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Jamie-Law
Jamie-Law, Solicitor
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Experience:  Solicitor
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I am a landlord with an assured shorthold tenancy agreement

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i am a landlord with an assured shorthold tenancy agreement which started in 2006, before current deposit protection laws came into force? The agreement has been renewed either explicitly or tacitly since in 2007, 2009 and 2011. Recently notice was served by the tenant (after mutual agreement) as the tenants were not prepared to pay a rent rise. The deposit was not protected as the tenancy agreement began in 2006 before the current law came into place. Tenants are complaining because of depoist deductons for damages and deposit is not protected... Have i unknowingly broken the law or is the tenancy exempt from current regulations as it began the year before they came into force? And if I have what's my best course of action?
Submitted: 14 days ago.
Category: Law
Expert:  Jamie-Law replied 14 days ago.

Hello my name is ***** ***** I will help you.

Did they ever sign a new agreement?

Customer: replied 13 days ago.
Hi Jamie, yes as stated above it was renewed or tacitly. Explicit renewals were signed in Aug 2008 and Sep 2009 (by agent and tenant). From 2011 on, renewals were tacit/rolling direct between myslef and tenant, no agent, nothing formal, just a continuation agreement between landlord and tenant. (FYI, this mutual "trust" based arrangement was put in place because tenant cold not pay a rent rise (after 5 years) but she wanted to stay on and agent was adding no value) Does this answer your question? John.
Expert:  Jamie-Law replied 13 days ago.

So was it renewed for a fixed term tacitly or remained periodic?

Customer: replied 13 days ago.
tacit renewal ie from 2011 was no fixed term and no more renewal discussions until the rent rise/departure discussions earlier this year o I guess you can say that our tacit renewal was for an indefinite term or theoretically "forever" if that is a meaningful term to use. Does that help?
Customer: replied 13 days ago.
before 2011 they were fixed term subject to notice) for 2 year periods as above. After 2011 there was no papework it was all oral trust based arrangement so open ended, subject 2 months notice, as previous tennanccy agreements just no end date. Hope that's what you're looking for.
Expert:  Jamie-Law replied 13 days ago.

So after 2011 they could have terminated at any time?

Customer: replied 13 days ago.
with 2 months notice i suppose
Expert:  Jamie-Law replied 13 days ago.

If there was any tenancy which started after 6 April 2007 then it need to be protected.

Even if a tenancy is renewed it should be protected. As there was a renewal in 2008 and 2009 then it fell into the protection scheme.

You have broken the law need to return the deposit in full otherwise you can be sued for x3 the amount.

Can I clarify anything for you about this today please?

Customer: replied 13 days ago.
Unfortunately I don't think returning teh deposit is an option because costs from cleaning, garden restoration and other degradations ammount to far more than te deposit and, more impirtantly, tenants are fully intending to sue me whether or not I return the deposit. They have made this absolutely clear, papers are on their way, so if I return the deposit I risk losing out even more. As mentioned, there was an agent involved until 2011 so they were in charge when the new law came in. Don't they have the prime obligation to protect? Bit also ncluding handing over to me what they put in place or at least informing me on handover that I have a liability? Also, what was the point of your questions about the renewals after 2011? Does that have an impact? My answer to you was just an interpretation of an undocumented situation. There was effectively no formal arrangement between us and none was requested. It was a purely trust basis. The relationship was good and both parties felt they could trust eachother. The relationship only deteroirated when I made it clear that after 10 years I could not continue without a reasoable rent rise. Since that request everything has gone wrong. So (a) can i deflect this bak to the agent and (b) if not what is my best course of action to defend myself if the tenants have made it clear that will not stop them?
Customer: replied 13 days ago.
infact to make this simple can't i just claim there was no contract in place after August 2011 and this was just an informal agreement, willfully entred into by both parties with no contract or tenancy agreement in place. That is the actual situation.The last tenancy agreement expired in 2011 and was between tenant and agent. And of course I signed an agreement in 2006 with the agent. There has never been any formal written agreement between myself and the tenants.Only verbal and perhaps an email to confirm they have no need to leave and agree the rent contunues at the same level; It is just an open informal arrangement with no written terms.
Expert:  Jamie-Law replied 13 days ago.

i needed to know when they renewed and when things weee in writing. The law says that anything after 2007 must be protected. Further the law says you can not take any step to evict whilst the deposit has not been protected.

If you do it's illegal. If you don't protect the deposit it is illegal.

There may be damage but you have to issue proceedings against them for that cost. You can just deduct monies as you should have protected it. In any event if it was protected then you can show damages to the protection agency and they can decide whether these sums can be deducted.

But the long and short is that you renewed the agreement in years indicated above, it should have been protected.

Does that clarify?

Customer: replied 13 days ago.
Hmm... partially.I am apparently not allowed to deduct suls as the deposit was not protected. I have to issue proceedings against the tenants. I am not allowed to evict but thee was no eviction. They would not accept a rent rise. Just as they gave notice. As they did I believe in 2011 to the managing agent but were then allowed to stay on by me.But it doesn't clarify the situation regarding responsibility pre-2011 nor after. Original contract was 2006, before law so no liability, right? Then until 2011 renewals were under the managing agent. They signed them not me. Aren't they responsible for lack of protection and failure to hand anything formal over to me? Then piost-2011 there was no contract. Last one expired Aug/11 and no extension or replacement was signed. So there was no contract. How then can there be a liability fo deposit protection after Aug/11 when there was no tenancy agreement? Am I being clear?This as a genuine error (if it was an error, lisunderstanding at least) between the agent, myself an the tenant, who never once asked me for a contract nor to protect the deposit. I am not a professional landlord. This is my own home in he UK and is named as sch on the last contract signed incase we need to return home. I am just trying to see the wood for the trees and find the best way forward. They have already said they are suing me anyway so I don't see what good returning the deposit wil do. They are still gonna sue me..! I need a defence and there is no contract and a managing agent when the law changed who should also have done something... Surely this is not all my fault, especially as I nevetr signed any contract. The agent signed all and I paid them for their professional management services including finding the tenant, referencing, putting the contract in place, collecting teh rent, maintenance etc. Surely they cannot just ignore the law and not notify me of a liability as a result of teh cotract they signed and then everything is my fault? They are the professionals. I am only an indivudal renting my own home while abroad!
Expert:  Jamie-Law replied 13 days ago.

pre 2006 not a probelem. Post is an issue. Whether you were using an agent is not relevant. You are the landlord, not the agent.

If the Agents are negligent you may have a claim against them. But if you didn't protect the deposit, no matter what you say, it is illegal. Whether you are a professional landlord is irrelevant, the law applies to everyone.

You can sue for loss and damage. But what you can't do is deduct from a deposit when the law says it must be protected.

I am sorry. Does that clarify?

Customer: replied 13 days ago.
Right OK let me just summarize:
- Pre 2007 (I guess that's what you mean not pre-2006): no problem, depoit protection law did not apply
- Post 2007 to 2011: deposit protection is my responsibility even if there was a paid managing agent. But I may be able to counter claim for neglience against the agent if they did not fulfill their responsibilities which I would expect to at least include some formal communication on that subject as they took the deposit from the tenant, and cllected the rent, not me, and were paid to manage all that side of things.
- Post 2011: I don't think I saw an answer to that above... There was no contract and therefore no formal committent. What is it that says I have any obligations beyond what was verbaly/informally agreed between myself anf then tennants?? There was no contract!! It was an informal trust based arrangement. That's all. And no request ever to protect a deposit.
- Deposit: I cannot deduct for dammages . I must return it and then claim against the tenants for dammages even if they have made it cear they are suing me anyay. Do I have to launch a counterclaim or do I include that in my defence assuming their summons arrives and covers non-return of deposit as well as non-protection fo deposit?Just need confirmation on the two pre 2011 points above and answers to those two questioons from you then all should be clear. I hope.Thanks in advance.
Expert:  Jamie-Law replied 13 days ago.

Post 2011 it's a periodic tenancy, so no new one it just rolls on and even then still needs to be protected.

Your other points are correct. If you have been served a court claim form you need to put a counter claim in using the court paperwork sent with the claim form.

Does that clarify?

Customer: replied 10 days ago.
hello jamie sorry travelling on businss since sinday night; I said a needed a detiled answer but not urget. Was hoping to keep this open a fw days til im back a nd i don't have court paper.
Expert:  Jamie-Law replied 10 days ago.

Sure. Please remember though to rate as the site doesnt credit me until you do. The question stays open and you can ask a follow up for free. Thanks

Customer: replied 6 days ago.
Back now... and have court papers. So hopefully we can close this this evening or in the morning as the initial deadline to respond is tomorrow. And I promise I won't forget to give you your rating! My intial request was for detailed repsonse but not urgent. It has now become urgent due to the dealine for filing initial response and papers arriving while i was away.I assume your advice reamains valid that I must return the deposit even though I have received court papers; Tell me if anything changed since I am now actually being taken to court. I may have some defence or be able to buy extrat time if the tenant has not followed the corretc procedure. The additional clarifcation I need is have they followed the correct procedure? They seem to be following the small claims route and they have not shared all evidence, only a few emails between us, no photos, no tenancy agreemets, no inventory or check out. Can they follow the small claims route for landlord/tennat disputes where evidence is critically important? Also they have followed the UK domestic procedure and I am not in the UK so even if thay can use a simplified small claims like procedure, shouldn't they follow EU procedure? For example here normally papers must be signed for by the intended recipient or their legal representative or served by a competent person appoited by the court. It seems odd that the papers weres ent by ordonatry post and not signed for by me or anyone. Even if they are allowed to uses a UK procedure and delivery procedure are they using the correct one to serve papers in a landlor/tenant situation where one word against the other so we must rely strongly on written evidence and only scant eviodence hase been included. The rest is presumably there but hiodden, not shared.
Expert:  Jamie-Law replied 6 days ago.

You need to file a defence, if you give the deposit back now you may be too late because it is as of date of issue of Court proceedings that counts.

Small claim is ok and you can Counter claim for the items we have Discussed. They may then drop the case to avoid court.

Does that clarify?

Customer: replied 4 days ago.
Back on procedure I have to ask you again to clarify. As it seems I am at a a clear disadvantage here because a simplified UK domestic procedure is being used and I am abroad, not a UK resident. I don't have all evidence disclosed, delivery methods are slow and unreliable and eat into the time I have available to respond to the court and evrything is in Engish whereas my legal proection here is in French. That reduced time available and unshared evidence means I am almost doomed to failure in any attempt to defend myself! So i did some internet research. It seems there are requirements in international disputes and and specificall for French residents which are not respected by the current procedure. It seems also that the corect ENglish procedure may not have been followed. I don't expect you to answer Qs on teh French law within teh context of the original Q i asked nor at all infact as I guess you are an ENglish lawyer. But I do need a clear answer on English procedure. I found in several places throught simple internet search that the procedure to be followed is different including one of your colleagues... (the one who was originally named as available to take my query if I am not mistaken). But of course simple internet search can also be simplistic... I need a cler answer on this. .http://my.justanswer.co.uk/question/guest/38d430fd3a2b4318a2f543016dec697d Please check out her response and review my question from Sunday and tell me which procedure should be followed for landlord/tennant dsputes. The current one is resulting in only partial evidence being shared (very scant/selective infact). If I responde in writing then other evidence is pulled out of a hat by the tennant then the review is held "on paper" I will be wiped out! Even if a hearing is held I am unlikely to be abe to attend. So you see following the coreect procedure and disclosure of all evidence is critical to me. Otherwise this will not be a fair "hearing".
Expert:  Jamie-Law replied 4 days ago.

Procedure in what way? You want to know about disclosure?

Customer: replied 4 days ago.
For UK procedure your colleagues post above indicates what she (and others elsewhere) have said should be followed. If you look at that you can confirm which pocedure should be followed in such cases as this, landlord/tenant disputes. Re FR procedure as i said earlier I don't expect an answer from you but if you have any answers on serving interntional court papers I'd be more than hapy to have it! Regarding disclosure, this relates to the correct UK procedure to follow I believe but basically I am worried only scant evidence has been shared and later more will be produced which limits, or eliminates all together, my possbilities to respnd and defend myself. Is that clearer?
Expert:  Jamie-Law replied 4 days ago.

Ok, this is how it works.

1) You send in a defence

2) The court then sends out a Directions Questionnaire

3) Once those are returned a Court considers which considers which 'track' to allocate it to.

4) If its a small claim then disclosure does not apply. You just send in the evidence you want to rely on 14 days before a hearing.

5) If its a fast or multi track - the Court will give directions about disclosure

6) Disclosure is by list, that means you provide a list of documents within your control which support or undermine your case

7) If a party wants to inspect a document thereafter they can do.

That is how it works - Can I clarify anything for you about this today please?

Customer: replied 3 days ago.
I don't seem to be getting what I need here... Youve included a list of steps, great, but I cannot relate that or the terminology you use to anything i read elsewhere, of which your colleague's response above, is an example. Maybe my question was still not clear enough? She is saying tennant nees to follow "part 8" procedure (and a lot of other stuff...). Elsewhere I found Part 8 requires full evidence disclosure (among other things) which has certainly not been done in this case. Tenant seems to have followed simplified "small claims" procedure which, among other things, doesn't appear to require full evidence disclosure and is putting me at a big disadvantage. Let's try keep this as simple as possible so it doesn't keep generating new questions as I need to move on and I'm sure you would like to close too. Is the advice about the Part 8 procedure correct and if so how do I know which procedure my ex-tennant has followed? I need to know if can object on procedural grounds and get a procedure used which gives me a better chance if defending myself. From what I've read of you and in parallel web search, that's it. If I get the right procedure applied then I have a fighting chance. If ll i gett is quick look at scant evidence (lies by ommission...) without sufficent time to respond, especially if more stuff is presented late or last minute, and even worse if attendance is required when I'm abroad, then I have no chance at all in defenidng myself!!
Expert:  Jamie-Law replied 3 days ago.

What stage are proceedings, if any?
What track, if any, have they been allocated to?

Customer: replied 2 days ago.
i got the claim form that's all but it's late took, ages to arrive and I was travelling so very late but that's where we are. I've just seen iin the small print it's form N1 claim form CPR part 7 06.16. Does that help?
Infact is that "Part 7" a reference to the procedure, ie it's not Part 8 per your colleague's and other posts?
I have no idea aboyt the track - where can I find that?
Expert:  Jamie-Law replied 2 days ago.

Ok. Have you filed a defence?
How much is the claim?

Customer: replied 2 days ago.
No. Return of deposit (£1170) plus 1-3 times compensation.
Expert:  Jamie-Law replied 2 days ago.

Ok. Then once you file a defence (which you need to do), the Court will then send out Directions Questionnaires.

Because the value of the claim is £10,000 or below then it will be a small claim.

In terms of disclosure that rule (which applies to fast track and multi track claims) does NOT apply.

Therefore you need to submit documents on which you seek to rely upon 14 days beforehand.

If there is a document you need from the other side and they wont provide it, you need to make an application to Court for disclosure.

So for a small claim, disclosure rules do not apply.

Does that clarify?

Customer: replied 2 days ago.
Isn't that exactly why (at least one of the reasons) your colleague and others say the part 8 procedure must be used in landord tennant cases, not small claims? It's one word against the other, tit-for-tat, so all evidence must be presented. You seem to be going on the monetary value only, niot the complexity and I don't thik you answered teh question yet about part 8 procedure or Part 7 which appears to be the form I got. Can you please answer this question?
The current procedure seems to be putting me at a disadvantage for a number of reasons i have already evoked.
Expert:  Jamie-Law replied 2 days ago.

No, it wont be a Part 8 claim. If its for deposit compensation then its breach of tenancy contract and a small claim.

It will be a small claim on part 7.

If you had a claim form and it was blue, it is N1 Part 7 claim.

Does that clarify?

Customer: replied 2 day ago.
No it's black and white, well faded grey actually, poor photocopy, but i tiold you what i could read in the small print foooter (cpr part 7) so small claims.I never signed a contract. Agent did it. And I never got a copy of any contract after the original 2006. When the current law didn't apply. So you see this is far from simple and straightforward and in my view requires all evidence to be disclosed to give us a level playing field. So if, as you're saying, I can't force a pt 8 Procedure (others apear to have a different view...) then how do I force this out into the open aand try to get this to take a more apporiate course rather than scant evidence review with no real possibility to repesent or defend myself without huge cross border legal fees? Sorry but this seem lie guilty until proven inniocent and based on the scantest of evidence all because it's less than £10,000. It seems all too easy to take someone for a £10,000 ride if you cand do it on this simplified basis! Infact it looks like this ha what the tenant has done. She never once asked for her deposit to be protected or even enquired about it until ashe was about to leave. And I never signed anything that required me to do so, nor even got a cpy! Not happy and it seems teh law is an *** if that's what it allows people to do. Guilty until proven innocent, a catch 22 situation. If she shared all that stuff thru disclosure/Part 8 her case would be very muddy indeed and not at all clear cut as you are saying it should be for small claims/"contract breach".
Expert:  Jamie-Law replied 2 day ago.

Ok - so Part 7. If you want disclosure you should ask for it.
If you do not get it put it when you get the Directions Quesntionnaire which will come after you file your defence.

Does that clarify?

Jamie-Law, Solicitor
Category: Law
Satisfied Customers: 1345
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Customer: replied 2 day ago.
yep thanks seems like what i will have to do.
Customer: replied 2 day ago.
i cant rate this as more than ok really because it took me a long time to get there and I am not happy with the legal result. that last pârt's not your fault I know. Thanks for yiur assistance a the same.
Expert:  Jamie-Law replied 2 day ago.

All the best.

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