This article, about the Tenancy Deposit Schemes (Scotland) Regulations 2011, is inspired by my experiences pursuing my former landlord in Court, due to her non-protection of my partner’s tenancy deposit. In Scotland, securing a tenant’s deposit in an approved scheme is a legal requirement as a result of these Regulations, and as far as I am aware, I am the only lay representative to successfully bring court action under the 2011 Regulations, with my former landlord sanctioned two times the amount of the original deposit, plus expenses. I have obtained a wealth of knowledge on the Regulations and the realities of pursuing legal redress in this area, and through this article I wish to share the insights I have gleaned in order to inspire other tenants in similar situations to take legal action; this is particularly important given, as I will discuss, that the current direction of legal judgements in this area appears to be going against the spirit of the Regulations and, if this trend continues, are at risk of rendering this progressive legislation obsolete.
It is intended that the following information will diminish the whip hand of the unscrupulous landlord, and in the best case outcome it will encourage law makers to have a look at how the Regulations might be strengthened going forward; but I would caution however, that this is not intended as a hate piece on landlords. There are many upstanding landlords who follow all of their obligations to the letter and sometimes there are unfortunate situations where landlords are the victims of rogue tenants. However, the Private Rented Sector is in desperate need of regulation and reform, as many tenants find themselves the victims of rogue landlords. The law ought to be a crucial mechanism in the quest to improve standards in the Private Rented Sector and change the culture of entitlement which landlords have enjoyed for far too long. The 2011 Regulations, when enforced appropriately, are just one important component of this effort, enhancing tenants’ rights to redress and deterring landlords from shirking their responsibilities. Standards in the Private Rented Sector will be further improved by the introduction of additional legislation, such as the Private Housing (Tenancies) (Scotland) Act 2016.
The first part of this article gives an overview of the Regulations, why they were introduced and why they matter; thereafter it provides an analysis of the evolving body of caselaw which exists to date, along with a discussion on what can be done to ensure the Regulations are workable and achieve what they were originally designed to do. Parts 2 and 3 of this article recount my experiences as a lay representative pursuing my former landlord in respect of her non-compliance with the Regulations; I reflect on my experiences and eventual success in what was an arduous two year process, and I also provide step-by-step practical guidance to others in a similar position who may wish to pursue court action. My intention is to make tenants aware of their rights and empower them to take action where appropriate, but a friendly word of caution – this is a process which is not for the faint hearted!
Introduction to the Tenancy Deposit (Scotland) Regulations 2011
The 2011 Regulations were introduced due to concerns that rogue private landlords would unfairly withhold tenants’ deposits at the end of their tenancy. This led to the Housing (Scotland) Act 2006 making provisions for Scottish Ministers to introduce regulations for the approval of tenancy deposit schemes in Scotland. The Tenancy Deposit Scheme (Scotland) Regulations 2011 came into force on 7 March 2011.
The legal duties on private landlords in Scotland who receive a tenancy deposit are as follows:
There are a few exceptions to this – resident landlords, for example, do not need to register deposits. In instances where the landlord uses a Letting Agency to handle the tenancy, it is still the landlord’s responsibility to ensure the deposit is secured. There are currently three approved schemes which landlords can use. These are SafeDeposits Scotland, My Deposits Scotland and Letting Protection Scotland. These schemes protect a tenant’s deposit for the duration of the tenancy. There is no cost to either the landlord or tenant to register with these schemes.
At the end of a tenancy, the landlord applies to the scheme for repayment of the deposit to the tenant. The landlord can detail any deductions to the amount of the deposit they believe they are entitled to. If the tenant agrees with this, then they will receive the agreed amount back from the scheme. If there is a dispute between the landlord and the tenant over the amount that ought to be returned, then the tenant can apply to use the dispute resolution process provided by the scheme. The dispute process involves an independent adjudicator, who will review any evidence submitted and come to a decision. There can be one appeal of this decision, but after this, the decision is final and binding on both parties. The Dispute Resolution Service means that a tenant no longer has to pursue court action in instances where all or part of their deposit has been unfairly withheld at the end of their tenancy. However, the dispute resolution service also ensures that a landlord can keep all or part of the deposit when a tenant has breached their obligations as stipulated in their tenancy agreement.
Failure to Comply with the Regulations
In instances where a tenant has paid a deposit but the landlord does not register it in an approved scheme within 30 working days and provide the tenant with the necessary information detailed above, then the tenant can apply to the Sheriff Court (via a summary application) and if the sheriff is satisfied that the landlord has failed to comply, then under Regulation 10 of the Tenancy Deposit Scheme (Scotland) Regulations 2011, they must order the landlord to pay the tenant up to three times the amount of the deposit. A tenant has three months from the end of the tenancy within which to pursue court action. In tenancies which are ongoing, the court can order the landlord to pay the deposit into an approved scheme.
As will be illustrated in the case analysis below, the Sheriff will have discretion to take the individual circumstances of each application into account when deciding the amount of financial sanction to apply.
Analysis of Caselaw
As the Regulations are still in their infancy, there is only a small (but expanding) body of caselaw to draw upon at present. However, as I have followed the law in this area closely, I have grown extremely concerned at the direction recent judgements in this area appear to be taking and what seems to me to be a misapplication of the Regulations and what they were intended to achieve. If this direction continues, it appears inevitable that the Regulations will be rendered obsolete.
The original test case of Fraser v Meehan decreed that as the landlord had failed to comply with his duty underRegulation 3, the only issue for the court was the amount which the landlord should be sanctioned. The case made clear that the amount sanctioned under Regulation 10 was not compensatory as it did not refer to any loss suffered by the tenant and was therefore a sanction for the landlord’s non-compliance. It was held that the Regulations had been introduced to address the perceived mischief of landlords failing to return deposits and the regulations would be meaningless if they were not enforced.
As nothing by way of mitigation was offered the landlord was sanctioned three times the tenant’s deposit of £1,150, amounting to £3450, a decision which reverberated throughout the landlord world in Scotland. It is not uncommon for new laws to be applied rigidly at their inception and with no prior caselaw to draw upon it can be seen in Fraser v Meehan that the Sheriff has assessed the intention of the Regulations and sanctioned the landlord accordingly.
In the appeal case of Tenzin v Russell the decision to apply the maximum sanction was upheld and it was stated that the court had little justification for interfering with the amount of the sanction where the Sheriff had “complete and unfettered discretion” within the parameters laid down by the Scottish Parliament. It was held that an admitted failure to comply with Regulation 3 immediately engaged the mandatory requirement that the Sheriff order the landlord to make a payment in terms of Regulation 10.
At [p.19] The Sheriff in the original Tenzin v Russell case detailed that the Regulations do not distinguish between the malicious or the naïve.
“In dealing with non-compliance no distinction has been drawn by the legislators between the careless or devious; the experienced or inexperienced, the culpable or inadvertent. Likewise the strict liability consequences of non-compliance allow the court to promote rigorous application of the regulations as a means of deterrence”.
Accordingly, the defence submission that the landlord had made a “hash of the let” was dismissed by the court.
If we contrast these two cases with more recent cases, it is evident that there is a trend away from the maximum sanction and in some cases, less than the amount of the tenant’s original deposit has been deemed an appropriate financial penalty. This will of course please the more unscrupulous landlord, as the chances are the tenant will not bother to exercise their rights via the Regulations.
It is also notable that in some cases the language of “award” or “compensation” is being used in relation toRegulation 10. Whilst this may just be loose language, there is a difference between a sanction on the landlord and an award for the tenant. The Regulations make clear, as do the early test cases, that the sanction is a monetary penalty as a means of landlord deterrence.
The courts using terms like “award” changes the prism through which the Regulations are viewed and therefore have the potential to alter what the Regulations set out to achieve. This is perhaps a subtle indicator as to why the courts are now interpreting the law in a more lenient manner and one by which is increasingly favouring the landlord.
In the test case Fraser v Meehan, the Sheriff made clear that the purpose of the sanction is to express “condemnation or indignation”, acknowledging that the purpose of the Regulations is to protect tenants and ease the burden on the courts through the provision of the dispute resolution service. The Sheriff acknowledged that such a scheme is worthless if landlords do not comply and so sanctions must be rigorously applied, particularly while the Regulations are still in their infancy.
Therefore, with it being a sanction, and not an award or compensation, it functions as a penalty and was intended to incentivise landlords to comply with the Regulations and deter them from ignoring the Regulations. This means the onus ought to be on the landlord to show why the maximum penalty should not be imposed, rather than it being on the tenant to show why the maximum penalty should be imposed.
In the 2015 judgment of Jenson v Fappiano, the Court stated that “trivial non-compliance” with the Regulations could not result in the maximum penalty of times three the deposit. This is a far cry from Tenzin v Russell where the Sheriff opines the legislators make no distinction between the careless or devious or the experienced or inexperienced and that stringent sanctions must be applied to encourage compliance with the law.
The landlord in Jenson v Fappiano was sanctioned one-third of the tenant’s £1,000 deposit. Unfettered judicial discretion (outlined in Fraser v Meehan) was applied having heard evidence on a dispute over rent arrears and an unsuccessful eviction attempt by the landlord. The language of “award” was used in this case and mention was made of it being the landlord’s first letting experience.
So, despite the strict liability nature of the Regulations, it can be seen that broad value assessments are being applied prior to any sanction being laid down. Perhaps, this case is somewhere in the middle, as there are clear mitigating factors, which the Regulations do permit.
Therefore, to properly evidence the pendulum swing towards mitigation being applied in favour of landlords – it would be useful to look at the case of Kirk v Singh. In this case it was noted that there are differing approaches in respect of calculating the appropriate sanction, but the preferred approach adopted by the Sheriff was the one utilised in Jenson v Fappiano at paragraphs ,  and  as more consistent with the policy underpinning the legislation, in that, the sanction should be one that is “fair, proportionate and just”, having regard to the seriousness of non-compliance.
Accordingly, it was deemed that a sanction of £500 was the fair, proportionate and just sanction having regard to the maximum available. The tenants deposit was £380, therefore the maximum sanction available to the Sheriff was £1140.
In this case, the tenancy started on 31 January 2013 for an initial six months. The deposit was not paid in to the approved scheme by the landlord until August 2014, so even though the deposit was unprotected for well over a year, including the whole period of the initial let, this was deemed a mitigating factor.
The Sheriff highlighted there was nothing to suggest this was a willful default by the landlord, which of course goes against the verdict in Tenzin v Russell, or that he had systematically been in default in respect of a number of tenancies. However, it was perhaps relevant given the landlord acted through his agent, and although ignorance is no excuse, it is a factor which the sheriff considered when exercising his discretion. It is also notable that the deposit was returned to the tenant at the end of the tenancy. By contrast, in Fraser v Meehan, return of the tenant’s deposit was not considered to affect the landlord’s liability in respect of the sanction.
However, the ambiguous and/or changeable nature of what mitigation is permitted in these cases could be argued is resulting in a situation where mitigation can be whatever the Sheriff decides is mitigation. This is coupled with the interpretation of what is a Sheriff’s “unfettered discretion” (Fraser v Meehan) and is resulting in the courts choosing to go in at the lower end of the sanction scale.
Whilst context is always important, the courts need to be careful not to go too far the other way from the stipulation that they “must order the landlord to pay the tenant up to three times the amount of the deposit” and thereby defy the spirit of the Regulations.
After all, these Regulations were designed primarily to jolt the landlord community as a whole into complying with their landlord duties, namely that tenant deposits are paid into an approved tenancy deposit scheme within 30 days of the beginning of the tenancy.
However, it was held that £416 was to be paid to the tenant and £84.00 to be retained by the landlord from the tenant’s £500 deposit. Therefore, despite the Sheriff agreeing that it would contrary to public policy to have entertained his assertions of the tenant’s alleged breach of the tenancy agreement; it would appear however that it has affected the amount of the sanction imposed. This case has been resolved in a manner similar to a Small Claims Procedure, without due consideration to the fact that the 2011 Regulations include a free dispute resolution mechanism, without the need for the Court to hear evidence on peripheral matters.
The Court could argue that the Regulations do not preclude a discussion being held in court on the merits of the landlord retaining a tenant’s deposit. However, that logic hinges upon a negative premise, whereas had the tenant’s deposit in Omale v Barcenas been protected, then free third party arbitration (a chance for both parties to make their case) would have followed with no need to resort to expensive legal action.
Therefore, the almost negligible sanction for the landlord’s non-compliance and consideration of auxiliary factors means that Omale v Barcenas stands out as a case that goes directly against why the Regulations were intended and sets a dangerous precedent where future sheriffs can consider just about any matter in relation to the deposit and all under the auspices of what is fair, proportionate and just.
The tenant’s right to free third party arbitration is positively prescribed for in the Regulations. It follows therefore that the tenant has been prejudiced against due to the failing of the landlord to have the deposit protected, as the tenant has been denied the opportunity of this free service.
If the Court makes allowances for the landlord in respect of the merits or otherwise of retaining the deposit under the guise of mitigation then it spectacularly misses the point.
If the trend towards lenient sanctions continues or there is not a case that stamps authority back on the strict liability intention of the Regulations, a tenant taking their landlord to court will simply become too costly and an inconvenient headache, with landlords once again secure in the knowledge that they have the whip hand when a tenancy comes to an end.
It is also noteworthy that in both Kirk v Singh and Omale v Barcenas that the use of an agent was considered by the Court to be a mitigating factor in favour of landlord, but the onus is always on a landlord to secure the tenants deposit – whether an agent is involved or not. The question of an agent’s involvement by a landlord is therefore moot, as the net effect is one where a tenant is prejudiced against by the direct action (or inaction) of their landlord.
However, I have a little concern that future landlords might be able to play around with this when formulating their lease, so as to avoid having to put the tenant’s deposit (or deposit equivalent) in a scheme, or that it will encourage them to lean on the tenant to accept a “first month, last month” upfront money proposal they might not otherwise be inclined to accept. A securely held deposit gives the tenant leverage and landlords are aware of this. However, a properly protected deposit should be appealing to the good landlord as well, as it is security in the event of a tenant’s non-compliance with the lease and a decision based on evidence submitted at the third party arbitration hearing will settle any disagreement.
Discussion: Sanction the Landlord; not Prejudice the Tenant
If the Regulations are enforced in the way they were originally intended, they will help to protect tenants from exploitation by rogue landlords. People can lose hundreds of pounds to rogue landlords who unlawfully retain their deposit.
The 2011 Regulations ensure all landlords must take their responsibilities seriously or face the consequences, while the requirement to provide tenants with details of landlord registration also helps to tackle the problem of illegal landlords (landlord registration is another legal requirement and failure to do so is a criminal, not civil, offence). If the landlord is genuinely entitled to keep all or part of the deposit then they will be able to do so within the confines of the free third party arbitration service of the tenancy deposit scheme. Therefore, good landlords have nothing to fear from securing their tenants’ deposits. It will, however, give tenants vital protection from those who will seek to withhold deposits unfairly.
A 2016 Citizen Advice Scotland report details that the organisation receives thousands of calls every year about rogue landlords, amounting to more than 6,000 complaints last year, with evidence of multiple cases of landlords failing to meet their legal responsibilities, refusing to do basic repairs and bullying or intimidating their tenants. It said it represents an increase of 23 per cent of such complaints over the previous two years, and amounts to 24 cases every working day. CAS is urging tenants to stand up for their rights and challenge “unacceptable landlord behaviour“.
Enforcement of the Tenancy Deposit (Scotland) Regulations 2011 is an important part of that challenge, but if the courts continue to weaken the Regulations in their judgements, then this crucial avenue for redress for tenants will become entirely unworkable. The Regulations need to be enforced strictly in order to force landlords to comply.
Did the Regulations intend for erroneous disputes to be heard in court when the strict liability law came to pass? The premise of rigorous sanction is about creating an atmosphere where landlords are compelled to adhere to all of their duties. Otherwise, where is the incentive for landlords to comply with the Regulations if they can simply turn up to court and say they forgot to protect the tenants’ deposit or that they are a naïve residential first timer or that they simply had a “bad” tenant”? This is why Courts must rigorously apply sanctions in the event of non-compliance with the Regulations.
It is the legal and cultural norm to tax and/or insure your car with penalties following as consequence of non-compliance with these legal obligations. Sanctions must follow non-compliance of the tenancy deposit regulations, so that securing deposits in an approved scheme becomes the cultural norm as well, which in turn will help to drive up standards in the private rented sector.
Some unscrupulous landlords already appear to lack concern about the Regulations, as the following quote taken from a popular landlord forum online exemplifies:
“To be honest, in my experience, tenant’s [sic] don’t know their arse from their elbow when it comes to their [sic] rights…why would anyone sue a landlord if they hadn’t done this, if they were still living in the property? It’s hardly going to get the landlord running round every time a little thing goes wrong…[I] could just keep hold of the deposit – I’m pretty sure they would never find out what should happen” (referring to the sanction).
A study released in late 2014 found that over half of deposits in Scotland had still not been secured in an approved scheme. I could not find more up to date figures to assess if this situation has improved. However, it makes sense that landlords will pay heed when workable legislation contains the genuine possibility of a sanction hitting their pockets, otherwise the Regulations will be consigned as a nice idea made unworkable by the wide and generous application of the sheriffs’ discretion in the courts. Alarm bells need to sound on this before the Regulations become utterly meaningless. There needs to be a proper and effective – perhaps even trigger – process in place as a consequence of the landlord admitting liability in tenancy deposit cases. At that point everything else is moot and the question becomes one of “what to sanction the landlord?” which we have seen in the early test cases.
The atmosphere of fear might seem unreasonable, but it is absolutely necessary to redress the power imbalance, because for too long tenants have faced the ignominy of timidly requesting the return of what is rightfully theirs, and landlords have been able to ride roughshod over tenants’ rights, as they remain in the position of financial dominance when a tenancy comes to end.
This should be part of wider ongoing progress, combining with advancements contained within the Private Housing (Tenancies) (Scotland) Act 2016, which ensures rents can only be increased once a year, introduces Local Authority rent controls in “pressure areas”, the removing of “no fault” grounds for re-possession, and the introduction of a new system of redress for landlords and tenants via the new Housing Tribunal system. This Tribunal is being set up to avoid cases having to go to court and it is intended there will be no fees for either party if they intend to use this service.
These developments must not be undermined by the weakening of the Tenancy Deposit Regulations, which were to a great extent designed as a protective measure for tenants. The struggle for tenants’ rights must continue as one movement with no weak links in progress, so as to get to a place where the tenant can assess with some predictability what rights and redress are available when their landlord has breached their responsibilities.
So, going forward, there must be renewed consideration of how these Regulations are being interpreted by the Courts and how the law can be amended, or the process by which redress is sought, streamlined to facilitate tenant usage of legislation in the future.
With this in mind, there needs to be a new trend in all actions of this type which stop focusing on the behaviour of the tenants (breaches of lease which would be covered by the third party arbitration service available in the approved schemes) and instead to focus on the conduct of the landlord – failing or refusing to secure the deposit in a scheme. The onus should be on the landlord to prove why the maximum penalty should not be applied. Until landlords, whether professional or amateur, start to behave professionally and develop a customer service mentality, there will always be rogues. It is this strict liability approach to non-compliance and the guaranteed implementation of a severe sanction which is needed in order to ensure the Regulations have the effect they were intended and change the culture of the private rented sector, driving up standards, and reducing exploitation of tenants.
Perhaps, the Private Rented Housing Panel (PRHR) in Scotland (consisting of lawyers, chartered surveyors and housing members) who make up Private Rented Housing Committees, should extend their remit to include in-depth advice or indeed, or their role expanded to take up cases on behalf of tenants, or mediate between the parties.
The PRHR already deals with duties under several jurisdictions relating to the private rented housing market in Scotland, including rent assessment and the “repairing standard” to which all landlords must comply. The infrastructure is already in place and the Regulations would certainly have more teeth if the panel allotted resources to dealing specifically with this issue.
Another issue, which I will tackle in Parts 2 and 3 of this article, is the expense involved in pursuing legal redress for a landlord’s non-compliance with the Regulations. Furthermore, pursuing legal action is an incredibly long and complex process. This ultimately discourages many an exploited tenant from pursuing the legal redress they are entitled to. The following quote from a popular landlord/tenant forum sums up the frustration involved in attempting to exercise rights as a tenant in relation to the Regulations:
“Well found out that I need to submit a summary application to the court and they advise legal help doing that, but the legal help is a fortune. Even if I submit the summary application the whole process could go on for months with the other side paying for a solicitor etc…if I lost I could end up with all kinds of legal expenses! Far more than what I could be awarded of 3 x the amount of my deposit! Is it worth the risk? What’s the point in telling the tenant he/she can claim 3 x the amount of the deposit if Landlord doesn’t protect deposit, [when] the whole process is a massive, expensive complex and potentially you could end up worse off”.
It is possible to pursue such legal action as a lay representative i.e. without the service of a solicitor. This process will still involve some legal expenses for lodging documents and so on, but these will be repaid to you in the (likely) event that you are awarded expenses in the final judgement (this means the other side will have to pay your legal fees as well as their own). There appears to be some confusion about this among tenants, with some online reporting that Sheriff Courts have told them they can only pursue legal action if they have the services of a solicitor. On one of the landlord/tenant forums I used while researching this article, one tenant writes:
“I have been in touch with local court who said I need a lawyer to submit claim, so I spoke to different lawyers who charge more than I could potentially be awarded from the court! So what’s the point in a tenant being told if landlord didn’t protect your deposit within 1 month you can claim up to 3 times your deposit but they fail to tell you that you can not [sic] submit your claim yourself and you have to use a lawyer and the costs of taking action will potentially be more than you will get awarded from the court after you have paid Solicitor fees and court costs”.
The information this tenant received was incorrect. This type of action is known as a ‘Summary Application’ and it can be undertaken as a lay representative. In Parts 2 and 3 of this article, I will recount my experience as a lay representative taking my landlord to court and I will also provide guidance, including a draft of the initial writ used in my case, in order to help empower other tenants to pursue legal redress as lay representatives. It is important for tenants to feel empowered to take action, as once again, landlords will only feel compelled to secure tenancy deposits in an approved scheme if they know there is a significant risk they might be taken to court by a tenant if they fail to do so. This, along with Sheriffs’ applying the strict liability sanction in their judgements, is crucial in order for the Regulations to remain enforceable and have the impact they were intended.
Part 2: Lay representative success in tenancy deposit scheme case and guidance to tenants on the legal process
Lay Representation: A frustrating process
My own case was completed as a lay representative, from the drafting of the initial Writ (an actual copy of which will follow in Part 3), through to case completion, and as far as I am aware, thus far I am the only lay representative to have successfully done so under the 2011 Regulations.
The undertaking amassed nearly two full years and four separate court hearings, on what one might credibly argue is a fairly simple piece of legislation. Yet, at times, I wondered if I was the only person in the world, bar a select few who provided meaningful reassurance, who understood how the Regulations were intended to operate. This is presumably not how the Regulations were intended to make the applicant feel.
Result in My Case
The landlord was sanctioned twice the deposit (plus expenses awarded to the tenant), so including enforcement, this amounted to over £1400. The interest was not added at the court rate, as requested in our Crave, and communicated clearly with the auditor prior to the expenses hearing. However, after the culmination of a two year struggle, we decided to bring the case to a close without the additional psychological torment of further correspondence.
Taking the case to court was not predominantly about the money, it was about tackling our landlord on a matter of principle and we hope to inspire other tenants in a similarly marginalised position to do the same.
However, a note of caution for anyone considering doing the same and that is that the wheels of justice move painstakingly slowly. Our case was fraught with obstacles and exacerbated by our lay representative status. Therefore, as a tenant you should aim to reach some sort of amicable arrangement with your landlord if you can.
I refer to my being a “lay”, which is true. However, when I first raised the case, I was in the final phase of my LL. B “Bachelor of Laws” at Glasgow Caledonian University (GCU) and so benefited from some legal knowledge.
Our landlord was not a registered landlord and did not secure our deposit in a scheme. At the end of the tenancy, when seeking the return of the deposit after we had cleaned the property and left it in the condition it was in when we had entered in, the landlord refused to return any of the deposit.
The catalyst for our action was the refusal of the landlord to return our deposit with any initial attempts at negotiation on our part being met with silence or hostility. We outlined specifically to the landlord the course of events which might reasonably follow non-return of our deposit, including the possibility they would be sanctioned for their non-compliance of the Regulations by the Court. However, we were greeted with numerous flippant responses, including a text which unambiguously read: “See you in court”.
So, the starting gun was fired, although we did not know, or at least fully appreciate it at the time, this was going to be one long drawn out process, including four hearings (one other scheduled hearing was postponed), an appeal to the Sheriff Principal (subsequently dropped when the original Sheriff rectified his original position in his report), two incorrectly issued Extract Decrees and some considerable time negotiating and navigating the enforcement stage when trying to execute the final judgement.
The landlord, hereinafter referred to as “The Defender” was well aware of our perilous financial situation and she also knew my partner’s Mother had recently passed away from cancer, which contributed immensely in our deliberations as to whether to vacate the property. The landlord knew in no uncertain terms that we needed the deposit returned.
It is in circumstances like these that the Tenancy Deposit Regulations were created, so with the threat of legal action and possible sanction, the landlord will be less inclined to try and take advantage of the tenant, who might otherwise be tempted to take less than they are entitled to, such is the unequal power balance between the landlord and the tenant in these types of situations.
The Regulations level the playing field for both the tenant and the landlord, as a securely protected deposit benefits both parties.
Because, the landlord and tenant gain access to a free third party dispute resolution service, where evidence on areas of disagreement can be submitted, freeing up valuable court time and in theory, disputes are resolved fairly and quickly.
It was this free third party arbitration service to which my partner, hereinafter referred to as “The Pursuer” was denied and why we resolutely resisted any participation in discussions on issues on the periphery of our case.
Certainly, in this case, the landlord was short sighted, especially so, when we consider they were not registered as landlords with the Local Authority, which as a criminal, not civil, offence is punishable by a fine of up to £50,000 and a possible ban on renting properties. Interestingly, this never seemed to feature during the court mitigation process, but I highlight it nonetheless.
This was not a small claims matter in the old fashioned tenant/landlord sense. It was a Summary Application brought via Strict Liability Regulations. Thus, the Court also agreeing to hear a counter-claim on a strict liability regulation of non-protection of a deposit was incompetent. Also, the Defender in attempting to counter-claim for money they had already retained was as illogical on their part as it was incompetent for the Sheriff to consider to the counter-claim. A claim would have needed to be brought separately and run concurrently to the tenancy deposit claim. This was rectified much later in the proceedings.
It was this irrelevance in relation to the Regulations which made it unthinkable for us to entertain peripheral matters, as to do so would have been to make a mockery of well-intentioned legislation, which was designed against these types of scenarios unravelling in the courts.
The tenant’s right to free third party arbitration is positively prescribed for in the Regulations. It follows therefore that the Pursuer has been prejudiced against due to the failing of the landlord to have the deposit protected as she was denied the opportunity of this free service.
Our raison d’etre for court action was directly attributable to the landlord’s non-protection of the Pursuer’s deposit. Therefore, it is not a big leap in thinking to suggest that by adhering to a “dirty laundry hearing”, as the Sheriff referred to it at the second hearing while bizarrely encouraging us to ‘settle’ out of court, would be to render attempts at progressive law making obsolete.
When I considered surrendering defeat to what was an exceptionally protracted affair and with my partner’s morale at an all-time low, the doggedness we relied upon was built on the notion that if we could see the case through to completion, we would be in an advantageous and knowledgeable position to assist future tenants, who may also be suffering at the hands of an oppressive landlord.
But, rather than bog readers down on the drudgery of the intimate details, what follows is a summary of our journey. Hopefully, by supplying a narrative of our experience and giving information on the all-important form-filling (available in Part 3), this will enable tenants to pick up the baton of lay representation in the courts, and at the very least, it will provide a few pointers to aid future negotiations with landlords.
There were approximately thirty pieces of communication from us and the Defenders, excluding the process of the hearing on expenses (not well explained) which is a considerable amount, even allowing for the inevitable mistakes made by me as a lay representative.
When I represented at the first hearing, I was unaware I could request a “debate” on what was relevant to be discussed in relation to the Regulations. This procedural possibility only became apparent as part of my later studies, when I was studying for my Diploma in Legal Practice at the University of Strathclyde.
There remains the question of whether the Sheriff would have granted a debate from a lay representative. However, I would ask for one if I found myself in the same situation again and I would urge others to do the same, particularly if the initial calling to court looks as if it is going off-course. If a debate was scheduled there and then or assigned for a future date, this would have provided ample opportunity to pre-emptively tackle the problems we encountered later on.
The following timeline is not exhaustive, rather, it is designed to provide a basic understanding of the main aspects of the case and with that I will provide some descriptive musings from the vantage point of the lay tenant representative.
May – 2013
Pursuer enters into a monthly “rolling” lease with defender. No inventory supplied. Deposit of £450 paid to the Defender. There are serious issues with the competency of the lease. However, these issues have been left out so as to concentrate on substantive elements relating to deposit protection. Six months followed residing in the property at a rate of £450 per month, which amounted to £3150 paid by the Pursuer to the Defender.
December – 2013
Following unsuccessful attempts at negotiation for the return of the deposit and 25 days having elapsed from the end of the tenancy, a letter is sent from the Pursuer to the Defender asking for the deposit to be returned within seven days or legal action will follow. Initial Writ submitted to the Sheriff Court the following month and a date is set for the first hearing.
Note: A tenant has 3 months from the end of a tenancy to submit the completed Writ to the court on this type of action.
January – 2014
Initial hearing which Sheriff postpones due to Defender turning up ill-prepared with no form of defence.
March – 2014
New hearing: Defender admits liability. Sheriff schedules a “proof” scheduled on peripheral matters for later date. Sheriff uninterested in hearing argument from the Pursuer on why conflating two issues was incompetent. Sheriff asked by Pursuer if he could provide caselaw to make his point to which he was flatly denied. Thus, the Defender’s counter-claim was accepted by the Court.
Letter received by the Pursuer some weeks later detailing that the hearing date had been postponed by the Court.
May – 2014
A hearing with the new (second) Sheriff who allows the Pursuer time (28 days) to amend Crave and intimate on the Defender. Diet of proof is adjourned until 17 September.
19 June – 2014
Writ amended and intimated on the Defender.
June 30 – 2014
Letter received by the Pursuer from the Defender confirming the amended Writ has been received.
31 July – 2014
Letter sent to Defender on Pursuer’s behalf from a law firm seeking to negotiate to avoid further court action and thereby reduce the impending vast expenses looming large over the Defender.
Pursuer makes offer of £700, totaling the deposit, plus an approximation of our expenses incurred up to that point.
A phone call was received some days later by the law firm from the Defender’s partner, who made a counter-offer of £200. It is said he spent much of the time referring to cat litter in the wheelie bin and other auxiliary matters.
Even if the Pursuer accepts for argument’s sake the landlord’s assessment, or better still, if the reasonable minded and impartial observer believed the Defender’s submission on whether our character and worthiness was such that we were undeserving of the deposit being returned, the unfortunate aspect of the case having being mishandled, is that the Defender was emboldened to believe she was in the dominant position.
This was on the basis that she was of the opinion they had every right to withhold the deposit, which as we have seen, is a separate issue entirely and one which was designed to sidetrack from the tenancy deposit matter in hand.
Had the Defender been made aware by the Court of the gravity she found herself in then I am confident they would have accepted what was a more than reasonable offer in the circumstances.
However, barring the second Sheriff’s assessment, the theme of the case was one which seemed to focus around subjective prejudices of the Pursuer’s motives in bringing the case and whether or not it was just in the circumstances to retain the deposit.
This offer followed a previous offer at the second hearing where we offered to “walk away” if the Defender returned the deposit, an offer which was refused. The offer of £700 also followed a previous refusal of a £600 offer. The Defender later refused another offer of £1000 (sanction minus our expenses) to avoid the formal enforcement process and added expense falling to her.
At every step along the way we could not have been any clearer that continuing down the road they were on would cost them significantly more in the long run. We certainly cannot be accused of being opportunists, as was stated by the Defender. The Defender’s stubborn refusal to take responsibility was maintained throughout.
The arrogance of the landlord is a case in point as to why the Regulations are so important and why they must be enforced rigorously and with maximum sanctions – unless there are any genuine and serious mitigating circumstances to determine otherwise.
The self-entitlement of the landlord was certainly a feature in our case, which is why it is imperative that these Regulations work, otherwise the cycle of landlord abuses will continue as before.
17 September – 2014
The Extract Decree, which followed the proof hearing attended by our lay representative, Mr Donnie Fraser and presided over by the Sheriff from the original hearing on 17 September, 2014, explicitly stated the Defender was owed sums of money.
This curious document was entirely illogical – but, how so?
Because it was accepted by all parties that the Pursuer had not been returned a penny of her deposit, which means any sums “awarded” to the Defender would then need to be absorbed into the non-returned deposit.
The Extract Decree intimated that the Pursuer was to pay the Defender for matters (not contested at the proof) over and above the Pursuer’s £450 deposit already retained by the Defender.
As an example, let’s say the Court awarded £400 to the Defender, this would mean that the £450 (deposit retained) subtracted by £400 amounts to £50.00 owed to the Pursuer, not an extra £400 awarded to the Defender, as it was stipulated in the Extract Decree. Note: Solicitor clarification was sought on this point at the time.
I hope that was easy enough to follow, but just in case, the short of it is that the sums of money between the deposit protection issue and the areas of disagreement on the merits of deposit retention were confused.
And, for those that are still reading, and perhaps considering the possibility that I am havering, the judgement in question was later adjusted to reflect the separateness of these matters. The judgement was refashioned entirely as to who owed what and the figures revised accordingly to exhibit agreement with what I am stating now and with what I was desperately trying to convey at the time.
However, imagine you are a lay representative in my shoes, the judgement is complete, you know you are in receipt of an incorrect Extract Decree, which is potentially a document the Defender could now enforce against you as the Pursuer – what do you do?
Well, you can contact the Court, as I did. I emailed the Court, explaining why it was incorrect and requesting that the Extract Decree is amended. The Court responded to say that in no uncertain terms would they be communicating with me any further on the matter.
Note: I am more than happy to reproduce any correspondence as a means to show my reasonableness at all times during all my communications with the Court.
The facilitative approach, which I am led to believe is incumbent on the Court and the Sheriff Clerk, had been at times less than helpful, but this response was particularly obstructive and extremely disappointing, especially after such a toilsome experience in getting to this stage.
Unfortunately, we could chart this happening in advance, but our attempts at communicating fell on deaf ears and we were powerless to get off the conveyor belt we found ourselves on.
Therefore, we had no choice but to send our Form of Note of Appeal to the Sheriff Principal – Decree dated 25 September – 2014 and request a “report” on the original judgement by the Sheriff.
Note: If you wish to appeal to the Sheriff Principal it must be on a point of law.
A hearing date was then fixed with the Sheriff Principal. However, in the intervening period having received a new report from the original Sheriff, we reasoned the appeal would no longer be required.
Also, the possibility of the added stress of going through another court appearance and possibly one which attempted, again, to portray us as having committed some wrong-doing also weighed heavily in my partner’s thought processes and was contributory to us dropping the appeal.
It would have been interesting to hear what the Sheriff Principal had to say on the matter, but all things considered, it was the correct decision to drop the appeal. Particularly, as the Sheriff’s report now better reflected what the Summary Application set out to achieve, which was genuinely heartening, a report which we would otherwise have been unable to get without taking our appeal to the Sheriff Principal.
Unfortunately, another mistaken Extract Decree was issued. I phoned the Court to have the document remedied. The Clerk alluded, without prompting, to the Sheriff’s original misjudgement, so I presume this was common knowledge behind the scenes at the Court.
I was assured the document would be rectified in the coming days. This was not the case, so some days later I emailed the Court to check on the situation. The response I received from the Clerk was that, despite our telephone conversation to the contrary, she could not see the issue with the Extract Decree.
I would like to point out in order to be fair at this stage that there were genuine attempts to engage with me by the Sheriff Clerk. The two-way communication between the Court and I improved markedly since my appeal to the Sheriff Principal, which may or may not have been a coincidence.
I was now able to email the Court and quote the Sheriff directly from his report on his judgement, which of course, was as a consequence of the non-refundable £107 appeal to the Sheriff Principal.
The report was outlined in a far more legible manner, so much so, the Sheriff Clerk was then able to determine what was required to be adjusted and re-issued the Extract Decree accordingly, which detailed the separateness of the matters.
It is noteworthy that the Sheriff Clerk of some ten years standing (as she informed me on the telephone) could not see the original anomaly. It was therefore not reasonable for me to expect a Sheriff Officer to understand my explanation of the initial Extract Decree, and certainly, a lay representative has all but no chance of deciphering and explaining the judgement to enable it to be enforced correctly.
I was in the fortunate position of being immersed in the case and the law around the obligations of landlords, and as already mentioned, I had the benefit of a modicum of legal training.
Upon receiving the newly corrected Extract Decree, we breathed a sigh of relief and proceeded quickly to enforcement. This also took some considerable time, including an expenses hearing, which is not unusual.
This was against the backdrop of obstinate belligerence on the part of the Defender, including the Pursuer being provided with incorrect address details by the Defender, delaying the process and creating needless additional expense.
The Defender, who was by her agent’s admission a wealthy person, finally had an earnings arrestment attached to her employer, culminating in a totally avoidable, cumbersome, and undignified end on the part of the landlord.
Our landlord was typically what you would call a rogue and unfortunately it is landlords like these who do a sterling job of giving law abiding landlords a bad name.
More fundamentally than that, however, this landlord exemplifies exactly why the Tenancy Deposit Schemes (Scotland) Regulations 2011 must be enforced rigorously.
Long-term: the Scottish Government must continue its efforts to improve standards in the Private Rented Sector and crack down on rogue landlords.
Tenants: know your rights and do not put up with unacceptable behaviour from your landlord.
Landlords: Do the right thing by your tenants and follow the law. If you are a good landlord, you have nothing to fear from following your obligations as stipulated by law, which includes securing tenancy deposits in an approved scheme.
Victory to the Lay Tenant!
PART 3 – REGULATIONS AND FORM FILLING: Extra Information for Tenants
A link to the Regulations in full can be found here:
Example to tenant of how to write your initial writ below:
Our successfully amended Writ is contained below. The amendment on the face of it was minor, but nonetheless it is important to get the Crave (what you want) correct, making sure you do not mix up your craves with the condescendence (narrative) or vice versa.
This required change was requested by a new Sheriff at the third hearing. The original Sheriff had made no mention of changes being required, so it came as a surprise to me at the third hearing to be asked specifically about the Crave.
The Sheriff listened to my verbal plea and understood the attempted action, however he was not satisfied this married with Crave, which is a lesson to lay representatives and new solicitors alike to outline what you want to achieve in the crave in unambiguous terms.
I made the point that given our clear intention and in pursuit of a just outcome that we might get a chance to remedy the Crave. I also argued that being a lay representative, perhaps some guidance from the Court is not an unreasonable expectation.
This was not unrelated to the value assessment made of us by the Sheriff at the initial hearings, who I am confident questioned our motives as Pursuers and appeared to be coming down on the side of the landlord, despite their flagrant disregard of their legal obligations as landlords.
Regarding the condescendence:
There might be tendency to over-think this and I certainly over-cooked the pudding before refining my draft, but try not to, as Sheriffs are busy and need solid information at a glance.
The best piece of advice I was given in relation to this came on my recent Diploma in Legal Practice at the University of Strathclyde and it is to consider how a child would tell a story by bringing the chronology to life in the most simple terms.
Any sensitive information relating to the specifics of the claim and/or the particulars of the Pursuer and/or the Defender have been removed.
The following is not expected to be the most spectacularly conceived Writ but a workable template.
Template of Initial Writ:
“SUMMARY APPLICATION UNDER Regulation 10 (a) of The Tenancy Deposit Schemes (Scotland) Regulations 2011
SHERIFFDOM OF [insert sheriffdom where the case is to be heard]
AT (Insert Court)
[A.B.] Former tenant, (insert name and address), suing under Regulation 10 of The Tenancy Deposit Schemes (Scotland) Regulations 2011. Pursuer
[C.D.] Former landlord, (insert name and address) Defender
The Pursuer respectfully craves the court
The defender having been required by Regulation 3 of The Tenancy Deposit Schemes (Scotland) Regulations 2011, to pay the pursuer’s deposit of £450 into an approved tenancy deposit scheme within 30 working days of the beginning of the tenancy and the defender having failed so to do, the pursuer is entitled to decree as first craved a sanction of an amount not exceeding three times the amount of the tenancy deposit.
[X.Y.] Insert details (Pursuer)
Insert Pursuer’s address.
Note: Form 1 “Form of Initial Writ” can be obtained from the Scottish Courts website at:
You will also be required to fill out “Lay Rep” application, or “Form A1”, which is available from the Scottish Court website here:
For brevity I have copied in the exact lay rep form we used in our case for the third hearing to show you how it is done.
This was in relation to the fourth scheduled hearing I was unable to attend, as it was compulsory for me to participate in “Skills Week” on the first week of my Diploma in Legal Practice.
An arrangement with another friend collapsed due to unforeseen circumstances. So, rather than abandon the case, another friend, Mr Donnie Fraser, stepped into the fray to save the day.
It is no mean feat entering a court room with a half an hour brief over the telephone. I asked Mr Fraser to stick only to matters pertaining to deposit protection. In the face of expected questioning on matters unrelated to the deposit protection (the single reason for raising the action), Mr Fraser, as per his brief, stood resolute, informing the Court that the offence of non-protection of the deposit was a strict liability one and the only matter to be discussed is one of how much to sanction the Defender.
This resulted in the Sheriff accepting everything in the Defender’s bundle, most of which related to monies already paid and other costs added retrospectively. This was an overtly cynical, possibly successful attempt by the Defender to besmirch the character of the Pursuer and muddy the waters of the key factors in the case – namely, deposit protection.
In a standard case the Sheriff is entitled to do this, but as we have seen a scheduled “proof” was as incompetent as it was an unnecessarily resource consuming exercise.
As I assured Mr Fraser at the time, it was important for us to take a principled stance, as this was an action on deposit protection, meaning to enter into discussions on the merits or otherwise of retaining the deposit itself would be to take part in the law being applied incorrectly – which we were not prepared to do.
Moreover, to agree might have thwarted the chances of any future lay rep so we had to remain strong on the law.
A Solicitor friend inquired about having a solicitor from the Highlands represent on our behalf, but the cheapest a Solicitor would appear for one hearing was £1,000. This is not a bad dinner ticket if you can get it, considering the ground work was already complete and the deposit in question was less than half that figure.
I suspect, however, that a Solicitor would have made assumptions about my interpretation of the law being inadequate and presumed the Sheriff to be correct, particularly as given how new the Regulations are and the small number of cases they have been used in so far, it is likely a solicitor would have been unfamiliar with them. Although, it is possible the Sheriff would have taken a different view had the information been presented from a Solicitor and not a lay representative; however that is moot because we could not afford £1000 to have a solicitor appear on our behalf anyway.
I had trouble in some quarters conveying why the Sheriff conflating two issues as one was incorrect. However, Mr Fraser, who was the only person available, turned out to be exactly the man for the job. He never shirked in the face of authority and stood firmly behind the intention of Regulations, which he comprehended reassuringly quickly.
The Sheriff later in his written judgement misconstrued this as Mr Fraser being “ill-prepared” when nothing could be further from the truth. Mr Fraser stuck to his task of maintaining that the issues around deposit retention were completely irrelevant and that we were denied free third party arbitration through the direct inaction of the landlord in not securing the deposit. He resolutely maintained that entertaining such matters in court went entirely against the spirit of the Regulations.
Example Form A1 below
Form of Statement by prospective lay representative for Pursuer
Statement by prospective lay representative for Pursuer
Case Ref. No.:
in the cause
SHERIFFDOM OF [insert Sheriffdom]
AT [insert Sheriff Court where case will be heard]
[A.B.], Address – Pursuer
[C.D.] Address – Defender
Court ref. no:
Name and address of prospective lay representative who requests to make oral submissions
on behalf of party litigant: Mr Donnie Fraser,
Insert Home Address:
Due to unforeseen circumstances, Kevin’s Solicitor cannot attend today. Kevin, who
has acted as a lay rep in the past, on behalf of Miss T, started his Diploma in Legal Practice
in Glasgow this week. Therefore, he is unable to attend.
Identify hearing(s) in respect of which permission for lay representation is sought:
X v Y
The prospective lay representative declares that:
I have no financial interest in the outcome of the case
So what of the tenancy deposit schemes available to a landlord? There are three main tenancy deposit schemes in Scotland, details of which are as follows:
This is an incredibly long article, however, if you have made it this far – thank you for reading!
If you are a tenant in a similar situation to the one my partner and I experienced, I hope you feel inspired to take action and that the inclusion of the legal guidance and relevant forms help you in your endeavours. Please feel free to contact me at the email address below, should you have any questions or require further guidance. My intention has been to write a comprehensive piece about the Regulations, both to empower tenants to take action, but also to highlight why it is so important the Regulations are workable and enforced in the manner they were originally intended. The Regulations are just one component of the fight to improve standards in the private rented sector and change the culture of landlord entitlement. However, they are an important component, and their correct application can make a real difference to tenants, empowering them and reducing instances of tenant exploitation.
About Me: Kevin Kane
In 2014/15, I pursued my partner’s landlord in court as a lay representative, via the Tenancy Deposit Schemes (Scotland) Regulations 2011, culminating in the landlord being sanctioned twice the original deposit and I have since completed my Diploma in Professional Legal Practice at The University of Strathclyde.
This article initially appeared at https://handfulofearth.scot/