I Haven’t Protected My Tenants Deposit, What Should I Do?

For a general view and background on tenancy deposits, please refer to the tenancy deposit guide. For those of you that are familiar with the legislation but have failed to protect their tenants’ deposit, you’re in the right place.

Without a doubt, this is one of the most common dilemmas landlords are finding themselves in today.

The sad and blunt truth is, you’re most likely in this predicament because you either didn’t bother doing any independent research before becoming a landlord, or you failed to keep on top of legislations (which is something all landlords should be doing regularly). Just needed to get lecture out of the way.

What is expected?

First, let’s briefly look over what the legal requirements are when a landlord has received a tenancy deposit.

To be in compliance with the Section 213 Housing Act 2004, landlords must protect their tenant’s deposit into an approved scheme and serve all prescribed information with in 30 days of receipt. It is important to note that the date the deposit is received may not be the same date as when the tenancy starts, typically deposits are received before.

What if the deposit isn’t protected?

There are generally two major concerns for landlords if the deposit is not protected and the prescribed information is not served:

  • 1) You will not be able to serve a valid Section 21 notice (Notice of Possession). That means if you want to legally repossess your property upon the ‘no fault ground’ at the end date of a tenancy, you won’t be able to via the Section 21 route. Bearing in mind, this is generally the easiest and most reliable way of repossessing your property.
  • 2) The tenant may make an application to seek a return of the deposit and also prosecute for further compensation. The Court can award an amount between one and three times the deposit amount. It is up to the Court to decide how much is appropriate based on their discretion.
What should you do?

From my experience, most landlords frantically start becoming concerned about their non-compliance based on one or more of the following reasons:

  • Their tenants have discovered they can prosecute the landlord and potentially make a quick buck (in this case, the landlord may or may not have been familiar with the legislation).
  • The tenant is blackmailing the landlord to pay compensation, or consequently face legal action (again, the landlord may or may not have been familiar with the legislation). This is unbelievably common, which is pretty sad.
  • Whilst looking into serving a section 21, the landlord has discovered they cannot serve a valid notice because they didn’t comply with the law.
  • Landlord recently discovered they were obligated to secure the deposit through no forced scenario and is determined to comply with the law. This is usually the rarest scenario, because usually there’s a reason for why a landlord would discover the existence of the legislation when it’s too late. Most other landlords keep their ear to the ground and stay on top of the legislations and comply.
  • Landlord forgot (not sure how many people will believe this one!).

Sound familiar? Unfortunately, whatever the case maybe, you have no defense, and you’re currently prone for prosecution.

So what should you do? Based on the cases and advice I’ve read, there are three prospective options here:

  • 1) Return the deposit to your tenant.

    Assuming your tenant isn’t threatening/blackmailing you, your best bet is explain to your tenant that you forget to secure the deposit (I wouldn’t mention the possibility of them being able to prosecute if they aren’t already aware), and then return the full amount. This will mean you will have no security deposit to cover any damages, but you will be able to serve a valid section 21 notice.

    I would get written confirmation that the deposit has been returned and return the deposit in a traceable form e.g. cheque or bank transfer.

  • 2) Allow the tenant to prosecute (if it’s heading down that road).

    If the tenant brings a claim which has been determined, withdrawn or settled by the court, this will then allow the landlord to serve a valid section 21 notice.

  • 3) Terminate the tenancy by getting the tenant to surrender the tenancy and return the deposit, and then start a new tenancy with the same tenants.

    You will probably need understanding tenants for this method to work. But you never know, people can be surprisingly helpful.

Does anyone else have any additional tips to share? Do you have any experiences to share regarding this matter, weather you’re a landlord or a tenant? I’d love to hear your story!

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52 Comments- join the conversation...

Showing 2 - 52 comments (out of 52)
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Nick 1st April, 2010 @ 14:34

Mike - Google it there was an appeal decision last week, although the appeal is being appealed. Basically the judge found that although the law says 14 days it also says follow the laws of the deposit scheme, and the deposit scheme doesn't give a time limit. As the Landlord had followed the rules of the deposit scheme and secured the deposit once they realised the breach no penalty was due.

Of course it may yet change again, but that's the current state of play today.

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CF 21st April, 2010 @ 08:33

When my tenancy began my landlord informed me via email that she had put my deposit into the deposit scheme within 14 days observing she 'was required by law to do so' but it turns out that she actually did not do it. So for the duration of the tenancy I have believed she did, but now with a few weeks to go it turns out this is not the case. If I had known this to be the case I would have pushed the issue and made her do so even if it was after the 14 days just to ensure the money was safe. What should I do? What can I do if she tries to withhold any part of my deposit?

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SJC 28th April, 2010 @ 10:37

I will admit from the outset that I am a tenant so you can see the bias in my response.

The 3 * deposit fine was meant to act as a deterrent to bad landlords/agents for not following the law.

I have read several blogs on this matter and they point to several cases whereby the judge has effectively let the landlord off the hook if by the time of the court case the deposit had either been paid back or correctly deposited in a protection scheme.

I guess for the majority of landlords and tenants this is a good result. The landlord did not pay a fine and the tenant either has their deposit or it is secured.

However, in my mind this encourages the following behaviour. Bad agents/landlords can continue to keep the deposit money unsecured earning interest from it until a tenant makes a fuss and then as long as they take some action they will not be fined.

If the fine occurred in the majority of cases then it would not be worth the risk.
In addition, if fines were imposed more landlords would abide by the law meaning less tenants having to taken stressful court action and less would get into the situation CF describes.

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rob mcewen 1st June, 2010 @ 19:05

if my landlord has not protected my deposit can they issue me with a section 21 to end the tenancy.i am due out on july 1st and have found a property to move into but my landlord is very untrustworthy and has told me they will give me my deposit back on the day i leave.i have been told by a friend that if the landlord hasn't protected my deposit the section 21 notice to seek possession has no legality to it until deposit protected.

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Nick 2nd June, 2010 @ 14:05

Your friend is right.

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rob mcewen 2nd June, 2010 @ 15:24

thanks for that nick.i have tried to be reasonable with my landlord when i told them a couple of months ago my deposit should be protected.still hasn't done it so will seek legal advice now.

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Nick 2nd June, 2010 @ 15:47

Yes - never do anything off internet advice alone, only act off professional advice. Not only can your LL not evict you but when you do go, he has to pay you 3x the deposit back. Of course your best bet may be to settle in as a protected tenant & offer to buy the property off him at 30% BMV (that's the going rate for protected tenants).

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rob mcewen 2nd June, 2010 @ 21:31

hmmm!! good advice nick but not practical.i am registered disabled and recently had surgery to c-spine,so having been out of work for some 5 years(living off the state as some people more fortunate call it!!) i couldn't afford to buy the front door at the moment!if i do get 3x the deposit though i may thank you by buying the front and back doors and sending you the front one framed and polished.(next day delivery of course) not to stirr things up on your great site though nick..i do find in my little experience of being a tenant,so far,that the female sex are generally quite ruthless in their roles as landlords and thank god our last few prime ministers have been men.get rid of the queen and this country might get it,s balls back.balls back nearly being an anagram of ballack..who plays for chelsea!!
i will let you know how i get on.

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sarah 1st July, 2010 @ 19:19

I have been a landlord for the 1st time & will never do it again. I simply didnt know enough about renting & the last time my husband had rented out was 8 years ago. I never put the deposit into a protected scheme, the tenant never asked - Ive only just realised now at the end of the tenancy how important it was. when the tenant moved out they had redecorated badly, broken doors, wardrobes& drawers. I calculated costs & returned a cheque for what was left (a fifth of the rent) alongwith a letter explaining everything - i couldnt talk to tenant as after a string of abusive phone calls I refused to take anymore. during their rent they fixed a tap & gave us a fake invoice for it, taking the cost out of the rent (half of it)which we havent even raised with tenant.
Is it worth me putting the rest of the deposit into a scheme now? if she takes me to court & Im unable to pay 3x the amount will I be allowed to pay it back monthly? thank you for any advice you can give me.

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Not happy!!! 20th July, 2010 @ 12:31

Can anyone please give me some advice?

After a long time searching for a property to live in, I was fortunate enough to come across a house where the tenants were moving out. I spoke to the tenants and I asked them about the property and who the landlord was etc... They gave me his contact details and I arranged to meet him to look at the house. Everything was fine. He was OK with the fact I needed to claim housing benefit and everything was sorted out. I signed the six month tenancy contract and I paid him a £400 deposit and a month up front rent.

When I moved in, I asked him if it was OK to set up a standing order to pay him the rent and he said yes. I was told that he would post me out the details to set it up and I never thought any more about it.

When it came to paying the first months rent, I phoned him to remind him that he had not sent me the details to set up the standing order and he apologised, saying that he had been busy and was it OK to come around collect the rent. This was OK by me and he arrived to pick it up. I asked him again about the standing order, but this time he asked me if I didn't mind, would it be OK if he continued to come to collect the rent in person.
I assumed that maybe he wanted to do this so that he could keep an eye on the property, but being confident in myself that there was no way I would do anything to harm it, I agreed and we arranged for him to come and collect it when it is due next month.

Today, I had someone knock on the door, enquiring as to whether anyone was living in this house. He told me that he had been contacted by a company called Countrywide and that they had asked him to confirm if anyone was living here.
The reason for this, was because this house was involved in a court case. He could not tell me himself what the court case was about, but on confirming I was the tenant, he phoned up the Countrywide company and passed on my details to them so that they could ask me some questions.

I received a phone call five minutes after this man had left and I spoke to someone who informed me that the house was repossessed by the bank and that I was actually living here illegally even though I had a contract signed by the landlord.

The landlord had failed to pay the mortgage on this house and he knew that it had been repossessed, but still went ahead and allowed me to sign a contract.

I have also found out that the £400 bond which I paid him has not been protected and I will now lose this as the landlord is being made bankrupt!

The bank in good faith have agreed to allow me to remain in the house for the remainder of the contract as I signed the contract in good faith and as far as they are concerned, I have done no wrong.

The problem it raises for me, is when the contract runs out, I will not be able to get my bond back and because of this, I will not be able to get another house. It is already difficult enough finding property when unemployed, but now because of this landlord's actions, I am probably going to end up homeless!

I know trying to take him to court myself is a waste of time, because as he is being made bankrupt, I will get nothing.
Does anyone know of any schemes which apply should the landlord fail to protect the bond? Is there anyway of claiming criminal actions against this person? Surely what he has done must amount to fraud at the very least?

Any advice would be appreciated.

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Brandon 24th September, 2010 @ 12:08

Help., I've done something stupid ;( My friend who has a flat in London wanted me to rent it out for her as she lives in spain and is 58 and has been in and out of hospital . I rented her flat out March 2010 and I was not aware of having to place the deposit in to the government's account , I sent her the deposit and that was that. The tenants have never mentioned or asked about the scheme. Now she wants to sell so I found her a cash buyer , etc and its now in the solicitor's hands on transfer. I mentioned to him that the deposit is with her and he was like did you or her not put it in the deposit scheme? I am now on the DPS webpage and was wondering is it to late to put it in now, the tenants move out march 2011?

What can I do , ????? I truly was not aware till today .

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Brandon 24th September, 2010 @ 13:18

I've just spoken with a guy from DPS and informed him my tenants moved in march 2010 but are paying the deposit today and I will pay it in today , I asked him with I be fined for this he said NO, You can pay in you're deposit any time.

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Jools 24th September, 2010 @ 14:30

@Not Happy: Sorry to hear about your circumstances.

To start - only YOU can set up a standing order with your bank. Your LL can't do it. He can arrange a direct debit using a direct debit form and your signature but SO - that's your domain.

As to whether you can do anything. I would seriously talk to a solicitor ASAP. Whilst the LL is a complete tw*t you have signed a document and I am pretty sure that as you have a document you cannot be forced to move without first someone (Bank, receivers etc) obtaining an eviction notice. The bank may even be prepared to do a deal since the house is likely to go be sold and wilst it is awaiting sale they will have at least some income! Worth a try but knowing the banks and how stupid they are........

It's unlikely that you will get any money back. If he failed to deposit the bond then you would be normally entitled to sue him for 3 x the deposit but if he is bankrupt - no chance. If you think fraud had been commited then that is a police matter and you should speak with them.

Hope this helps

Jools

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alison 25th October, 2010 @ 12:35

i am a landlord. 3 years ago i rented out a flat and a £1,500 deposit was paid. at the same time my husband was admitted to hospital after having a stroke and therefore I never actually transferred the deposit to the correct scheme, but i did keep the deposit in a separate bank account. after the first year the tenant did not renew the tenancy officially but continued to rent the flat and pay the rent. The official tenancy expired on 7 July 2008. The tenant vacated the flat in July 2010 and it was in an absolutely disgusting state. windows were covered in black mould and the paint had peeled off in several of the rooms due to lack of cleaning and ventilation and that is just one of the problems that i faced. the windows have had to be repainted. The garden could hardly be entered and the flat took several days and several people to clean it properly. the tenant expected all of his deposit back. it has cost me most of the deposit to get the flat back to a clean state but the tenant is demanding his full deposit back. I have offered him £500 as a gesture of goodwill although it has cost me far more to get the flat back into a rentable condition. as the tenancy expired over two years ago, can he still sue me for not putting the deposit into the correct scheme. or, if i now put the deposit into a proper scheme does that mean that he cant sue me. sorry for long ramblings. I cannot believe that for one error on my behalf a tenant can get away with leaving my property in a condition that can only be described as uninhabitable. thanks

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Jools 25th October, 2010 @ 15:52

Legislation was for after April 6th 2007. If deposit taken before not an issue. If taken after then technically you have broken the law and the tenant would be entitled to sue you for 3 x the deposit. However you would have to be prepared to defend your position in court if it came to it so I hope you took lots of pictures of the state of the property! This is where a professional and independant inventory is important.

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Rich 27th October, 2010 @ 14:59

I am a landlord and I rented out my property in February 2010. As this was my first rental I got a shorthold tennancy from wh.Smiths. I was not aware of the deposit scheme until two days ago. I took 750 pounds as the first months rent and when the council back dated the benefit this then became the deposit. (over 14 days). I did not put his deposit into a scheme after this. 3 months into the tennancy my tenant owed me in excess of 1200 pounds and he said to use the deposit to cover some of the rent arrears. The tenant is moving out of the property on November 1st and has rang me demanding his deposit back or he will sue me for 3x the amount. Despite the fact that he still owes me over 1000 pounds again due to even more missed payments.
I would like to know if this would stand up in court as he still owes me a large amount of money. And I am still to give the house a once over.
Please advise on my problem.
Regards

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Ken 5th November, 2010 @ 13:27

Hi guys had a massive issue with my previous landlord regarding my deposit.
first some history.
began renting the property in december 2008 i paid my months rent on the day and a deposit.
from day 1 the house was problematic to say the least but having come from bad circumstances i was prepared to put up with the odd niggle.
The problems got worse when things were not fixed bad wiring, gas problems central heating not working gas safety checks not kept up to date dispite me pressing for things to get done.
I decieded i had had enough and found another property to move into september 2010.
when we left my LL wanted the paint work returned to how it was when I moved in and wanted to take 2 weeks rent from the deposit as We moved out part way through the month.
i told him to do that he would have to give me 10 days written notice which he had not done and asked him for the scheme details for my deposit.
He told me that he had put it in his bank account and would need time to accsess the money, we agreed 10 days to get final work done and for him to get the funds.
when we met again he sent his stepdad and mum in as he couldnt make it shocking! and they then tried to claim we needed to do more work on the property to make it right before new tenants moved in on 1st october.
we argued the points and he then presented me with a cheque for my deposit minus the 2 weeks rent. i refused and respectfully reminded him that i hadnt recieved notice to deduct anything from the deposit and would not leave without the full amount! i recieved a checque and got them to sign reciepts for the exchange with witnesses.
the cheque bounced i contacted him and informed him that if the cash wasnt in my account within 2 hours i would take him to court over it.
the deposit was painin within 20 minutes of the call.
sorry for the long winded bit but my question is can i still persue him for not placing my deposit into a scheme

Thanks for youe time
Ken

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richo 6th December, 2010 @ 22:22

Help! I need some advice

I rent my flat out, the tenant moved in on 1st June on a 6mth tenancy agreement, he last paid rent on 1st November, and nothing since. He now owes me one months rent, I have been unable to contact him - he wont answer my calls/ return my messages or letters. I went to the flat at the weekend to supervise some plumbing repair works and the flat is in A VILE condition - like a squat. Extremely dirty, he is keeping loads of pets there (not allowed), smoking indoors (not allowed), broken my furniture, not cleaned ever (at least thats how it looks & smells) and apparently there are 2 other guys living in there too.

I have just realised today that i HAD to put his deposit in a DPS,at the moment it's in a separate bank account that I set up to keep it in so it would always be separate from my money. I am about to serve him an S21 Notice, but as the money isnt in a DPS I am really worried he can sue me for 3x value which I simply cannot afford and it's going to cost me loads to clean and fix the flat up.

If I put the deposit into a DPS sceme today will this be better than not at all, and put me in a better position if it goes to court or when I serve the S21?

PLEASE HELP... I'm at my wits end.

Thanks.

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heather 9th December, 2010 @ 03:42

need advice please...

We moved into a house in feb/09 with a live in landlord. We lived there happily untill recently when due to rising gas prices our landlord refused to supply heating unless we paid an additial £200 per moth on top of the £500 we were already paying. Disputes followed and we were told to move out which we have quite happily done.
The problem is now the landlord is refusing to refund our deposit and trying to claim we are responsable for damage to the property. This is quite obviously a tatic to avoid paying out as these claims have all suddenly appeared from nowwhere and are completly unfounded. We lived there for nearly 2 years but never had anything more than a verbal aggrement amongest us. Our deposit we found out was simply spend by landlord as soon as we handed it over and never put into any scheme as I have just discovered they were legally surposed to do.
Is it now possiable to sue them for our deposit even though we have no aggrements in writing or ay proof a deposit exsited other than a few text messages from them????
Please please help, we are really unsure of how to proced.
thankyou in advance

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Andrew Preece 17th July, 2011 @ 13:23

I bought a house 15 years ago with a joint mortgage with my girlfriend. Three months after moving in, she told me to get out so she could move the next boyfriend in with her. To her surprise, I refused. To my surprise, the Police arrested me half a dozen times for being beaten up by her family. The end result is that neither of us live in the house, she contributes nothing and I pay the mortgage by renting it out.
Just about every tenant that I have had has left it like a pig stye, and I have spent thousands of pounds redecorating and replacing furniture. There is absolutely no point at all in taking a bond, if you have to pass it strieght on to the Government scheme who will almost automatically give it back to the tenents regardless of what state they leave the house in. The only person who is punished is the lanlord. I can not wait to get rid this house and will never trust any one who rents property again. SCUM.

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shaun 22nd July, 2011 @ 13:35

Bit strong Andrew do you not think.

I am currently being shafted by my LL it's not all tenants that are the SCUM as you so nicely put it.

The majority of the LL out there are money grabbing arseholes (excuse my French), that couldn't give a toss how their tenants are treated.

I am currently in the process of taking in LL to court for how I have been treated!

I would suggest vetting your tenants more thoroughly next time!

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Rob Mcewen 22nd July, 2011 @ 14:19

Gotta agree with you Sean! In the last two years have moved twice cause of ruthless landlords.One house we were given long term,decorated and did garden etc then after 6 months landlord said she wanted property back!Went through court etc but no help for us.Luckily we have a great landlord now who also knows she has great tenants who will look after the property..but i was put through hell by previous landlords who just wanted to screw me for every penny and evict when i had improved the place.So i would say whilst there are troublesome tenants there are also an equal..if not more than equal..amount of horrible nasty landlords out there.

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Chrissy 23rd August, 2011 @ 00:06

Im coming upto my 2nd renting a house from a landlord that doesn't pay his mortgage often , I had a debt collector agent for his bank on the doorstep asking to speak to my LL about his big arrears.
I paid my deposit and months deposit upfront, I waited a month heard nothing from deposit scheme I emailed my LL asked can he secure my deposit he said No! He keeps it so it's quicker to pay it back to me!!!
He has no money so kept it pats it back when he gets new deposit from next Tenant.
The house is damp I've children he just cleans and paints over damp?
I am now waiting to move out but I feel he should be fined 3 times the deposit for not paying the mortgage and letting the damp continue but I know he'll get out if it So I'm going to move out and tell him after on my last month keep my deposit as my last months rent! He can't do anything as he's broken the law.

I've also been a LL and there are some awful tenants and I've been a tenant that pays early decorates and puts new carpets down but my LL is disrespectful so I have been on both sides
As in life there's good n bad

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Heather Beames 26th August, 2011 @ 19:40

LOdgers - hi does anyone know if the secure deposit scheme/loaw is applicable to lodgers with live in LL as well as shorthold tenants?

Also are there anspecific background checks that you need to do for European - Polish - lodgers?

Thanksy

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Mike 16th September, 2011 @ 20:59

Received a very interesting email from a local letting agent relating to some recent changes in the legal precedent for taking LLs to court for failing to INFORM THE TENANT of the deposit protection scheme (apparently the notification from the scheme itself is not sufficient) Seems very draconian, but read it for yourselves and see what you think.

Deposit cases refuse to die!

It was generally thought, following the Universal Estates case and the Gladehurst case that most deposit issues had been resolved. Protection had to be completed by the court hearing date and tenants could not claim the three times the deposit penalty after the tenancy had ended.

Now in a new appeal case heard in the High Court, and therefore binding on county courts, new interpretation has emerged and a landlord has fallen foul of the deposit penalty legislation.

The landlords, Mr and Mrs Nice, let a property in Guildford to the tenant, Karin Suurpere for a fixed term of 6 months from 6 January 2009.

The tenancy being an assured shorthold tenancy, there was no question that the deposit should have been protected.

The tenancy ran poorly and there were complaints from other residents in the block. The tenant also complained the landlords were harassing her.

The landlords served two “notice to quit” but both were invalid for not being correctly completed.

The landlords did not protect the deposit till a letter was received from the local CAB. The landlords put the money in the custodial scheme on the 20 July and on the 21 July the scheme wrote to the tenant confirming receipt of the money and providing information about the scheme.

The tenant commenced legal proceedings on the 10 August 2009. The original judge, following the Draycott v Hannells judgement held that as the deposit was protected there was no penalty to pay.

Following the allegations of harassment the tenant vacated the property on the 14 August. At the trial hearing she was awarded £1,000 damages for harassment. She failed in a claim for unlawful eviction.

As the deposit was protected, this claim hinged on the failure to give the prescribed information, as stated in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007. Much information was provided in the tenancy and by the scheme but at no point was clear, specific prescribed information given.

This was therefore not a claim about the meeting of a 14 day deadline but about it not being done at all, or in the right manner. Also the deposit was returned in full on the 1 September 2009

The tenants knew which scheme the deposit was in and had been provided with the deposit reference number and the address of the scheme where more information was available.

There were a number of important issues raised. Firstly, the penalty for not providing the prescribed information continued, even though the deposit was returned in full.

Secondly, the court held that the information provided to the tenant by the scheme was not satisfactory to comply with the prescribed information requirements. The legislation was specific that the obligation to provide this information was personal to the landlord, therefore excluding the scheme doing it. It should be understood that the definition of the landlord contained in the legislation includes a letting agent acting on the landlord’s behalf. Therefore, prescribed information could be given by the agent.

Thirdly, not all of the information listed in the prescribed information legislation had been provided. Partial provision was not sufficient to comply with the legal requirements.

Fourthly, providing a link to the website of the scheme was not sufficient to comply with the information requirements. The landlord has no control over the content and the legislation very clearly requires the landlord to certify that the information provided is true to the best of the landlord’s knowledge and belief. With a web site that could change, outside the control of the landlord, it was impossible for the landlord to confirm the veracity of the information on the web site.

The judge also said this solution was not acceptable as some tenants would not have internet access.

Being a High Court case, county courts are bound by it and it has made compliance with the prescribed information much more difficult and more important too. Failure caused this landlord to have to pay the penalty of three times the deposit.

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Nick 28th October, 2011 @ 16:59

I must say that the amount of landlords who are unaware of this scheme is shocking. If you are renting out a property, you must recognise that you are essentially running a small business, and actually take the time to do the necessary research.

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sheena 14th November, 2011 @ 10:14

im landlord of one property, i really didnt realise how vital it is for the me to protect the deposit my tenant gave me!

He as been in the property for over two years and is currently living as statutory periodic tenancy.

He is late with one months payment at the minute...i know he is at the property but hes ignoring all my efforts to contact him!

I would love some advice...firstly with the tenant deposit...could i still put it into a protection scheme? secondly what procedure should i take with regards to him not paying rent and ignoring me. I live far away from him which makes matters more difficult.

What notice do i have to give him to vacate the property...as i may have to move back into it in two months time.

would be extremly greatful of any advice given

thankyou

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Jon 25th November, 2011 @ 17:16

My landlord has just been ordered to pay my bond and a further 3 x the bond. However the landlord is appealing saying we are no longer tenants so the rule of 3 x does not apply??? Can anyone shed light on this matter please

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Nakazawa 1st December, 2011 @ 19:09

Please help.

My land lord is with holding half my deposit for what he says is a soiled mattress (the apartment was furnished). I believe this should fall under the category of general wear and tear (a new mattress cant stay new forever). Anyway, he has never put my deposit into a holding scheme during our 6 month's tenancy. I only want back my deposit has he broken the law, can we sue for our deposit back, or 3x's? or can we do nothing? nay help really appreciated.

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tanya 19th December, 2012 @ 17:17

i have rent a property from a landlord, been living at the address for 2 years 6 months, my tenancy has expired from the first year but he didnot renew it. he has not put my deposit in a deposit scheme and the place is been deteoriated badly theres no heating in the bathroom, the bedrooms are damp the back door a lot of air is coming in and the kitchen is damp there is a lot of water coming through the wall in the kitchen, the gate at the front is broken down the bathroom roof is falling down and my baby keep getting a cold every so often. when keep telling him to fix the problem he keep saying he will do soon, yet im up to dated with my rent. what can i do to solve these problems

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Mike 20th December, 2012 @ 11:52

Hi Tanya,

It sounds to me like a number of the things you mention are health and safety issues.

Have a look at this. Probably not your council, but the details are still relevant.

http://www.scambs.gov.uk/content/housing-poor-condition

You should send a letter to the landlord detailing the issues with the property and asking him to fix them. Mention that as your child's health is at risk, you are providing him with this opportunity to resolve the issues before you contact the council's environmental health dept (they can assess the property & can force the landlord to implement repairs)

Of course, you run the risk of him deciding you're a problem tenant and serving you notice. However, unless he has grounds to evict you for breaking the tenancy agreement, the worst he can do legally is to serve you with a section 21 notice - which is NOT VALID if your deposit has not been registered. Even if it was,do you really want to keep living like that with a baby?

Of course, if the landlord has a full inventory signed by yourself showing the house was in good condition when you took it, things may be somewhat different...

As always, citizens advice can assist with all of this.

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Matthew 16th February, 2013 @ 08:28

Can anyone shed any light on what the legal standing is in 2013 for not securing a deposit in time but then subsequently securing it?

Is legal action being persued or is it still as stated at the top of this blog that as long as the deposit is secured prior to a court case all is OK.

Any insights into this matter would be appreciated.

Thanks

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Benji 16th February, 2013 @ 18:15

Mathew,

It has changed, see this link;

https://www.landlordsguild.com/tenancy-deposit-schemes-commencement-provisions-for-6-april-2012/

•The time for protecting a deposit is increased from 14 days to 30 days
•The time for supplying the prescribed information is also increased from 14 days to 30 days
•The time limit of 30 days will be absolute and protection (or providing prescribed information) after 30 days will not prevent a penalty being payable to the tenant [authors note: but by doing so albeit late may well reduce the penalty]
•The penalty payable will be between the amount of the deposit and up to three times deposit as the court sees fit
•A former tenant may make a claim for the penalty so overturning the decision in Gladehurst Properties Ltd v Hashemi[2011] EWCA Civ 604.
•If a landlord has failed to protect within 30 days, the landlord may only serve a section 21 notice by repaying the deposit in full, making deductions that are “agreed” with the tenant or if an application for the penalty has been determined.
•If a landlord has protected the deposit within 30 days but failed to provide the prescribed information, then it would seem late providing of the prescribed information is permissible in order to then serve a section 21 notice.

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Lewis Wright 2nd April, 2013 @ 08:55

I am in the process of filing a claim for my deposit as my landlord has not returned it after 2 months of leaving the property and has not secured the deposit. When claiming, should I claim for 3x the original deposit, or claim for the deposit amount and let the courts decide if 3x the deposit is appropriate?

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Bill 16th April, 2013 @ 20:32

Request for advice on the Deposit Scheme - thank you.

Hello, I rented out a property through the introduction of a friend. The tenants have been really good and we get on well.
I let them the house as I was working overseas. The original agreement was done as an AST for 12 months with a 2 month break clause back in July 2008. Then it was renewed one year later, so 2009, with me still overseas (far-east).

In the AST there is a note of deposit for 800GBP, which was one month's rent. I was not aware of the secured deposit scheme at that time, but did tell the tenant I would keep it in my separate HSBC bank account for them, where it still is untouched.

Well, my son was killed on his way to school so we moved back to the UK mid-last year. I got another house as the pain of memories in the other one was too much for us to go back there. Now I have also lost my job and need to sell the other house or possible lose both. So, I have been reading about asking them to leave and issuing a notice 21(4)(a).

Only now, while researching this I have been made aware of this secured deposit scheme, and I am going to need them to leave within 3 months. I have no problem giving them the deposit back and if I can help them find another place I will, but it is now almost five years they have been there and due to our circumstances, it is time to let go of the property and sell despite mixed feelings.

So, could someone knowledgeable please advise me on the best way to proceed that is in the best interests for both myself and the tenants, while making sure I have some sort of legal backing or 'leg to stand on', if things get messy. I am hoping they won't but reading here, you just never know.

Other information just in case this helps. The tenant also lost his job several years ago so I let him off 2 months rent and lowered it to 630GBP/month while he got another job. He is also about 2 weeks technically late on the rent each month due to the new job payment schedule, which I don't mind as long as it does get paid.

Hoping to sort this out without conflict.

Thanks and regards / Bill

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Lynn 11th October, 2013 @ 07:15

I rented a flat through the agent on 14th May and paid 2 months rental to him as deposit.

We moved in the flat on 2nd Sep. Until the end of Sep, found that the agent / landlord did not put the deposit into the scheme. I urged them to do so.

On 7th Oct, the agent told me that deposit protected, but it was over 140 days. Can I still claim the agent / landlord for not protect the deposit within 14/30 days of received the deposit from me?

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Dan 23rd July, 2014 @ 21:37

This is ridiculous, you say you "don't want to rock the boat" you mean you don't want to get caught. End of the day you have done something wrong, be honest and give the money back to the tenant then the tenant can't take legal action as you have given it back. Far to often there's landlords coming on here because they have broken the rules and don't want to put there hands up and try to find a way out. If my landlord was nice to me and came and said look I've made a mistake please help me rectify it. I certainly would do because we all make mistakes at the end of the day, I wouldn't be so willing to help if I found my landlord to be lying just to cover himself from legal action as that shows to me a bad character and untrustworthy. Also I'm a housing benefit tenant and go out of my way to make things easy with my landlord so when I'm home I don't have any worries and I know I'm secure. There is such a bad reputation about housing benefit tenants and I get angry when I'm a perfect tenant and hear landlords not liking dss as there untrustworthy and a hassle and come on here and all I read is landlord faults how do I save my own skin, hypercritical or what.

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JEAN 14th October, 2014 @ 17:45

I rented a flat the lease started before March 2011 for some 5 years this is before the new law regarding Protection Deposits was in place. The deposit was held within Rental account separate for my own. The lease ran concurrent with no increase in rent or lease renewed. They have now left leaving a significant amount of repairs. I have since purchased the replacement items and deducted them from their deposit they are now saying they want everything back as I did not lodge their deposit and are going to take me to court. Can this be the case even though I have the funds and evidence of the damage . I only supplied one lease it has never been renewed and if dated before March 2011

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Benji 14th October, 2014 @ 19:34

@Jean,
Yes, you've fucked up (probably on a number of levels).
The deposits law is bollocks but as a landlord, you should know all this.
Either pay up or call their bluff.

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jean 15th October, 2014 @ 23:33

Benji seriously I am concerned now you mentioned a number of levels what are they? I now ive been a bit nieve but really didnt know about all this what is the normal fine in scotland? Afterwards can I pursue the tenant for all the damages separately? Is this two different issues?

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Benji 16th October, 2014 @ 08:42

@Jean,

http://scotland.shelter.org.uk/get_advice/advice_topics/paying_for_a_home/deposits/tenancy_deposit_schemes

If you have paid a deposit and your landlord doesn't register it, then you can apply to the sheriff court and the court can order the landlord to pay you up to three times the amount of the deposit paid.
/snip/
It doesn't matter what date you moved into your property as all tenancy deposits should have been registered by 15 May 2013.

https://rentingscotland.org/landlords-guide/tenancy-deposits

"You mentioned (probably) a number of levels, what are they?"

Are you a registered landlord?
AT5 notice?
T.I.P?
Gas safety checks?
Smoke detectors?
Written tenancy agreement?
Do you have very good proof of the property condition at start of tenancy? i.e a photo/video inventory.
Have you taken wear and tear into account with your deductions? i.e If you've billed for a new carpet, have you taken off (at least) 5 years of the expected lifespan of a carpet.

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James 18th October, 2014 @ 17:29

Hi I can’t find anywhere a decisive answer anywhere that can help me. I rented a room out in my home to a friend. They gave me the deposit and I placed it into a savings account for holding at Barclays. He caused damage above and beyond the actual deposit amount. He gave his notice in over a month ago and I have since sent a letter to his new address listing the damage and the costing and informing him his bond would not be returned.
He is now threatening legal action with regards to me not placing the money in a TDS account. I was completely unaware this was a law and wondered what I do from here?
He is sadly being difficult despite years of friendship and me taking him in when he was sleeping on someone else’s Sofa.
I was more than happy to give the Deposit back if he hadn’t have damaged the home.
I now fear I might be forced to pay the 3x Compensation payment and be out of pocket for the damages he has caused.

If anyone has the slightest idea how I can deal with this, please let me know.

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The Landlord Avatar
The Landlord 18th October, 2014 @ 19:12

James,

Ignore him. The TDS only applies to shorthold tenancies. If he lived in the same house as you (the landlord), he can't technically be a tenant, he's a lodger.

You're safe.

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Paul Mark 18th October, 2014 @ 21:27

I am also having the same kind of problem as James. However my Daughter lives at the property and deals with all the day to day business of the house. The house is in my name but we rent out the room to two of her friends. One of them left due to a falling out and I am also being threatened for not using the TDS Scheme. This seems to be a common blind spot. The house is fully furnished by my daughter; they were given everything from towels to use, bedding and so forth. Does this also mean they are classed as a lodger or a tenant? As the house is in my name but my daughter is acting landlord.
I am worried as we didn’t know about the TDS Scheme we could be liable to face the consequences even though they, the said tenant/lodger caused damage to carpets and furniture.
I am also being threatened with legal action yet my daughter has retained the money in a separate account.

Please advise me if this counts as a “lodger”. It would be a huge relief for both of us.

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Benji 19th October, 2014 @ 12:04

@Paul,
Probably a lodger look at this link;

http://www.lodgerlandlord.co.uk/2010/03/09/the-five-main-differences-between-a-lodger-and-a-tenant/

Although if you had set up a tenancy agreement jointly in your daughters name and the others, then not.

It also helps if your daughter received the rent and the deposit rather than you.

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Paul Mark 19th October, 2014 @ 16:55

@Benji,

Thank you for the link, it helps a lot to clear up some confusion.
Parts 1, 2, 3 and partly 4 apply. On moving in they were provided with bedding and towels to use. Although the lodger/tenant would mostly wash them themselves. Sadly this is also one of the items we are charging for as they have taken the bedding provided for the room (like stealing from a hotel)

Also my daughter was in sole charged of the finances, taking and signing for the bond, the rent and paying the bills, plus dealing with anything such as replacing light bulbs or dealing with any broken household items.

My daughter does not have a contract as she is my daughter and I see her as landlord, the two girls each had their separate contracts. I have included the first “3” points stipulated in the contract which was signed by the girl in question. It states is NOT an Assured Shorthold tenancy, That a landlord is living at the property and that the deposit shall be held for the duration by the landlord.

I'm hoping this is good enough to prove the fact it was a “Lodger” contract

1. General
1.1 In this Agreement and reference to the masculine included the Feminine.
1.2 The Room is part of a house or flat which the Landlord occupies as his only principal home.
1.3 The Tenant acknowledges that this tenancy is not an assured or Assured Shorthold/Short Assured tenancy by reason of being a tenancy granted by a resident landlord.
1.4 This Agreement will terminate automatically without any notice if the Tenant ceases to reside at the property or if at any time more than two of the rent payments are due and unpaid

2. The Room
2.1 The Room is part of the Property specified above, together with any outside space or garden.
2.2 The Tenant will be allowed to share with the other occupier(s) of the Property the use and facilities of the common parts of the Property (including such bathroom, toilet, kitchen, sitting room and other facilities as may be at the Property).

3. The Deposit
The deposit specified above shall be paid by the Tenant on the signing of this Agreement and is to be held by the Landlord for the duration of the Term as security against non-performance of his obligations laid down within this Agreement. The deposit shall be returned to the Tenant (without interest and less any relevant deductions) within 28 days of the termination of the tenancy and the vacation of the premises.

I am so sorry for the length of this message and I really appreciate the effort made to reply. I am truly grateful

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Benji 19th October, 2014 @ 18:44

@Paul,

IMO that is as clear cut as it can be, can't see how they can be anything but a lodger.
I wouldn't worry about it.

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Gareth 25th October, 2014 @ 10:38

Hi,

I wonder if anybody can help clarify something for me.

I have recently moved out of a property. If my landlord (in my case the mesne tenant - I was the subtenant) did not inform me of any of the details of the deposit protection scheme they placed my deposit in, can I claim compensation even though I have recently moved out?

I believe that if I was still living at the property, not informing me would be a breach of the law, but is that still the case now that I have moved out?

Also - what is the legal argument for me being able to reclaim all of my deposit, despite the fact I moved out with only 2 weeks' notice because of aggressive behaviour by my landlord? I feel they broke one of those 'implied terms' of a tenancy agreement - i.e. 'you have the right to live peacefully in the accommodation without nuisance from your landlord' (I'm quoting off a website so not sure if that's the exact legal definition).

Many thanks

Gareth

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Gareth 25th October, 2014 @ 10:47

Hi again,

To clarify my above post- I have yet to receive any of my deposit back from my landlord. So as I was not informed of any of the DPS details, does this still leave them liable, even though I have moved out?

Many thanks.

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Jeff 25th November, 2014 @ 19:27

Please advise

I live in a private rented house with my family. We had a 12 month tenancy agreement which expired some years ago and we are now on a month by month with no new agreement (i believe this is a periodic tenancy agreement). My landlord has never given me a new agreement since the original. He is now selling the house and we have agreed to viewings but on our terms. I was asked to do a viewing which i was not available for so the estate agents said they would do it in my absence. I still disagreed as its my personal property in the house and diet want strangers wandering round. He served 24hrs notice and i still declined access. I was at work and was called to say they were entering the home. I came home and asked them to leave, they left. The landlord has now turned on me and is being a bully. I have been informed to change locks and also look into the rules regarding whether he should have re issued my TDS and prescribed information on the start of the periodic tenancy. Please advise

Many thanks

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