Tenancy Deposit Scheme

With so many more people becoming landlords nowadays, it’s all too easy to fall foul of the very strict rules and regulations in this area.  It’s a very good idea to take proper legal advice from a Landlord & Tenant specialist, like Adrian Boulter at Curwens.

This briefing explains what a tenancy deposit scheme (TDS) is and what a landlord’s obligations are under a TDS.

What is a tenancy deposit scheme?

A landlord under an assured shorthold tenancy (AST) must protect a tenant’s deposit by using an authorised tenancy deposit scheme (TDS) operated by an approved scheme administrator.

A TDS has two main objectives:

  1. To ensure that, when a tenant pays a deposit, it will be protected and returned to the tenant at the end of the AST, except when the landlord has a legitimate claim on it.
  2. To resolve disputes between landlords and tenants using dispute resolution rather than via the courts.

There are two types of TDS:

  • A custodial TDS requires a landlord to pay its tenant’s deposit to a scheme administrator, who holds the deposit until the tenancy ends.
  • An insurance TDS where the landlord retains possession of the deposit, but secures it by paying a fee and insurance premiums to the scheme administrator.

What are a landlord’s obligations under a TDS?

Within 30 days of receipt of the deposit a landlord must:

  • Comply with the “initial requirements” of the TDS.
  • Give the tenant certain prescribed information. This information should be provided directly to the tenant. It is not sufficient to merely identify the TDS and let the tenant make their own investigations.

What sanctions are available if a landlord fails to fulfil their obligations under a TDS?

  • If a landlord fails to comply with the TDS, a tenant can apply to court even if the tenancy has ended.
  • The penalty for failing to comply with the TDS will be between one and three times the deposit.

If you are an inexperienced Landlord, you can see that dealing with this can be quite tricky and is a massive trap for the unwary.  If you need any help with Landlord & Tenant issues, contact Curwens’ expert, Adrian Boulter, on 0208 363 4444 or email him  Adrian.boulter@Curwens.co.uk

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“I’ll see you in Court!”

Recovering a trade debt 

There is a lot to consider before starting court proceedings in England & Wales:

  • The court has to deal with matters “justly and at proportionate cost.”
  • Do a cost/benefit analysis before starting proceedings, including the cost of enforcement.
  • Check the other party is good for the money – there’s no point incurring the cost of litigation if you can’t enforce the judgment.
  • Don’t start proceedings if you don’t intend to see them through. Unless it’s a small claim (less than £10,ooo) you’ll almost certainly be liable for the other party’s costs if you discontinue the claim.
  • Be careful about always threatening to sue if you don’t mean it – don’t just “cry wolf” – the word will get round to your contacts and damage your reputation.
  • Recovery of your legal costs depends on:
    • who wins or loses;
    • your conduct as well as compliance with court rules and orders (for example, a failure to comply with a pre-action protocol can have cost consequences even for the party that wins);
    • when the matter ends (whether before or after proceedings have been started);
    • the financial value of the claim and the “track” the claim is allocated;
    • how the claim is concluded (whether by agreement or at trial).

Reaching a settlement

Litigation can be disproportionately expensive to the sums being argued about, the outcome is uncertain, the court is only able to offer a limited range of remedies and litigation often destroys any prospect of the parties resuming a commercial relationship so consider alternatives -for example:

Negotiation

  • It might be possible to recover the debt or agree an alternative future course of action by opening a negotiation with the debtor.
  • This can be done verbally or in writing (which includes e-mails).
  • Parties usually negotiate on a without prejudice basis.
  • The without prejudice rule generally prevents statements made in a genuine attempt to settle an existing dispute from being used as evidence of admissions against the party which made them.
  • This rule means that, if the negotiation or mediation fails and the business then issues court proceedings, any statements that the parties made in a genuine attempt to settle the dispute (whether in writing or orally) will not be put before the court in the proceedings.

Mediation

  • Mediation is a flexible, voluntary and confidential form of dispute resolution in which a neutral third party helps parties to work towards a negotiated settlement of their dispute.
  • The parties retain control of the decision whether or not to settle and on what terms. 

Doing nothing

You can always simply write off the sum but before taking this step, consider the:

  • Size of the debt.
  • Likely cost of recovering the debt.
  • Importance of the current relationship between the parties.
  • Likelihood of maintaining an on-going commercial relationship between the parties.

norma.morris@curwens.co.uk

http://www.curwens.co.uk

http://www.justice.gov.uk

 

 

 

COMMERCIAL LANDLORDS AND TENANTS

Landlord and Tenant law is a notoriously tricky area. It’s all too easy to get into difficulty. Whether you’re a Landlord dealing with a commercial lease or residential tenancies, chances are that, before too long, you will come up against a difficult tenants.

In the commercial world, Landlords will be faced with arguments about issues with the Lease – break clauses, service charges, late payment of rent, obligations for repairs and dilapidations. If you are the commercial tenant, you will be on the other side of this, looking to minimise your obligations under the Lease. It’s very important for anyone in this position to get the right kind of legal and commercial advice, particularly with regard to dilapidations where an experienced surveyor can carry out a valuation to help negotiate a settlement.

For residential landlords, whether you have just one property or a large portfolio, make sure that you take up to date advice on matters such as like enforcing Tenancy Agreements or evicting a non-paying tenant at the end of the tenancy. It’s so easy to make a simple mistake when dealing with a residential tenant because if your application fails, it can leave you out of pocket for the outstanding rent and the Court costs.  Even worse,  you could still be stuck with that tenant and have to start again.

For the unwary, this is a very easy trap to fall into.

Our advice is – take good legal advice!

https://www.curwens.co.uk/business-services/property/landlord-tenant/

“What’s in a name…..?”

Quite a lot, really, in these days of badges and qualifications.  When you have a legal issue and you don’t already have your own family solicitor you’ve used before, how do you know which firm is “up to scratch” – how do you choose the “right” law firm for you.

For law firms, start by talking to your contacts and get a personal referral. Yes, you can just do an internet search and start ringing round, but a personal contact is always the best “soft” way to go about this.

If you do have to rely on the internet, there are certain things you can look for that will give you reassurance, such as a recognised accreditation.  For firms of solicitors, the important badge to look for is Lexcel which is awarded by the Law Society.

Lexcel is the Law Society’s legal practice quality mark for excellence in legal practice management and excellence in client care. It’s not awarded lightly and, once it is awarded (following an independent audit) firms have to have an annual audit for it to be continued.

Other specific accreditations are available – here are a couple of examples :

Conveyancing Quality Scheme logoFamily Law Accreditation Scheme logohttp://www.lawsociety.org.uk

Try calling 2 or 3 firms and see how your call is dealt with.  You should be able to speak to someone with knowledge of your legal issue at least for 5-10 minutes (free!) so that they can assess whether or not they can help you and, if they can, how much it will cost – either as a set amount, such as for a property sale, or by hourly rate which is used in a family case.

It’s very much how you feel about your lawyer – you don’t have to like him or her but it will help, particularly in areas such as family law – but also, you have to feel confident and comfortable.  Unless you have an emergency situation, such as an injunction, take time to speak to more than one law firm and take time do consider the “best fit” for you.

If you need any help with this, feel free to give me a ring – Norma Morris – 0208 363 4444 – norma.morris@Curwens.co.ukhttp://www.curwens.co.uk