Wednesday, October 14, 2009

Tenant in despair after DPS pays deposit to landlord


Note - the Landlord Law Blog has now moved to www.landlordlawblog.co.uk.

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Most of the complaints I hear about regarding the Deposit Protection Service (DPS) are from landlords. However they are not the only sufferers. Today I received this cri de coeur from Miss C:

"The DPS paid my deposit back to my landlord in July 2009, despite me claiming it back. They claim they wrote to me, but I did not reply to their letter, so they gave the deposit to the landlord.

When I phoned them to find out what was happening to the deposit, they told me it had been paid to the landlord, I stated I had received no communication from them, asked why they had not phoned, they said they are not allowed to. I then asked why they had not e mail me, to see why I had not responded, they said they did not have to.

I have made 3 or 4 complaints to them, and sent a letter to their chief executive, who said they sent me a letter, I asked if he had proof of posting, he said no.

I am now in no mans land, I borrowed the deposit from my parents, so I have no deposit to put down on a new let, where do I go from here?"
Where indeed. There seems to be little comeback in this sort of situation. Miss C tells me
"The whole point is, they say they posted a letter to me, which I did not receive, and because I did not answer it they gave my deposit to the landlord. I asked them what happens if you are on holiday, they never replied. Surely they must be accountable to somebody?"
Does anyone have any suggestions? Have you had a similar experience with the DPS? If so, please leave a comment.

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9 comments:

Nick said...

Do the DPS have to prove that they wrote to the tenant? Surely in the environment of proof the DPS must be required to prove that the tenant received their letter?

Has the tenant contacted the Landlord? Surely a decent Landord would return the deposit? Of course a decent Landlord wouldn't be using a discredited service in the 1st place!

LandlordTenant said...

Have you tried consulting any legal counsel?

Landlord Tenant Forms

chris said...

perhaps the real question here is why was the deposit returned to the landlord, did he claim it? and if so, what for?
rent arrears, disrepair?

if the landlord is holding the deposit with no just reason then small claims for its return should do the trick.

Francis Davey said...

Blame the civil servants. Schedule 10 of the Act as passed by parliament contains no such provision. The offending rules were added by regulation.

Its a mess.

For one thing the courts (and the law in general) continues to desperately cling to the presumption that post sent is in almost all cases post delivered. We know that not only that this is not true but that it is in fact increasingly unreal. Lawyers and courts tacitly admit this because they make use of the DX service, but there is no overt admission.

One interesting point is that the regulations impose a 14 day time limit (the "relevant period") only after the notice is received by the tenant. Unless there is a deeming provision somewhere which I have forgotten, this means that you could argue that the money was paid to the landlord in error and your tenant is still entitled to it (as a matter of literal statutory construction that follows, though on a purposive construction a court might say that that would make a nonsense of the provision - but its a mess anyway).

A properly constituted notice under regulation 4A will be accompanied by an affidavit from the landlord. You might ask to see that and consider what it says.

One defect in regulation 4A (and these provisions in general) is that a tenant is unable to notify the scheme of his or her address so as to preclude the operation of the regulation and prevent this kind of situation arising.

Tessa Shepperson said...

I have recieved a response from the DPS, who have been made aware of the idenity of the lady concerned. Their answer is as follows:

“The DPS has reviewed this case -

Both parties agreed to use the free adjudication service provided by the DPS. The Terms of which clearly explain the process ie, both parties will have 14 days to provide their evidence. The landlord provided his but nothing was received from the tenant, therefore the landlord won his claim. Even if the tenant wasn't aware that they would be sent an evidence form, we would have expected them to contact us after a couple of weeks of inactivity?

Also, their account on the website would have been showing "awaiting tenant's evidence" throughout the whole process and could have been viewed at any time by both parties.

I'm afraid it simply isnt practical for the DPS to chase either party for evidence. However, it is possible to seek an extension to the deadline if we are contacted before the expiry date, for example, if you are going on holiday.”

Mcdonaldtaf said...

Nick - The DPS is the scheme run on behalf of the Government and to the best of my knowledge is not a 'discredited service'.

My reading of the post and comments would suggest that the Landlord may have had a case to recover the money (rent arrears / dilapidations). I'm sure he wouldn't have just written in asking for it in case no one claimed.

There are agreements made and information provided on the correct process. How can the DPS be held accountable for someone not following a clear process?

I have a degree of sympathy for the DPS who are regularly criticised for being pro tenant. They can't win can they? @mcdonaldtaf

Tessa Shepperson said...

I have heard from the lady concerned, who is grateful for all the comments, and would like to make a few points:

- the landlord is a lady not a man
- she did contact the DPS after two weeks
- she was not aware about the account not being updated online, and this is the first time they have mentioned this to her in all their correspondence
- she still thinks they should have sent her a warning email

She also does not see how they can operate unregulated but says "I suppose this is reflected in the service they provide".

I think both parties will have to agree to differ in their views about this case.

Anonymous said...

i too am disgusted by the treatment received by the dps my case went to the adr and i do not feel that they have taken any of my comments that i provided as my evidence into account and despite the landlord providing no receipts for any of the work HE CLAIMED he had to do to the property they awarded him half of my deposit.

Anonymous said...

I have a newly-aquired interest in the TDS as I have student children and though I am a property lawyer, I have little experience in the L&T field of AST agreements. In the case in which I have an interest, the landlord's agent takes the deposit and it is held under the scheme. At the end of the tenancy, the landlord's agent gets the deposit back from the scheme and returns what it thinks fit to the tenants - short of some £250 or more. Isn't this back where we started before the scheme, leaving the student tenants cross and confused, having had no notice of the withdrawal from the scheme, no details of the deductions nor evidence of work for which they have been charged? Added to which, the tenancy ended in August, the Landlord's agents would not return the deposit until the utility bills had been paid and the shortfall deposit was not picked up in the students' bank accounts until about the end of October/beginning November when they are supposedly out of time. These things only get understood by tenants in the breach, when it is too late. And they are bullied by the landlord's agents into thinking that they have absolutely no rights whatsoever. I can sympathise with those who let to students but I can also see another side to this market now and I don't like it!