanks for your thoughtful comments Ben.
There is no doubt about it that this is badly drafted legislation and whichever way you interpret it, there is going to be unfairness and injustice.
I agree that it is unfair to penalise the landlord/agent for an honest mistake. I suspect this is why the Judge came to the decision he did in the Draycott case. However this then brings in the other problems I outline in the blog post.
I am not sure what the answer is. However there is hopefully going to be a Court of Appeal decision soon, so we will have to see what line they take.
I’ve just seen a reference to your blog here on another forum. Below is my response there:
“I would agree with Tessa Shepperton that it should not depend on the rules of the scheme, but it doesn’t really and cannot.
Cannot because there are three schemes and could all have different rules and if a deposit has not been entered in any one of them, which rules would apply?
Doesn’t because the wording in the Act is in the present tense so can only apply to the date of the court hearing. I think the High Court Judge saw that there were two possibly conflicting rules, the obvious present tense at one point in the legislation, and the “initial requirements” wording in another clause, so he concentrated on showing that the latter did not – at that time – conflict with the former.
I notice that you use the phrase “a tenant’s right to recover the penalty award” but they can’t “recover” what they have not paid.This isn’t recovery, or even compensation because there is no need to prove loss of any kind. This is a unique introduction into civil law of the ability of one person to fine another.”
(“You” refers to the forum poster, not to Tessa)
I’m surprised that everyone did not immediately realise, as I did, that because the Act wording was in the present tense it could only apply to the date of the hearing. Nor is there anything wrong with that. A landlord issued with a court summons for not protecting a deposit, then protects it and pays his tenant’s costs. He has suffered some humiliation and cost, so he has learned his lesson.
Why do some commentators want to demand the 3x penalty? That’s just spite or greed.
You, Tessa, and many others don’t seem to realise that if the 14 days were strictly adhered to, then the schemes could not protect a deposit at all after that time, they would have to refuse because it did not meet their initial requirements. In which case the landlord or agent’s only way to avoid penalty would be to return the deposit and be unprotected themselves. That would be very harsh.
I see that Ben in his very sensible comments mentions, “the tenant who desperately needs the deposit to move on” which they can never get on time from the DPS and sometimes not for weeks. That’s why I always use the Tenancy Deposit Protection Scheme so I can return a deposit the day the tenant leaves.
As I read it the judgement let the deposit holder off the penalty because of the particular conditions of the scheme run by The DPS. I don’t understand it fully but it all seems to turn on the interpretation of “initial requirements”.
Does that mean that The DPS itself is at fault for failing to properly protect tenants’ rights as dictated by the act?
If at fault do tenants have a possibility of action against The DPS itself?
Could not The DPS scheme rules be rewritten to make it clear what the initial requirements are and to more effectively protect deposits against say landlord bankruptcy and to provide an arbitration service for late lodgements by landlords/agents – allowing for graduation of penalties for compliance failures based on acceptable reasons – such as sickness or whatever.
I am very unhappy with the deposit protection legislation or implementation. We as agnets have problems with follow on tenancies, with joint tenants changing, with getting the deposit returned even after having a court ordering it to be returned, with lead tenants disappearing…
It is true that there are problems caused by the different schemes having different terms and condtions, and doing things in different ways. In many respects it might have been farier to just have had the one tenancy deposit scheme as they do in Australia. What do people think about that?
As I have said before, if “initial requirements” include payment within 14 days, then after that the DPS could not accept the deposit, nor the other scheme insure them. That is not what the legislation envisages at all.
Moreover, as I have also said before, the real purpose is not to punish slack landlords (mush as some people love that idea) but to protect the tenant.
In the case before the court, the tenant suffered no loss, so talk of “let the deposit holder off the penalty” has no place. The agent wasn’t “let off,” it was found that he had done the right thing, only a bit late.
The DPS cannot be sued and if the 3 schemes had refused to accept any responsibility for deposits after 14 days there would be a huge fuss – and court cases over whether a deposit had scraped into the 14 days or not, etc. etc.
In my experience The Tenant Deposit Protection Scheme is the only one worth bothering with – good for tenants and landlords.
Webranger: the critical point is that if the tenant’s money, his deposit, is not protected then it is, errrm, unprotected and that means that through no fault of his own he may lose all his deposit. There has to be some kind of force pushing the deposit holder into protecting the money expeditiously.
And Tessa therein lies the answer: the purpose of the protection legislation is to protect the tenant’s money so I think the answer is to put the burden of protecting the deposit onto the tenant. At present the burden is on me, the agent.
So applicant wants to rent my house – he lodges the required deposit with the DPS in advance of signing the AST and names me and the AST and property. It is easy for the tenant as he can call up my details on the DPS web site using my preregistered information which includes our AST deposit clause and property details. I, the agent, get a certificate giving me rights to the deposit as prescribed by the AST.
Multiple tenants, changing multiple tenants, renewals, tenants changing property? It’s up to you Mr Tenant.
Putting it onto the landlord/agent is hideously expensive and inefficient. And worse still – many tenants do not understand it. If they lodged the money themselves and it never came near us they would be much happier.
Oh – and I should have said that there is no no need for a lodgement penalty. If the applicant cannot deliver me a certifcate of deposit lodged for my AST/property the applicant doesn’t get possession.
William, that may or may not be a good idea, but it is not the system we have at the moment.
I have had a comment from the DPS on your comment made on 29 March :
If we made this an initial requirement it would close off the late submission of deposits (and therefore tenants would not be protected which is the purpose of the legislation.). We would also be imposing a tighter restriction than is currently in the legislation.
I think we are correct to reflect what is currently in the Housing Act 2004 and if the government wants to change the position to make the penalty apply when a deposit is paid in late (rather than when it is not protected at all) they should do so. If they do we will change our Terms and Conditions.
Yes – I know it is not the system – but it could be and I suggest it ought to be. The whole thing is seriously broken at present and rather than toy with it it should be changed to put the burdens where they really belong.
The essence of the present problem is that while the money is in the hands of the agent/landlord it is unprotected until he specifically protects it. In the worst situation a lightning raid by a creditor could theoretically freeze all of a landlord’s funds minutes after he had banked a deposit. None of the government legislation will return the tenant’s money in that situation. Much better for the deposit not to be in the landlord’s hands at all.
At present if three joint tenants want a new tenancy with a change of one tenant we have to withdraw the old deposit and resubmit it with the new name and for the new AST. We presently charge the tenants £30 to do that (deposit transfer work alone, AST charged separately) and I think it should be rather more to accurately reflect the work we have to do.
I am sure most tenants would much rather do all that themselves and not be charged.
In the end all that matters is that the security bond is held in escrow for a particular AST with reasonable rules to decide how it should be managed and by whom AND reasonable rules for transferring it to a new AST. (The management at present on the DPS is dire and transfers are totally missing.) Much better to put the onus of all that on the tenant – it is as I say, his money.
And speaking of which – does the legislation preclude an independently run escrow service?
Thanks, Tessa, for approaching the DPS and getting them to confirm that the position is as I have been saying.
I think William’s idea is spot on. It really would solve the problems for all parties. It would even solve the problem of getting a deposit back in time to start a new tenancy with another landlord – the tenant could merely get the DPS to switch the deposit across (with the old landlord’s agreement, of course).
But, as Tessa says, that’s not what the legislation allows. It was not framed by someone clever like you, but by politicians and civil servants who delight in creating bureaucracies and confusion. So we have to make the best of what we have.
for what it’s worth, i as a tenant would agree wholeheartedly with tenant-driven deposit protection. i have had numerous problems with my deposits in the past couple of years, AFTER this legislation came into force, and would so much prefer having the control and responsibility over my own money. but would the british government actually consider putting such responsibility on tenants? i think they have a patronizing attitude toward their constituents (sometimes perhaps rightly so) and would consider it too much to ask!
I am a little confused as I have an email from the DPS which I think gives another slant on the requirements within 14 days
I was advised by the Deposit Protection people around December 2009 time to start court proceedings as our deposit had not been protected as per the legislation that is required of a landlord.
This being Tenants can make an application to a County Court under Housing Act 2004 if they believe that their deposit is not being safeguarded, or where they have not been given the prescribed information about the scheme in which the deposit is safeguarded within 14days of the landlord receiving the deposit. – Both of which apply to my case.
but yet the appeal judge has given a different view on this ?
Help me to please understand this before I loose the will to live
Kind regards
Helen
You are not the only person who is confused Helen, I think we all are!
There is a Court of Appeal decision pending, and this (when it is published) may clarify matters somewhat.
As the two deposit protection schemes have knowlingly been accepting deposits AFTER the 14 days they cannot claim that before 14 days is an initial requirement. Furthermore, this flawed legislation made no mention of what would happen if the deposit was offered after the 14 days.
Furthermore, the whole point was to protect the tenant, not to provide a stick to beat ignorant or inefficient landlords.
Those are the reasons why the High Court Judge made the decision he did.
The question for you, Helen, is have you asked the landlord in writing for evidence that he has protected your deposit in one of the two schemes available to him? If not, write and give him 7 days to provide it.
If he doesn’t, start the proceedings. If he then does protect the deposit and provide the evidence before it reaches court in order to avoid the penalty, still let the case get to court and ask the judge to award your costs. I’m sure he will and probably have some harsh words for the landlord.
we started our tenancy in june 2008 and geninuely believed that the deposit had been protected as per our contract wording, it was only when we had problems in the house and the attitude seemed to change by my landlord and having enforcement officers at the door from credit companies we asked where our deposit was,we were told it was in our landlords business bank account, we gave her 14 days in which to resolve the issue, the issue remained unresolved and i started court proceedings in january 2010 the deposit continued to remain unprotected despite letters and account numbers that did not exist, because of the time frame involved in getting a hearing the deposit was protected on 22nd february 2010, by which time we had 2 weeks notice to go on the house, so firstly it served no purpose for it to be protected for 2 weeks at all, and also our landlord disputed the amount, and it went to ADR service to be resolved, thus believing that it was never our landlords intention to protect it all, but to withhold it.
It seems to me that tenants are suffering stress having to go to court, run the risk of being made homeless when upsetting landlords when asking where the deposits are, and then because of this badly written piece of law not being able to claim the 3 times the amount for total ignorance of the law because of time constraints within the court. I think 20 months late is a little non compliance wouldn’t you agree, I am unsure where our deposit amount went to, but it certainly was not where it should have been
I am going to appeal anyway over serious issues with the court and the handling of this case, and I intend to also sue the court system if necessary and funds allowing.
I would add a note of caution here, and say that starting proceedings is a serious matter which should generally only be done after taking legal advice. If you get it wrong you may end up paying the winners legal costs.
High Court Decision only seems to apply, “54… when the deposit is paid into the scheme later than 14 days from its receipt by the landlord, but before the tenant commences proceedings…” ( http://www.bailii.org/ew/cases/EWHC/QB/2010/217.html )
So, if the landlord still hasn’t given the tenant, information relating to the authorised scheme applying to the deposit, required by section 213(6)(b), then the tenant’s claim should be undisputed.
High Court Decision only seems to apply, “54… when the deposit is paid into the scheme later than 14 days from its receipt by the landlord, but before the tenant commences proceedings…” ( http://www.bailii.org/ew/cases/EWHC/QB/2010/217.html )
So if, by the time the tenant commences proceedings, the landlord still hasn’t given the tenant, information relating to the authorised scheme applying to the deposit, required by section 213(6)(b), then the tenant’s claim should be undisputed.
Where the judge got that “before the tenant commences proceedings” from, I don’t know, it certainly isn’t from this piece of legislation. The time that matters is the day of the hearing.
In assisting a landlord friend of mine who is trying to escape being the victim of a couple of unscrupulous children of a tenant who died on his premises, I have analysed the very faulty relevant sections of the Act very carefully and it is now clear that there has to be “the person whom it appears to the court is holding the deposit,” before any claim can be successful.
If no-one is holding the deposit at the time of the hearing, then they cannot be ordered to pay it to tenant or deposit scheme and the “three times fine” is only ever payable if the deposit itself is payable.
The 14 days is a red herring and Judge Tegendhat actually made the right decision for the wrong reasons. The Act says that the deposit should be paid into a scheme within 14 days so the timescale is quite independent of whatever the initial requirements are. Matters are confused because schemes do accept deposits even knowing that they are outside the 14 days, but it would be very inequitable and chaotic if they didn’t.
I have read your comments, am I to understande that my deposit was unprotected since 4th June 2008, Court proceedings commenced 5th January 2010 judgment filed in default on 29th January 2010, judgement granted for me for assessment for damages on 15th February 2010 so therefore deposit protected on 22nd February 2010 would I be entitled to claim for 3 times the amount
Thanks
Helen
Helen, if you have got a CCJ, the fact that the landlord then protects the deposit afterwards should not affect this.
It is when the landlord protects the deposit before judgement has been given that the problem lies.
yes but the judgement is for an amount of damages to be assessed by the court, not three times the amount, would this perhaps be a mistake by the court, along with all the other ones that they made, but I than had 2 other judgements given after that one. does this matter
Thanks
Helen
Helen, I am afraid that (apart from a few general comments/suggestions) I do not give legal advice here on specific cases – you will need to speak to your solicitor. Sorry.
Hi all
I would like to put in a tenant point of view with respect to this judgement.
1. First of all the 3 times penalty is a way to enforce the law. Since this judgement has come out , landlords through out the UK have accepted that the only condition under which the deposit needs to be put into the protection schemes is if the tenant threatens the court case.
2. The tenant is not greedy for demanind the 3 times penalty but is owed that amount for putting his deposit at risk of the landlords insolvency. Needless to say with so many landlord going bust in recent years this is a fair compensation for risking money that does not belong to the landlord.
I believe this is a poor judgement which will break the back of the law and make the DPS scheme an impotent one which is unable to achieve what it set out to achieve.
Thanks
Before initiating court proceedings, recommend requesting depositprotection.com and thedisputeservice.co.uk to respond in writing as to whether they protect deposits after 14 Days have elapsed from receipt by the Landlord if the Tenant has has initiated Court proceedings for non-Protection of the Deposit.
New Circuit Court Judgement re Tenancy Deposits
See my June 22nd post above. On June 30th the appeal went to the Circuit Court and on the grounds mentioned above we won with costs and counterclaim against the deceased tenant’s son.
A case of greed getting its own reward.
A full report is here http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/244224-tenancy-deposit-protection-first-6.html at post 116.
I’m sure you will all find it interesting.
The big problem with the deposit protection scheme is that a landlord cannot access the agents domain on the web site to ensure that the deposit has been placed where it should have been!!! Major flaw in the system, so, if this is the case then how can the landlord be liable when the deposit placement is outside his/her control?
It’s not the biggest problem but the responsibility being on the landlord even when an agent receives the deposit is certainly one very unjust feature.
Obviously a landlord should have an arrangement whereby the agent immediately sends him/her a copy of the Certificate and Information whenever a deposit is protected and the agent’s agreement should indemnify the LL against any costs and penalties created by the agent’s failures, AND the agent’s website SHOULD have a password protected area for the LL, but even these don’t completely protect the hapless LL.
If LL lives abroad or is away on holiday or the agent goes bust or AWOL, then LL can still have to carry the can. Perhaps one should ensure that agent has indemnity insurance to cover all the angles.
I may be about to start using a letting agent myself, so I will have to carefully look at all this.