Going to court to get an unprotected tenancy deposit back
If your landlord refuses to return your deposit, negotiation hasn’t worked, and your deposit is not covered by a tenancy deposit protection scheme, the next step is to go to court.
If you think your landlord is not entitled to keep your deposit but you can’t convince her/him to give it back, a court can settle the disagreement. The court will look at all the evidence and decide whether or not your landlord should return all or part of your deposit.
Which court deals with deposits?
The county court deals with disputes about deposits. The court procedure is intended to be simple enough for people to use without needing a solicitor. However, if you need to claim more than £10,000 (the limit for small claims), or you want help with the process, get advice.
Will I have to pay court fees?
You have to pay a fee to the court to start your claim. You may be able to claim this back from your landlord if you win, but if you don’t win you will lose it.
If you receive certain benefits, or are on a low income, you may not have to pay all or some of the fee under the ‘remission system’. You will have to complete Form EX160 and take this to court when you start the claim. For more information on court fees and to find out how much you are likely to have to pay to start a claim go to the GOV.UK website.
What can I claim for?
You can claim for:
- all or part of the deposit
- interest on the amount owed
- the court fees you had to pay to start your claim
Interest can be claimed from the date your deposit should have been returned until the date you start your claim, and then at a daily rate. Interest is calculated at 8%. If you want to claim interest, you have to say so on your claim form.
How do I start the court claim?
To start the claim, you will need to get form N1. You can get this from your nearest County Court or download it from the Justice website.
When you fill in the claim form, you have to say how much you are claiming and explain your reasons. Give clear details of any costs that have been deducted from your deposit and why you disagree with this.
Write to your landlord
Before you start the claim at the court, send the completed N1 form to your landlord along with a formal ‘letter before action’ giving your landlord a deadline to respond by if they want to avoid court action. The deadline could be 14 days for example.
You should write ‘letter before action’ at the top of your letter.
We have produced a sample ‘letter before action‘ for you to adapt.
You could also send your landlord copies of any letters you have already sent to her/him but that they didn’t respond to. Keep copies of everything.
Many landlords will agree to pay you what they owe as soon as they receive a letter before action, so you may not have to go to court at all.
Start your claim
If your landlord doesn’t respond by the deadline or still refuses to pay, take the form to your local county court. Court staff can help make sure you have filled it in correctly and explain the procedure.
At this point you will have to pay the fees unless you qualify for exemption or reduction under the ‘remission system’. If you are on benefit, take some proof with you, and if you are on a low income, again take evidence of what that is. If you are on tax credits, take your most recent tax credit letter. If you can, it would speed things up if you complete the EX160 form and take that with you.
When you pay the court fee, the court normally gives you instructions (which they may call ‘directions’) about the documents you will need to provide to the court and the time limits for doing so. These might include:
- a copy of your tenancy agreement
- records of your rent payments
- the inventory
- receipts of any items you have repaired or replaced
- letters to (or from) your landlord
- statements from witnesses
You will also have to sign a statement explaining the evidence you want the judge to consider. Any witnesses (such as a friend who can confirm the state of the property when you moved in) will also have to sign a written statement. You usually have to provide all the evidence at least 14 days before the hearing.
What happens next?
The court office will send a copy of your claim to your landlord, with forms that s/he must fill in and return. At this point your landlord could:
- do nothing
- agree with your claim and pay up
- disagree with your claim and agree to go to court
If your landlord does nothing the court can automatically order her/him to pay the money you have claimed along with interest and your court fee. If your landlord doesn’t pay, the court can advise you about what you can do next.
If your landlord replies and continues to disagree with your claim the court will arrange a hearing.
If the court is unable to send or deliver the papers to your landlord, you may have to give them to your landlord yourself. Get advice if you are in this situation.
What happens at the hearing?
If your landlord disputes any of your claim there will be a hearing. This should be fairly informal and you should be able to represent yourself. The judge will ask questions based on the evidence you have already provided. Your landlord may be represented by someone else, such as a solicitor.
What can the court do?
If you win, the court will order your landlord to pay your claim. If your landlord doesn’t pay up, the court will advise you on what you may be able to do next.
If you lose the case there may be nothing more you can do to get your deposit back. Your court fees will not be refunded but you won’t have to pay your landlord’s legal costs. If you think the judge hasn’t considered the evidence properly you may be able to appeal. You will need to get legal advice quickly if you want to do this. Call Shelter Cymru’s expert housing advice helpine on 0345 075 5005.