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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 14265
Experience:  I have been practising for 30 years.
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I need legal advice around appealing a decision following a

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I need legal advice around appealing a decision following a landlord / tenant dispute over deposit protection
JA: Where are you? It matters because laws vary by location.
Customer: London
JA: What steps have you taken so far?
Customer: Part 8 hearing has taken place
JA: Anything else you want the lawyer to know before I connect you?
Customer: I need advice around a judgement as I believe the case was brought in respect of one breach, but the judgement was based on another

Good afternoon. I will assist with your question - be aware this is an email not chat service therefore maybe delayed in replying.

who are you -landlord or tenant?

what is the dispute re deposit protection?

Customer: replied 5 months ago.
Hi, thank you for responding. I am the landlord.I was, unfortunately, unaware of the requirement to protect a deposit when I let the property to a tenant and had no knowledge of this during the tenancy. After moving out, having been in the property for 6 years, I returned the tenant's deposit within a few days and with no deductions. However, the tenant then raised a claim for non-compliance. In his claim, which was raised on 23 October 2018, he stated that the deposit was paid on 24 September 2012. This meant the claim was raised exactly 6 years and 30 days after the deposit was paid, so effectively on the last day that he could do so, otherwise the claim would become statute barred. On the day of the hearing I noticed that the deposit was actually paid on 23 September 2012, so he had actually raised the claim one day late, meaning that it was, in fact, (to the best of my knowledge) statute barred. I mentioned this in the hearing and, while the judge accepted my reasoning, he refused to rule on it it and, instead, decided that I was liable to pay compensation because a breach was also committed at a later date, when the te***** *****ged from fixed to periodic. This raised a few questions from me, which he dismissed.First of all, is there an issue with the claim, as it states on the claim form the tenant paid a deposit on the wrong date (trivial, I suppose, but worth asking).Secondly, with the recent changes to the law, is it, in fact, the case that a breach occurs when the te***** *****ges to periodic and, if so, would that still apply if the breach occurred prior to the change in law.Thirdly, and most significantly, can an award be made on something that the tenant hadn't claimed for? His claim was in relation to the initial tenancy, which began on 25th September 2012, but the award was made based on the change to a periodic tenancy, which began 6 months later.The judge ordered an award of 2.5 times the deposit in favour of the claimant, based primarily on the length of the breach, which also seems unfair as it was effectively one single breach. The fact that I was unaware didn't change throughout the tenancy. I am not a professional landlord and this was a first offence so I did, perhaps foolishly, expect a degree of leniency and understanding.I hope that makes sense, but do please feel free to get in touch if you need more information.

if you failed to protect a deposit there is a claim and that claim perpetuates every time the tenancy is renewed and that would include when it became periodic.

It is UP TO 3 times the deposit on each case, plus the return of the deposit, but not necessarily three times. Just up to. It can be less but it can’t be more.

The payment of the deposit on the wrong date in the details is only relevant if it makes a difference otherwise it would be allowed under the slip rule.

Agree with you that this legislation is completely unfair because it penalises a landlord for what is a minor infarction and it’s a windfall for the tenant when the tenant hasn’t actually suffered any loss.

Whilst it may seem like one breach, court views it differently.

You are potentially on the hook for six times the deposit!

If the claimant had solicitors there would normally be a couple of grand of solicitors costs on top of that.

If you wanted to appeal this, you have 21 days to appeal and you can only do so if the judge has made an error of law or an error of fact.

2 breaches and an award of 2.5 times is not bad.

Even if you manage to appeal the first one, you have no grounds to appeal the second one and it could well be that the award will remain the same.

I’m sorry, I know it’s not the answer you wanted.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

If you still need any points clarifying, I will still reply because the thread does not close.

Best wishes.

FES

Customer: replied 5 months ago.
Hi, please can you clarify a couple of points for me as I'm not sure my initial point was fully understood.First of all, the claim was for a failure to protect the deposit at the start of the initial, short assured tenancy agreement. This claim did not proceed as I pointed out that it was statute barred. There was no claim raised for failure to protect the deposit when the te***** *****ged to periodic. In fact, the judge pointed out that the claimant could not be awarded a claim for two breaches as he had only claimed for the breach during the initial tenancy agreement. However, he then contradicted himself by awarding a claim based on the change to a periodic tenancy.Question - Can an award be made for a breach during the change to a periodic tenancy when this is not what was claimed for in the original court documentation?The award of 2.5 times the deposit was for a single breach, not two breaches. I feel this is harsh, but I am unable to contest because, as you say, I can only do so on an error of law or an error of fact. What I would like to investigate further is whether I can appeal against the award as it was based on the second breach, whereas the claimant's case was against the initial breach. In fact, the claimant had no idea that a second breach had even occurred until this was pointed out by the judge.

thank you for the clarification. That wasn’t apparent from your initial post.

If the claimant raised the claim based upon the first alleged breach and you successfully defended that on whatever grounds (limitation in your case) then it is not for the judge to raise and plead on behalf of the claimant and the judge should have thrown out any claim in respect of periodic which was brought up on the day purely because it wasn’t claimed/pleaded in the initial proceedings.

It is for the claimant to do that, not the judge.

So the answer to your question is that it should not be.

Being brutally honest with you, I think the judge has gone beyond his remit.

Customer: replied 5 months ago.
Thank you. He definitely seemed to be very much anti-landlord and in favour of the defendant! One final thing I'd like to check, if you don't mind...As I mentioned, I pointed out in court that the claim for the breach on the initial tenancy should be statute barred. Can you please confirm my thinking around this? The law states that the 30 day period begins on the day the deposit is paid, which was, in this case, 23 September 2012. By my understanding, the latest I could then have protected the deposit to remain within the law would have been 22 October 2012, which means the breach first occurred on 23 October 2012. As the statute allows for six years for a case to be brought to court, the claimants case would be invalid as it was brought on 23 October 2019, 6 years and 1 day after the breach occurred.

Limitation is a shield and not a sword.

Courts will allow cases to be heard out of time.

I don’t think that’s correct but I don’t make the law, I just regurgitate it.

The statute is clear that it six years, not 6 years and a couple of days because the guy was late!

In my opinion it should be that a miss is as good as a mile.

The time limit for liability to protect the deposit and provide the information is 30 days and in my opinion that is when the cause of action arises, not when the deposit is paid. It’s when the breach occurred.

The breach doesn’t occur until midnight on the 30th day

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 5 months ago.
Thanks. Appreciate it is more of a shield but I thought legislation now made it a pretty clear demarcation on deposit protection. I guess it does give me something to argue :-) Now I just need to get my s**t together and raise an appeal around the award for something that wasn't claimed in the hope I can save £3,000! I wouldn't mind, but I was a good landlord and he got his deposit back straight away. It's an expensive 'fine' for not knowing something. Definitely an unfair law. Anyway, I appreciate the help. I'll add a 5 star rating to make sure you get that pat on the head ;-)