► DEPOSITS 3 - What if I don't get my deposit back?

Deposits covered by tenancy deposit protection
All three government authorised schemes offer free Alternative Dispute Resolution (ADR) services. Both landlord and tenant have to agree go to ADR. If they do so, the decision made by the adjudicator will be binding. Where the dispute concerns a deposit protected by an insurance based scheme, the landlord will be required to hand over the disputed amount until the dispute is resolved. If either the landlord or the tenant does not agree to use the ADR service the dispute can go to court. The deposit will be held by the scheme until the court reaches a decision.

Going to court: small claims track cases
This section is applicable to deposits not covered by tenancy deposit protection and protected deposits where there is a dispute and the parties have not agreed to ADR.

Most legal cases which involve claims for less than £5,000 are allocated to the small claims track in the County Court. SUAC has experience of dealing with small claims cases and can help students at every stage of the process. Alternatively, solicitors and legal advisers who have contracts with the Legal Services Commission can provide advice and assistance (but not normally representation at small claims hearings) under the Legal Help Scheme. To find out if you qualify for free legal help go to the Community Legal Service website www.communitylegaladvice.org.uk

Final warning letter
Before issuing a claim you need to send a final warning letter to your landlord. This is known as a “letter before action”. You do not need to go into a lot of detail but you must make it clear you now intend to go to court.

Sample letter

Ms Bloggs
1 Bedsit Street
Coventry
CV2 1XX

Mrs Bond
1 Paradise Mansions
Coventry
CV4 1 PP

18 July 2010

I am writing to inform you that if I do not receive my £300 deposit refund within 14 days of the date of this letter, I now intend to issue a county court claim against you. Costs and interest will be added to the amount claimed.

Yours sincerely .....
 

Court fees
Many students do not have to pay court fees or if they do they usually qualify to pay at a reduced rate. To apply for a concession on fees you need to complete form EX160. You can download the form and the accompanying explanatory leaflet EX160A from the Court Service website www.hmcourtsservice.gov.uk If you have to pay fees the following apply

Starting a claim
Claim issued in court Money claim online
Up to £300 £30 Up to £300 £25
£300.01 to £500 £45 £300.01 to £500 £35
£500.01 to £1000 £65 £500.01 to £1000 £60
£1000.01 to £1500 £75 £1000.01 to £1500 £70
£1500.01 to £3000 £85 £1500.01 to £3000 £80
£3000.01 to £5000 £108 £3000.01 to £5000 £100

Allocation fee
If your claim is for money and is for less than £1500 there is no allocation fee.

For claims between £1500 and £5000 the fee is £35. This is payable by the claimant.

Hearing fee
Up to £300 £25
£300.01 to £500 £50
£500.01 to £1000 £75
£1000.01 to £1500 £100
£1500.01 to £3000 £150
More than £3000 £300

If you win your case, you get your fees back. You may also be able to claim other costs such as loss of earnings if you have to take time off work to attend a hearing, but recoverable costs are very limited in smalls claims cases.
Claiming online
Claims for fixed amounts of less than £10000 can be made online provided the claim is against no more than two people and the address of the defendant(s) is in England or Wales. Fees are payable by credit card or debit card but you cannot claim online if you qualify for a fee exemption or remission. See the Court Service website for more details www.hmcourtsservice.gov.uk

Filling in the claim form
If you cannot claim online or prefer not to do so, you can make a claim using form N1 (and accompanying notes form N1A. Copies are available from any court and the Court Service website www.hmcourtsservice.gov.uk

Defendant
The defendant is the person against whom you are making your claim. If you do not know their address try searching the Land Registry website www.landregistry.gov.uk If the defendant disputes your claim, the claim will be transferred to the defendant’s local court. This could mean you have to travel to any hearings.

Brief details of claim
A typical claim might read - “Return of £300 deposit paid in connection with former tenancy at 1 University Street, Coventry.”

Value
If you are claiming a fixed amount of money write the amount you are claiming followed by the words “plus statutory interest from (insert the date on which the deposit should have been returned to you) at a daily rate (insert rate of interest). For information on how to calculate the interest rate see the leaflet EX302 How to make a claim available form the Court Service website www.hmcourtsservice.gov.uk

If you are not claiming a fixed amount of money and want to make sure your claim stays within the small claims track, you need to write “I expect to recover not more than £5000.”

Court fee box
If you are applying for a fee remission you should leave this box blank. Submit your completed EX160 with your claim. If your application for remission is rejected or only partially successful the court will return your form to you to amend.

Particulars of claim
Although there are no set rules, this section should probably cover –
• The amount of the deposit and who you paid it to
• The terms on which it was paid (the terms in your contract)
• Details of any previous attempts to get it back, and
• Details of any response


A typical example might read:

“The claimant is a former tenant of 1 University Street, Coventry. The claimant occupied the property on a fixed term assured shorthold tenancy from 1 September 2009 to 30 June 2010.

The defendant was the claimant’s landlord. The claimant paid the defendant a deposit of £300. The terms of the contract stipulated that the deposit would be returned to the claimant at the end of the tenancy provided the claimant 1) left the property in good order, 2) paid all the outstanding bills and 3) returned the keys.

The claimant complied with these conditions in full and has requested a refund on numerous occasions. The defendant has failed to return the deposit and has given no explanation to the claimant.

The claimant therefore claims a refund of £300 plus court fees and interest from the date the deposit was originally due to be refunded.”

If your claim is in connection with a protected deposit you should also identify which scheme and explain that it was not possible to resolve the dispute through ADR. The particulars of claim can be included in the space provided on the form or attached as a separate document.

If the particulars are attached as a separate document use numbered paragraphs and only write on one side of the paper. The paper should be signed and dated and must include a statement of truth (you can use the same wording as on the N1 form).

What happens next?
Make three copies of your N1 form and particulars of claim (if separate). Take or post all three copies to the court along with your completed EX160 or the relevant fee. Cheques should be made payable to HMCS. The court will send a copy of the claim to the defendant. When the defendant receives it s/he can either;
• Pay the amount claimed
• Admit all or part of the claim and ask for time to pay, or
• Dispute the claim

The defendant is normally given 14 days to reply this but can be extended to 28 days. If the defendant fails to reply within the time limit, you can ask the court to enter a judgement by default. The court will send a copy of the judgment to the defendant and will also inform Registry Trust Ltd. This will make it difficult for the defendant to obtain credit. However the court will not take any other action against the defendant unless you decide to enforce the judgement (see below).

If the defendant disputes the claim, the court will send you both the allocation questionnaires which must be completed and returned by the set date. If you fail to return the allocation questionnaire on time the court can order that the case is struck out. If you need help completing the allocating questionnaire contact SUAC. Be aware of the possibility that the defendant might issue a claim against you. This is called a counterclaim. If the defendant issues a counterclaim you will need to submit a defence to the counterclaim. This must be returned with the allocation questionnaire.

Before the hearing
You will receive written notification of the date and time of the hearing. You should contact the court immediately if you are unable to attend. The letter you receive back from the court will also contain directions......The standard direction in a small claims track deposit case is to send copies of your evidence and witness statements to the court and to the defendant no later than 14 days before the hearing. Even if you are the only witness and you will be attending the hearing in person you still need to supply a witness statement.

The letter from the court might also say that your case has been referred to the Small Claims Mediation Service. If this happens you will be offered a free mediation appointment. This can be a telephone appointment. If both sides consent to mediation and agreement is reached, the agreement is legally binding so there is no need for a court hearing.

Witness statements
A witness statement is where you explain what happened in your own words. It should be set out in numbered paragraphs and structured chronologically if possible. Only write on one side of the paper. Any statements should be headed with the following information –

• Name of the court
• Claim number
• Name of the claimant
• Name of the defendant
• Date and time of the hearing
The first paragraph should identify the author of the statement and, if necessary, the person on behalf of whom it is written. Examples –

“My name is Jane Bloggs. I am the claimant in this case. I live at 1 Bedsit Street, Coventry. I am a student in the Faculty of .... at Coventry University.”

“My name is Joe Bloggs. I live at ... This statement is made on behalf of my sister who is the claimant in this case.”

The statement should conclude with a statement of truth e.g. “I believe that the facts stated in this statement are true.”

At the hearing
Although most claimants represent themselves at small claims hearings, landlords sometimes use a solicitor even though they are unlikely to recover more than a fraction of the costs involved. This can be intimidating but should not automatically mean that you lose. In fact, most judges are very sympathetic to claimants who represent themselves and will usually try and make sure they fully understand what is going on and the implications of any judgement made.

Small claims hearings are open to the public but usually take place in small rooms in front of a district judge who sits alone with no other officials present. The hearings are relatively informal (in comparison to other court hearings) but anyone who attends is still expected to behave appropriately and tell the truth.

The judge will normally ask the claimant to explain their case first. The judge will then ask questions. The defendant will then be allowed to ask questions and comment on what has been said. The same thing will then happen in reverse with the defendant explaining their case and being questioned etc. The judge will then make a decision, normally with both parties still present in the room.

Appeals
You can appeal against the decisions in small claims cases but the grounds are very limited and you have to act quickly. See the Court Service leaflet EX340 I want to appeal available from the Court Service website www.courtsservice.gov.uk for more information.

Getting your money
Deposits covered by tenancy deposit protection
If you win your case your deposit will be refunded by the relevant scheme.

Deposits not covered by tenancy deposit protection
If you win and the defendant does not repay the deposit you will need to take enforcement action. There are four methods of enforcement. These are;
• A warrant of execution
• An attachment of earnings order
• A third party debt order
• A charging order

A warrant of execution is probably the best known method. It gives court bailiffs the authority to collect the money you are owed or, alternatively, take some of the possessions belongings to be sold at auction to raise the money. To find out more about enforcement go to www.courtsservices.gov.uk
 

 

 

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