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Tenancy Deposit GUSRC Response

Tenancy Deposit GUSRC Response

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1 of 7 John McIntyre Building, University Avenue, Glasgow G12 8QQtelephone: (0141) 339 8541 ¦ fax: (0141) 337 3557 ¦ email: enquiries@src.gla.ac.uk ¦ www.glasgowstudent.netScottish charity No. SC006970
September 3, 2010Business Support TeamHousing Markets and SupplyScottish GovernmentMail Point 19Area 1-J SouthVictoria QuayEdinburgh EH6 6QQTo Whom It May Concern:We welcome the opportunity to respond to the consultation on TenancyDeposits Scheme (Scotland) Regulations 2010 draft. While we broadly welcome thescheme in principle I have attached our detailed response to the questions posed inthe consultation document. I hope that our feedback is considered in detail and thatthe views of the students that we represent are fully considered during theconsultation process. We are very enthusiastic about a tenancy deposit scheme beingintroduced in Scotland as many of our members live in privately rentedaccommodation and these proposals would affect them directly. Indeed at our advicecentre deposit cases accounted for 50% of accommodation casework entries, or 14%of total casework, which indicates that they are relatively complex and time-consuming.Glasgow University Students’ Representative Council represents the interestsof over 25,000 students registered at the University of Glasgow to the University andnation. Council comprises up to 37 elected students who meet throughout the year,and is a fully independent representative organisation being non-affiliates of NUS(National Union of Students).Sincerely,Mr Fraser SutherlandVice-President (Student Support)Glasgow University StudentsRepresentative Council
2 of 7 John McIntyre Building, University Avenue, Glasgow G12 8QQtelephone: (0141) 339 8541 ¦ fax: (0141) 337 3557 ¦ email: enquiries@src.gla.ac.uk ¦ www.glasgowstudent.netScottish charity No. SC006970
Glasgow University Students’ Representative Council:Detailed response to the Tenancy Deposits Scheme (Scotland) 2010 consultation.
Question 1
: Do you support the proposal that the tenancy types covered by the tenancy deposit scheme should be aligned with existing landlord registrationlegislation? 
Yes, one system of governance would give tenants more confidence in theprivate rental system. However, we do not agree that resident landlords should beexempt from the tenancy deposit scheme. Our view is that any landlord who takes adeposit from a tenant should be required to protect that deposit in an approvedscheme.
Question 2
: Do you agree with the provisions relating to the date that theduty to comply should take effect for tenancies covered by tenancy deposit regulations? 
Yes, a fixed date for the scheme to start would allow both landlords andtenants time to become aware of the regulations.
Question 3
: Do you consider that the sanctions are appropriate and  proportionate to the action or inaction that prompts them? 
No, while the proposals are an appropriate and proportionate response to firsttime offenders, we believe that more stringent action should be taken against repeatoffenders.
Question 4
: Are there additional sanctions that you think would be moreappropriate and effective? If so, how would they be enforced? 
For repeat offenders tougher financial penalties should be available. Thiscould take the form of an escalating scale of sanctions culminating in a temporary orlifetime ban for a landlord who consistently breaks the regulations. This would helpprotect future private accommodation tenants.Sanctions for non-compliance should be tied into the “fit and proper person” test for private landlord registration under Part 8 of the Antisocial Behaviour etc.(Scotland) Act 2004
Question 5 
: The regulations currently provide for sanctions to apply to the person who receives the deposit and fails to comply with tenancy deposit regulations. Do you agree with this? 
We believe that the legislation should stipulate that tenants are free to pursueeither the landlord or letting agent regardless of who actually physically receivespayment of the initial deposit. We have direct experience of both landlords andletting agencies attempting to shift the focus of legal responsibility on to each other.For example we have dealt with a case previously whereby we raised small claims
3 of 7 John McIntyre Building, University Avenue, Glasgow G12 8QQtelephone: (0141) 339 8541 ¦ fax: (0141) 337 3557 ¦ email: enquiries@src.gla.ac.uk ¦ www.glasgowstudent.netScottish charity No. SC006970
court action against a letting agency who had disclosed only the name of the landlordand no other details. The letting agency tried to have the claim dismissed on thebasis that we should have sued the landlord and we had to obtain a legal opinion tohelp us continue. The legal counsel we sought advised us that this was an ambiguousarea of the law which is why we believe these new regulations are an excellentopportunity to clarify this point. Furthermore we have also encountered a scenarioinvolving us suing a landlord after his letting agent had gone into administration.The Sheriff Clerk returned the small claims papers stating that we should be suingthe administrator of the letting agency and that the case would be thrown out if itwent before a Sheriff. We had to send information to the court about the law of agency in order that the claim could proceed. We believe the requirement to be wellversed in this already complex area of law is preventing access to justice for the veryindividuals it is designed to serve.
Question 7 
: Do you think that the regulations should require a financial  penalty to be imposed in all cases? 
Yes, the legislation should provide for a minimum financial penalty with anunlimited maximum penalty at the sheriff’s discretion. This should act as a deterrentto those who would breach the regulations. A minimum financial penalty is also inkeeping with the necessary transparency of the scheme, landlords and tenants alikewould be aware from the outset of the possible financial implications of non-compliance.
Question 8
: Should the court have discretion to decide on the amount of financial penalty? 
Yes, different cases may deserve different levels of penalty. It would beappropriate to deal with repeat offenders more severely than a first time breach.
Question 9
: If your response to Question 8 is yes, do you think there should be a minimum penalty e.g. at least an amount equal to the deposit? 
Yes, an amount three times the deposit would be an appropriate penalty forthose who have failed to meet their obligations as a deposit holder. The timescalesset out in the draft proposals allow adequate time for a secure depositscheme/insurance provider to be sought by the deposit keeper. This would becomplemented by a system which provides for the courts to penalise repeatoffenders more severely.
Question 10
: The regulations permit a scheme to hold deposits in adesignated interest bearing account. Do you have any views on whether other typesof investment should be allowed? 
 We would be against any investments beyond those in interest bearingaccounts, with interest generated being used to cover the costs of the scheme.

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