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

For a general overview 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 your tenant(s) deposit for one reason or another, you’re in the right place.

Brief reminder of what is required to comply with the Tenancy Deposit Legislation

To be in compliance with the Section 213 Housing Act 2004, any money taken from a tenant as a security deposit must be protected in a Government approved scheme with in 30 days of receiving it. Just to clarify, it is NOT a legal requirement to take a deposit, so this legislation only applies to those landlords that do (which, quite frankly, is most).

After the deposit is protected, the tenant must be given the Prescribed Information related to the protection of the deposit, also with in 30 days. NB. Make sure you have evidence that you have done it.

It’s also worth noting that ALL deposits ever taken must now be protected– even those taken before 2007 when the original deposit legislation was introduced (that was previously NOT the case). Landlords had until the 23rd June 2015 to protect deposits!

Once the deposit is protected and the proscribed information is served with in the allocated time, you have complied with the law until the tenancy ends – even if you allow it to roll on (known as Statutory Periodic Tenancy) after the fixed term has ended.

I didn’t protect my tenant’s deposit!

Mr Forgetful
If you are one of the many landlords or Letting Agents (yep, they screw up too, but that’s probably no surprise) who have not protected your tenants deposit you’ve got a problem. Well you know that otherwise you wouldn’t be reading this. Hello, welcome.

There have been so many changes to Deposit Protection Legislation, since it was foist upon us in the Housing Act 2004, it’s not surprising that so many landlords get it wrong– but unfortunately ignorance is no defence in law.

I am going to do this backwards because it is when a problem shows its ugly face that most landlords realise that they have screwed up, so let’s look at some of the most common scenarios (sadly, none of which will save you), and from my experience, when most landlords frantically start becoming concerned about their non-compliance…

1) My tenants are threatening me
Your tenant(s) has discovered they can prosecute you and potentially make a quick buck by seeking compensation for your failure to comply with the law. Either you pay compensation or face legal action.

This is unbelievably common, which is pretty sad. More about what to do in this scenario below.

2) I need to get rid of my tenant but I can’t serve a Section 21
The penny usually drops when you reach for a Section 21 Notice and read the notes which tell you what you have to do to serve a valid Notice on your tenant.

If the Deposit Protection Legislation has not been followed, you’re screwed – meaning your only option is the hassle of a Section 8 Notice where you must prove grounds for eviction (which you may not even have).

3) The Judge threw out my Section 21 because I had not protected the tenants deposit
Most savvy tenants will take advice when they are served with a Section 21 and one of the first questions they will be asked is “Did your landlord protect your deposit?” Followed by “Did he send you the legally required information about your deposit protection within 30 days?”

If they cannot answer YES to both questions they will be told to contest the Section 21 in court. That’s when the Judge will most likely look at the details and throw the case out of court, so here you are.

4) A bloke in the pub told me that I should have protected my tenants deposit – what is he talking about? I didn’t have a clue!
This is a typical case where the landlord has just one property, from when he moved in with his girlfriend, and hasn’t a clue about the landlord legal requirements. You have also heard through your sources that the tenant can gain compensation… and now you’re scared, wondering if it’s all true.

Yes, it’s true.

5) I forgot!
You forgot to protect the deposit and/or serve the prescribed information (not sure how many people will believe this one!).

Any of the above sound depressingly familiar? If your case is not one of the above (or similar), please leave a comment with the details…

I didn’t comply with the tenant deposit legislation– what can I do?

Now, let’s get to the crux of the matter.

As it stands, these are your options:

  • Recommended solution: Protect it now and serve the prescribed information hoping that if an issue arises and it goes to court the Judge will take the view “better late than never”
  • Pay the deposit back to the tenant and hope that he doesn’t find out that he can get compensation, although it might be difficult to explain *why* you’re giving it back.
  • If you’re trying to get rid of a rogue tenant, use a Section 8, with grounds for eviction.
  • Do nothing, but sit tight and pray that your tenants don’t realise protecting the deposit and serving the Prescribed Information is a legal requirement and/or they don’t care enough to seek compensation because you’ve been an amazing landlord.

If your tenant hasn’t mentioned anything…

There’s a good chance your tenant isn’t aware of the tenancy deposit legislation or the ramifications of failing to comply. It’s also not unusual for tenants to be aware, but waive their right to prosecute because their landlord has been reasonable throughout the tenancy.

The point here is that you don’t want to give your tenant a reason to look into the legislation or exercise their right to claim compensation.

  • The most common reason why tenants proceed to take legal action is because they feel screwed over by how the deposit has been handled (i.e. when landlords try to make deductions over trivial and menial damages, which actually, quite often fall under wear and tear). So when it’s time for them to vacate, forget the temptation to deduct £90 for carpet cleaning, or £50 for picture hook repair, just let it go. Otherwise they may start looking into their rights. Generally speaking, biting your lip and absorbing those costs is the safest and cheapest option!
  • The second most common reason is failure to complete repairs promptly, or making repairs at all. Ignoring your duty to maintain and repair is a sure-fire of pissing your tenants off, consequently giving them reason to prosecute given the opportunity. So with that in mind, and ethics aside, it might be sensible to ensure your attend to repairs and maintenance issues promptly, and generally be a good landlord all round (you should be anyways, mind you!).

    It’s also worth noting that if your tenant does take the matter to court to seek compensation (regardless of whether you’ve been a good or bad landlord), some Judges do take into consideration how the landlord has conducted themselves during the tenancy before determining how much they should be penalised.

Can I get in serious trouble for not protecting my tenant’s deposit? What can happen?

Putting it bluntly, you have broken the law, so yes, there can be consequences.

  • A tenant, who takes legal action, can expect to be awarded compensation because his legal rights have been denied. A Judge has the power to award between 100% and 300% of the deposit in compensation and may also instruct you to return the whole deposit. This can be an expensive loss, not just because of the compensation, but also if you actually need use the deposit to cover damages.
  • Because you have not complied with the law, your rights to use legal process to remove a rogue tenant have been reduced- you can no longer use Section 21 of the 1988 Housing Act (which is often the most efficient method of removing a rogue tenant).

My tenant is threatening me with legal action, what should I do?

Ok, so presumably shit has hit the fan; your tenant has discovered you failed to comply with the deposit legislation, and now they’re after a handsome payout. Unfortunately, this is becoming a terribly familiar scenario, rightly or wrongly so.

What to do at this stage will depend on the individual circumstances, so there isn’t a simple solution for all. However, there’s more information available in the “ways you can legally end a tenancy agreement.

My letting agent did not protect the deposit…

Oh dear.

Your hired help has failed you. Common scenario.

So where do you stand in this case? Are you given the luxury of mercy? Unfortunately, you’re in the exact same position as if you have no association with a letting agent. If its of any consolation (which it probably won’t be), the law was specifically changed in the Housing Act 2004 to allow tenants to sue the agent as well as the landlord for the penalty for non compliance of protecting the tenancy deposit.

If you are using a Letting Agent and they do not protect your tenants deposit correctly– you’ll still ultimately be held responsible. Even if you have not touched a penny the law states that the deposit was taken on your behalf and therefore you are responsible. That’s why it’s essential to ensure that your Letting Agent is a member of a Property Redress Scheme (legally required since October 2014) so at least you will have redress if they screw up.

A Letting Agent cannot go to Court for Possession without the property owner, he can go with you as what is known as a “McKenzie Friend”. He can complete the Notices and other documents but you must sign them. Only a legally qualified person can represent you in Court.

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!

526 Comments- Join The Conversation...

Showing 476 - 526 comments (out of 526)
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mr.spacemaker 22nd November, 2017 @ 20:20

@David

No arrears and no damage but the rent does need to go up (already agreed by the tenant some time ago) and the tenant has previously requested a new tenancy agreement solely in her name, for benefits reasons. EPC, how to rent, and inventory not a problem, and would be a good opportunity to get these signed for.

S21 is not on the horizon, but would be good to have everything in order regardless.....

Deposit is currently protected (and always has been) so it should be easy enough to move/re-protect. The only potential issue is that her ex is named as the lead tenant on the deposit protection. Again, this would be a good opportunity to make sure absolutely no grey area regarding deposit protection or PI.....

Do you still think best to leave things as they are for now? Landlord would be missing out on £150 per month rent increase (long overdue), but by doing nothing they could wait until after October 2018 and then have no worries about proving PI was re-served when the tenancy became an SPT?

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Milner James 23rd November, 2017 @ 16:39

Hi @David, I contacted you back in October. Thankfully we had been given a possession order following a compromise agreement.

The date to vacate given in the order for possession has now lapsed and the tenant remains in my property. They have even emailed me to say the Council has advised them to remain in my property until the eviction notice date. I now understand that I have to apply for a warrant of possession. I understand I have to complete the N325 form - are there any other forms I need to complete to send off to court? Do you know how long roughly it takes to then have a court date?

As there is no money judgement (thanks to the compromise agreement) I know I can only rely on the County Court Bailiffs rather than the High Court. I've read online this can take between 4 - 7 weeks depending on the local council, which to me seems ridiculous!

Any advice appreciated

James

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David 24th November, 2017 @ 13:35

@James

I think that there are two potential reasons the Council gave this advice, one is that they reviewed the case, checked the deposit protection situation and advised Tenant to wait for Court decision which they felt would go in his favour.

The other is that they are bogged down and giving terrible advice that is against guidance so they are clinging onto ambiguous law.

The latter is such a despicable practice; it is a sad fact that despite a huge amount of effort from MP's and stakeholders that led to a 400 page PDF giving guidance, some Councils are still doing it.

That Guidance was supposed to put a stop to this and the Housing Minister even wrote to every Council CEO pointing out the guidance. The idea was that when they were served with am S21 which could not be defended the Council would take the end of the 2 months notice as the date their obligation started and even try to offer accommodation to those it had a duty to before the expiry.

Some Councils deliberately delay delay delay, some are even saying they are interpreting other High Court and Appeal Court decisions that everyone knows are not relevant as introducing ambiguity.

So now the Government is changing the law but it is going to take time.

However, for some Councils there is a chance that this is incompetence rather than a deliberate attempt.

From what you said I think it is worth checking they have not got their wires crossed, you said "has advised them to remain in my property until the eviction notice date."

The Eviction Notice is the Section 21 notice and the date is the expiry date. So the Council should have offered them a place if it has a duty to them.

If they have rent arrears they may be deemed as intentionally homeless but if they are in a priority vulnerable group (e.g. mental health or condition) and Council has been made aware of that, then they have to take them for assessment (usually for 6 weeks in temporary accommodation.

BEFORE you get bailiffs sometimes what works for Councils is a little pressure by confirming or challenging their decisions, they may not even be aware you obtained Judgement.

In the first place ask the Tenant to please forward you a copy of the letter they got from the Council.

If they will not give it ask for the date it was sent, you then call the Council, ask them to please confirm that they have advised your Tenant to remain in the property despite you being granted possession by the Court.

Wait for a confirmation and take notes

Then ask them what they are waiting for, if they say the bailiffs then ask them whether the Council is deliberately contravening the Homelessness Code of Guidance for Local Authorities.

Wait for a confirmation and take notes

The ask them whether they are aware that their action will not only add huge stress to the Tenant, but will increase their debt as you will seek your legal and enforcement costs, which in turn will affect their ability to pay rent in a future home and may be a further cause of homelessness for this household.

Wait for response and take notes

If they confirm that they have given this advice then ask them, are they aware that in 2016 the then Housing Minister wrote to the CEO of every Council in the Country saying

“The statutory Homelessness Code of Guidance, which local authorities are required by law to have regard to, is clear on this matter. It contains guidance on how authorities should treat homelessness applications in circumstances where a tenant has received a valid s21 notice. It says that housing authorities should not, in every case, insist upon a court order for possession and that no local authority should adopt a blanket policy in this respect. The Guidance states that if the Landlord intends to seek possession and there would be no defence to an application for the possession order, then it is unlikely that it would be reasonable for the applicant to continue to occupy the accommodation.

Unless a local authority has very good reason to depart from the statutory guidance then they should not be placing households in this position….

….I would be grateful if you would cascade this message to your housing teams.”

Then ask them if they are deliberately contravening this guidance

Wait for response and take notes

If they say no, then ask them on what basis they have given this advice

Wait for response and take notes

They may say that they felt because of the deposit situation they felt the s21 did not have a chance, in which case you can say that a settlement has been reached on that matter and you now have a possession order.

Then ask their email address so that you may formerly advise them of same with copy of the Judgement.

Then tell them that you wish to avoid bailiff enforcement but if the Council do not take their duty of care seriously you will hold them responsible for your legal fees and consequential losses.

Ask them to immediately contact the Tenant, to retract the advice to stay in the property with a CC to you and offer the Tenant a place in temporary housing pending assessment of their case.

Say that you are prepared to give them 4 working days to take on the Tenant or else you will commence enforcement and hold them responsible for costs arising from their bad advice.

Then email the CEO explaining same and giving them the same notice.

I suspect that they did a rudimentary search for deposit and found it had expired so advised the Tenant to wait till the matter when to Court.

Did the Tenant not attend?

What were the terms of settlement?

The Council may still advise the tenant to Appeal the decision as it probably will not cost them anything.

Remember the settlement can only be for the sanctions, it does not override common law, so they can still argue at Appeal that at the commencement of proceedings the Deposit Protection was not in place. As I have said before, some have argued commencement of proceedings is the Court appearance but as an accelerated procedure it is actually the issuing of the s21 notice.

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Milner James 24th November, 2017 @ 14:23

@David

Thank you so much for your help.

So I have in writing from the tenant 'As per the Councils advice we shall not be vacating the property today as we have been unable to find suitable accommodation yet.' I predict the Council would have told them verbally, nevertheless I've asked the tenant to confirm this - I am not too hopeful the tenant will even respond. I'll give the Council a call as per your advice and will let you know how it goes.

The tenant did attend the hearing - terms of settlement were to return deposit to the tenant and to waive off the arrears accumulated until the repossession date. We negotiated an earlier repossession date with them which has obviously now since lapsed. The tenant's solicitors actually posed this settlement agreement to us which we accepted. We risk assessed and in the grand scheme of things thought these terms were acceptable given the potential financial penalty for letting the deposit protection lapse. I wasn't aware that there is an appeals process after an s21 judgement - is there a timeframe for this?

It is a sad state of affairs that Councils are giving such dire advice and absolving their responsibility.

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Bob 24th November, 2017 @ 14:46

An S21 does not end a tenancy. It really is that simple, whether you like it or not.
A reasonable tenant, all things being equal, would vacate when issued and S21, but they don't have to.

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David 24th November, 2017 @ 15:56

@James

Usually it is 21 days to appeal, they may have to fill in several forms if they did not ask for permission to appeal at the hearing, it is just a formality, even if the first Judge denies leave to appeal you can still seek permission to appeal BUT YOU MUST HAVE GROUNDS.

The Judge will only grant permission to appeal if they think the appeal has a real chance of succeeding, even that decision can be challenged.

Your Tenant would have grounds if they can show that when the s21 was issued the deposit was not protected. As I have said here many times, often a Judge's primary concern was whether you originally protected the deposit and whether it has been in a scheme ever since. As your protection had expired there was no protection in place.

You can read more about the appeal process in this PDF guide

https://formfinder.hmctsformfinder.justice.gov.uk/ex340-eng.pdf

Yes I find it disturbing that some Councils are giving such bad advice routinely, it tends to be in areas where they are in crisis.

I would be interested in what the Council say, they may well advise the tenant to appeal or hold them responsible for losing the housing by reaching that settlement.

Technically they are in breach of the settlement agreement.

In your position I would try to appear very firm but reasonable.

The purpose of section 21 is Recovery of possession on expiry or termination of assured shorthold tenancy.

The s21 notice is the beginning of an accelerated procedure for no fault possession

Strictly speaking, expiry, possession or Judgement actually end a tenancy.

I do not think a tenant should leave immediately when served, but when it expires if the procedure has been followed.

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Vicky Brenzeck 28th November, 2017 @ 13:25

Hi there,

I have come along this website while I was desperately looking for some help on my housing/deposit matter. I like the detailed and honest answers and I just have to post my problem, hoping someone is so nice to advise me on the problems I am facing.

The situation I am in is complex but can be divided in two main sections:

I signed an Assured Shorthold Tenancy agreement in 2015. It was renewed 2016. For the first tenancy agreement the Landlady did not secure the deposit. After every leaving tenant faced problems with the repayment of their deposits, I got suspicious and checked if it was protected in the first place. I rang all three Deposit Protection Schemes and none of them could provide me with a confirmation, that a deposit has ever been protected under required names/address. After addressing my concerns with the Letting Agent, I have been told, that the deposit has been protected because “the landlady is a solicitor and is aware of the law.” After I asked why I am not able to find the deposit protected anywhere the Letting Agent stated, that “the landlady had protected the money under her name and her address.” This statement matches a piece of paper from DPS the landlady provided me with, months after the tenancy agreement was signed in 2015. I am in possession of this piece of paper and it clearly shows that the money protected with DPS was protected under her name/address.

I have never been given any documents you are mentioning under “What is the prescribed information?” And according to the section “Prescribed Information” this is a breach of law.

After the tenancy agreement got renewed in 2016 the deposit was protected. But more than a DPS Email, no further information or documents were provided by the Landlady again.

The second part of my problem is connected to the unprotected deposit. After more than six months into my second tenancy agreement I decided to leave the property early. As required, I informed the Letting Agent and found a replacement as well as another tenant for an, at that time, empty room. The day I moved out I handed the keys over and transferred the rent for both new tenants and the remaining ones. References were accepted and contracts were ready to sign to finalize the swap. I never heard anything from either side until I got an Email from the Letting Agent, serving notice. The eviction notice was in my and the names of the remaining tenants

The Letting Agent claims the new tenants refused to sign the contracts. One of the tenants says in a written statement, that the Letting Agent would refuse them this right. Instead he told the new tenants that the house will be evicted and that they can stay until the end if they continue to pay rent. Both new tenants did that. One of them even continued the tenancy after the eviction, under a new contract.

Now the Landlady wants to deduct money from my deposit because my name is still in the contract.

I spoke to the Letting Agent about the breach of law regarding the unprotected first deposit. Also, I demanded my full deposit back then according to the law “you cannot prevent a tenant from having a tenancy just by not giving them a written tenancy agreement. As soon as they go in, start paying rent and the landlord accepts those rent payments a tenancy will be created under s54(2) of the Law and Property Act 1925.” After I mentioned those two points this always false friendly person showed a different side. He yelled at me and stated that he doesn’t have to listen to this shxx.

I am really afraid to take legal action because I am not sure how far s54(2) of the Law and Property Act 1925 will be accepted as an argument. Plus, would it be wise to write a notice before action letter myself?

I would be more than grateful if someone of you would take the time to give me some advice and just tell me how realistic my chances are to get my deposit back.

Thank you very much

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David 28th November, 2017 @ 15:07

@Vicky Brenzeck

Hi

You are right on most of what you have assumed,

The Deposit Protection is invalid if it is not protected in your name at the address of the property as whole point of the legislation is that you are aware of the deposit and that the DPS (or TPD or MyDep) are able to write to you at various stages.

The legislation was tightened further with the requirement to provide the PI so that there could be no excuse, misunderstanding or doubt.

Her registering it at her address would make any PI invalid.

The 2nd Deposit Protection is invalid if the PI is not provided, not via an email from DPS but in something the Landlord or their Agent gives you that meets the legislative requirements, including dates etc.

From reading what you have said not sure if you were in an HMO (more than 2 households). This adds additional legislation and depending on where you live, further local authority regulation and registering etc.

Was each tenant given an AST or did you share an AST?

Were you listed as the Lead Tenant?

Was there a break clause in the tenancy agreement?

Was a licence instead of an AST issued (this would be illegal based on what you have said but is common).

A tenancy is created as soon as a Landlord or agent takes money and provides the keys and especially after the first night or if a tenant remains in the property beyond expiry of a AST. It is illegal to evict a tenant without providing a formal Section 21 notice which could have been rejected as invalid due to the incomplete deposit protection.

You need to be making the landlady aware directly, you can get her details from the tenancy agreement or if they have used the agents address you can search the property details Land Registry for £3.

As a Solicitor she should know better but she may work in a different area of law or have left it to the agent to do.

However, Solicitors are regulated by the SRA principles, whilst these mostly apply to their clients there are aspects about how they hold themselves publicly, including breaking the law.

Examples of this may include

"Behave in a way that maintains the trust the public places in you and in the provision of legal services comply with your legal and regulatory obligations and deal with your regulators and ombudsman in an open, timely and co-operative manner".

Deposit protection is a legal and regulatory obligation, albeit not connected to her work, it is something she should have done in accordance with the law.

There is a lot of personal information here about your situation and to avoid you prejudicing yourself or giving away information she may see you may want to communicate with me privately.

You can do this by clicking on the Landlord forum link at the top of the page, then once you have registered and logged in follow this link to send me a private message.

bit.ly/davidpip

I am not able to legally represent anybody from the forum but I am happy to offer detailed opinion and suggestions.

Look up the agent on All Agents, write them a formal notice of complaint regarding their conduct, including becoming abusive on the telephone stating the time and date, send a copy to the landlady. You may wish to give this as a reason for refusing to deal with the agents from now on. If the agent is a member of Arla report their conduct to them too, as well as MD of agency although often one and the same.

You said you moved out and it sounds like you are all party to one agreement with a lead tenant who acts for all concerned???

Does the tenancy agreement have details about your obligations to replace tenants or what happens when you want to leave and who shall become the lead tenant.

In the first place you need to get together with the remaining tenant and reject the S21 (if that is the notice that was served). You can all seek sanctions for the failure to protect the deposit in due course.

The goal here will be to reach a settlement, right now I am guessing you want the tenancy agreement terminated or your obligation to it terminated, you want your deposit back and perhaps at least 1x or 2x your share of the deposit for each tenancy (all to be negotiated), you also want a positive reference.

It is important that you and other tenants old and new remain united, getting a irrevocable letter of authorisation from them to act on their behalf regarding sanctions under s213-s215 of the Housing Act deposit protection would be a good start.

You need to ask each tenant what they want in terms of tenancy, it seems clear that this landlady wants all out, perhaps in some misguided idea that this will absolve her of the breach, but you have up to six years to claim.

Then it comes down to negotiation which is always best done direct, agents are just "in the way" and do not always act in the best interests of the Landlord in these cases. For example if they offered a "full service" one would have expected them to have protected the deposit within 30 days and issued the PI or even to have it in place on day 1 of the tenancy.

I may need to see both tenancies and you can put them on google drive or mega.nz then send me private message via the forum.

I can also write you a letter that will bring some sanity to this situation.

Do not worry, you are in a far stronger position and once made aware of the facts I expect she will settle.

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Vicky Brenzeck 28th November, 2017 @ 20:40

@David

Thank you so much for your replay, you can't imagine how much those clear words mean to me.

I have tried to send you a privat message, following the steps you said but I was unable to do so. It always results in an error. Do you have an idea what the problem could be?

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David 29th November, 2017 @ 01:07

@Vicky Brenzeck

Not aware of any problems other than the need to create a forum account, it will email you a link to confirm your email to verify.

After that follow the link above, then send a message.

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Vicky Brenzeck 29th November, 2017 @ 12:35

@David

Hi David,

I registered and I have an account. Still, when I go back to the block I cant click on the link you have provided.

Is there another option?

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Simon Pambin 29th November, 2017 @ 13:08

are you sure you've actually created an account with the forum -

https://www.landlordforumproject.co.uk/

It's not showing any new users since Monday.

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David 29th November, 2017 @ 15:38

@VickyBrenzeck

If you are certain after Simon's comment that you have created an account on the forum site and clicked on the activation link emailed to you by the site, then you may go to step 7, otherwise here are the steps

1. Click on Landlord Forum at top of this page

2. It should take you to https://www.landlordforumproject.co.uk

3. Click Red Register button

4. Scroll to bottom and accept agreement

5. Enter the following information

Username:
Email:
Choose password:
Verify password:
Verification
Type the letters shown in the picture

6. When complete check your email in that email look for the following and click the link below it

Before you can login, you first need to activate your account. To do so, please follow this link:

7. Once activated then login to forum site

8. Once logged in follow the link below

https://bit.ly/davidpip

9. Click "Send PM" to Send a message.

Hope this helps!

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mr.spacemaker 30th November, 2017 @ 02:03

@david

gentle reminder to read comment 476 if you haven't done so already :-)

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mr.spacemaker 30th November, 2017 @ 13:05

@David

Do you recommend using gov.uk form 3 for serving section 8 notice, or something else?

https://www.gov.uk/guidance/assured-tenancy-forms#form-3

Regarding the date in section 5 (The court proceedings will not begin until after:....), do people generally give exactly 2 weeks, or allow another day or two just to be safe?

Is it better to update the document by typing out all the required details (except for date and signature), write it out, or no difference? Is it safe to serve solely by recorded delivery, or better to also get it served in person?

The rent was due yesterday and there has been no contact since I met the tenant 2 weeks ago and agreed that he could have until the end of Jan to clear the 1 month of arrears. I emailed yesterday and texted today.

It's now 2 months of arrears, which is obviously grounds for eviction under ground 8 (and 11). I suspect the tenant will pay 1 month in the next week and then more or less keep to our agreement, but I want to make it clear that I will not tolerate any more late payment of rent....

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David 30th November, 2017 @ 14:55

@MrSpacemaker

Sorry missed your previous post, I am just collecting all the posts regarding your friend to refresh myself on the case in question.

Generally, I am reluctant to give suggestions on forms because people reading them can assume they apply to them without considering differences in circumstances, also because there invariably more than one form required if you actually want a hearing or for the Court to consider something outside the scope of a particular form or track etc.

The clue is usually on the form, so for Form 3 it says

Housing Act 1988 SECTION 8 as amended by section 151 of the Housing Act 1996, section 97 of the Anti-social Behaviour, Crime and Policing Act 2014, and section 41 of the Immigration Act 2016.

So first four words

Then the directions

• Please write clearly in black ink.
• Please cross out text marked with an asterisk (*) that does not apply.
• This form should be used where possession of accommodation let under an assured tenancy, an assured agricultural occupancy or an assured shorthold tenancy is sought on one of the grounds in Schedule 2 to the Housing Act 1988.
• Do not use this form if possession is sought on the "shorthold" ground under section 21 of the Housing Act 1988 from an assured shorthold tenant where the fixed term has come to an end or, for assured shorthold tenancies with no fixed term which started on or after 28th February 1997, after six months has elapsed. Form 6A 'Notice seeking possession of a property let on an Assured Shorthold Tenancy' is prescribed for these cases.

To be honest I prefer to enter text via Doc as I think it looks more professional.

With Section 5 you want it to be at least 14 days from service, I advise 5 copies, one by mail, one by signed for mail, one taped to the front door and one through the letterbox (with video or photo of both) and one by email.

In your grounds use the mandatory 2 month arrears but also the Discretionary Ground 11 for repeated non payment of rent, that way it lays it out in black and white that each time he fails to pay rent he is opening himself up to it.

I have real sympathy for you after your previous tenant and this one seems to know what he is doing. You are right to push back or else risk being his new parent, i.e. he will suckle off you or think you are his bank.

Do you have his employment details, did you fully check them before taking him on, further enquiries to them may make him sit up and listen, he authorised you to seek references so it is entirely reasonable to do extended checks. Asking if he is a full time employee and is his salary fixed or variable etc. For people of his culture this may be powerful as shame is very powerful, but do not serve him at work address.

Also check his other references.

I did say that it is better to get at least 50% of arrears immediately and then no more than a further month as he should have had the money already. No "I spent it excuses" I would say "well borrow it from someone else, I am not your bank and you are risking the roof over your head".

When you write to him make sure you tell him that you will be holding him responsible for the performance of the contract including any legal and additional administration cause by his failure.

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Cafedemichelle 8th December, 2017 @ 14:50

Hi - I wonder if you can help please?

I didn't protect a deposit from 28th November 2016 and I need to get the tenant out through his anti-social behaviour and damage to the property.

I have read through your advice and have just protected the deposit using 28th November 2017 as the start date of the AST.

Can I issue a section 21(4)(a) on grounds 10, 13 and 14 (having read all through the grounds these are the ones that apply to him).

He is a liability within the building and my insureres have suggested I get him out asap.

Many thanks

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David 9th December, 2017 @ 02:08

@Cafedemichelle

Your appear to have your wires completely crossed.

I assume you mean Section 21 form 4a, it would not be valid for that tenancy, it was replaced by 6a which you can get from link below, but hold off for a minute.

https://www.gov.uk/guidance/assured-tenancy-forms

Read up on post Oct 2015 Section 21 changes.

http://www.propertyinvestmentproject.co.uk/blog/new-section-21-regulations-2015-landlords-england/

You quote grounds 10, 13 and 14, a section 21 is a no fault eviction process, you seem to be confusing it with Section 8.

Section 8 grounds you quote are discretionary not mandatory, you will need very strong evidence for discretionary ground 14. Usually to include months of diary sheets, evidence from more than one party, reports from Council and Police if you really want to win, you pay the fee either way.

If you did not use S8g8 it suggests tenant owes less than 2 months rent or is catching up.

http://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/

If you failed to protect the deposit then you can't have served the Prescribed Information and until you do, no S21 may be served.

You said that you used 28th November 2017 as the start date of the AST, when in fact it was a year earlier. Whilst you need to protect a deposit as soon as you become aware of the failure, you must not make a false declaration.

The deposit protection company will write to the tenant using the details you provide, they will notice the error in start date. The may be wise to the Deposit Protection legislation and just biding their time.

The fact that you said you took the deposit on 28th November 2016 suggests that the one year tenancy has expired, it has either rolled over to a Statutory Periodic Tenancy if the tenant remained and did not sign a new agreement or you get them to sign a new agreement, which may have a minimum term.

Either way, because the deposit for the first tenancy was not protected, it means that sanctions may be due on the second tenancy, whether AST or SPT.

You have screwed up, it stands to reason that if you did not protect the deposit you probably did not give the tenant an EPC before the tenancy, did not give the Government "how to rent" document, did not provide a Gas Safety certificate (annually).

All of those need to be done BEFORE you issue an S21 or it will be thrown out and you will lose your Court Fees.

Issuing a S21 or S8 will piss off your tenant, they will seek advice, the first thing they will be told is to check their deposit was protected within 30 days and the PI served within 30 days. Then they will check the other prerequisites for 21 or S8.

You suggest you are an Agent, your failure to protect the deposit will render the Landlord liable for sanctions, you need to inform them at the soonest possible time. Either the Landlord is entitled to seek claim against you not only for the sanctions but also for any consequential costs, including legal fees.

I would suggest you have the Landlord read this page and the post below in an attempt to reach a settlement.

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

If you are an Agent then it is you that is the liability to the Landlord!

I would suggest you seek professional training, perhaps try to meet criteria to join ARLA

http://www.arla.co.uk/training-qualifications/

If you are actually the Landlord then you still need to hold off any notice, you need to negotiate the sanctions, that is going to mean finding out what the tenant wants, social housing (if eligible), positive reference, some money.

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A j 23rd December, 2017 @ 21:59

My tenant left 3 years ago, with 4mths unpaid rent and £1000’s worth of repair costs and he has now put in a court claim because I forgot to protect his deposit. Stupidly as a first time landlord I forgot to do it.

Deposit was £1200.00 claim £6500.

Do I stand a chance to resolving this matter in anyway.. and how?

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David 24th December, 2017 @ 01:06

@AJ

It does depend on what you mean by resolve?

If you mean can you pay less, most certainly YES.

First of all we need to determine some facts of the matter, do not give to many personal details on this public blog, change dates but keep number of months same.

The sanctions are now BETWEEN 1x and 3x the deposit PER TENANCY, there is case law that you can refer to that reminds the Judge that they are entitled to apply as little as 1x the amount.

Costs will depend how the action is bought, the claim companies try to use a track that allows them to seek costs, but I have successfully got that thrown out and their own Barrister forced to agree.

£6500 is a strange amount, on a deposit of £1200 the sanction would be a max of £3600 per tenancy, yet if it was that kind of tenant one wonders if the tenancy was allowed to expire and became a Statutory Periodic (i.e. the tenant stayed beyond the expiry of the tenancy and no new agreement was signed. Alternatively, the tenant could have signed a new tenancy as opposed to a renewal of original agreement.

I would have thought that if this was a money grab the opening gambit would have been to ask for at least £7200.

On the other hand if it was a claims company they do not usually mention money in the first instance, the first thing they try to get you to do it admit liability.

So either you are only providing minimal information, which is not good because it makes it hard for me to help you.

It may be wise for you to communicate any details of your case by private message via the forum of this site, join it using the "Landlord Forum" at the top of the page.

then activate your account by clicking on the email link it sends you, then login to the forum and once logged in follow the link below to find my profile

http://bit.ly/davidpip

Please clarify whether at this stage it is the tenant, a solicitor or a claim company writing to you, also what communications have been had thus far.

You also have the option to issue proceedings against this tenant, this can recover you damages and lost rent, giving him a CCJ which can be escalated to the High Court. Now whilst it is true to say that deadbeat tenants usually have nothing to go after, if he wants to bring an action you can file yours as a counter claim and have them heard together. Important to keep your claim under £10k so it remains in the small claims track.

Depending on your answers, I have different suggestions, if it is just the tenant then the page below may help you, but before you contact them I would like to know the basis for the amount.

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

As this person owes rent and is contractually liable for damages is quite feasible to put them off claiming, but the approach will depend on the circumstances.

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Bee 2nd January, 2018 @ 16:46

Hi
yes you have a chance but you will have to pay a solicitor to handle the case for you.
i made a silly error like that myself they wanted 3x and due to similar issues with tenates and proof they were bad tenantes i ended up paying alot less but saying you forgot alone won't cut it i'm afriad.
worth fighting don't give up without a fight

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Chuddy 3rd January, 2018 @ 07:51

I have posted on the Site before.
I paid £3,500 Deposit In July 2017, the Deposit was not Protected , I did ask my Landlord about this as I did not receive any Information from Deposit protection Companies as I have done In the Past. He emailled me back stating he did not have to put It In a DPS , he had his own Deposit Scheme.

When we agreed to take on the Tennancy there was a Considerable number of repairs that needed completing , the Landlord said all the Repairs to the Property would be done within 2 weeks, 6 months on none of the repairs have been done. I have numerous emails from the landlord with regards to Tradesman attending the house to do the work required but no one has ever turned up.

I am very annoyed that we are paying a considerable amount of money for a house that has not been maintained at all and the promises given by the Landlord have not been kept, I decided to hold back rent payments. He has now Issued a Section 8 Notice, I am not going easily the rent arrears are less than 2 months, so I am going to let him to me to Court so I can defend the Section 8.

I am getting threatening emails stating If I do not leave, he will use whatever means he thinks fit.

He told me he owned the Property , I have found out he does not and he Is a Residential Agent, If I got to Court for him not protecting the Deposit, Is the Landlord also Liable.

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John 8819 3rd January, 2018 @ 12:37

Hi There,

Just looking for a bit of advice. we moved into a property in april 2016. the landlord has just this property that he used to live in but has moved to another property and rents this one out. we paid a deposit to a letting agent and a 6 month tenancy agreement was signed. the landlord wanted to use them for 6 months. after 6 months the landlord stopped using the letting agent and asked us to pay the rent directly to him. I requested the deposit to be paid back to me on the assumption the landlord would want it to protect himself alongside a new tenancy agreement with him.

He never contacted us about the deposit or a new tenancy agreement.

In oct 2017 because he was in contact with his mortgage company over a new rate they advised him he needed a tenancy agreement and deposit. In nov 2017 we paid him the deposit and he said it was at his discretion if he put it into a protection scheme. i advised him it was a legal requirement. he came back and said he would want to keep it in his bank account and would use the the insured scheme but wanted us to pay the charge for this, we refused. was that the right thing to do? i advised him of the free custodial scheme which he aid he would look into. he has not got back to us.

My questions is if he doesn't protect the deposit, are we covered as he said we should have never requested the deposit back from the letting agent.

Also are we covered because he offered to protect it in the insured scheme but we refused because he was going to charge us for it?

i am worried that at the end of the tenancy he will be very difficult in paying the deposit back.

Thanks

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David 3rd January, 2018 @ 12:51

@Chuddy

I saw your post before and replied to it in response 464, with a suggested means of contact, but you have not engaged since.

The Landlord is the person responsible, they can in turn hold the agent responsible for their failure to protect the deposit and any consequential losses (such as legal fees) that the Landlord may suffer.

It is a legal requirement that the Landlord's name be listed in the tenancy agreement, they can use the agent's address as an address for service, but that should be stated as such in the agreement for legal reasons.

First thing to do is pay £3 on the Land Registry website and find the name (and maybe the address) of the real Landlord. Then we can write to them.

I would take the behaviour of this agent as harassment, you need to document every event, ideally as it happens

You have the right to change the locks and considering the behaviour you have been subjected to I would do that, keep the old one to restore at the end of the tenancy. All you need is a Cylinder, cost around £15 at B&Q or £3 on eBay. Is very simple to change, check on YouTube.

If the Landlord or their agent breaks in then you call the Police and have them arrested.

So what he thinks fit is a load of nonsense, in the UK you have the first six months secure before legal proceedings can be taken without cause. Then you have any additional security offered by the tenancy agreement itself. e.g. if the agreement is for 12 months and there is no break clause or legally valid termination clause (a lot of landlords put clauses in that are not enforceable), then you have until that date.

Even after the 12 months you can remain in the property and the a new tenancy will be formed by law, called a Statutory Periodic Tenancy (SPT).

If a Landlord (not an agent) wants to evict you they have to follow strict legal procedures and an obstreperous tenant can even frustrate these, but sometimes it is better to just leave. However, I do not think that this is one of those times because at this stage you are not dealing with the Landlord you are dealing with an agent.

Under the law you are entitled to request the details of the Landlord (assuming they have not already been provided), you can even legally withhold rent until they have been provided but you must pay it when the details have been provided. You must ask for the address for service.

The agent may give you the landlords name and the agents address, in which case you write a simple letter before action saying that you wish to speak to them directly as the agent has been abusive and is harassing you, as I offered previously I can draft you such a letter via the forum private messaging. The letter will be in accordance with CPR which means you can instigate proceedings thereafter without further notice.

As I advised before it is CRITICAL that you involve the Council in any issue of repairs so that they issue an Improvement Notice, failure to carry out repairs thereafter can lead to heavy fines and in some circumstances even stronger action. So call the Council NOW!

The two methods of eviction for tenants with an Assured Shorthold Tenancy, both cost a lot of money in Court fees to enforce which is why you should ignore any idle threats about whatever an agent thinks is fit.

Method 1 - NO FAULT EVICTION

This which means you did not do anything wrong, they just want you out, this is known as a Section 21 and must give you two clear months notice. They have to give you the notice on a prescribed Government form (usually 6a), that form has to be served properly in accordance with the Housing Act. The notice can be dismissed for a lot of reasons including; failure to protect a deposit within 30 days, failure to issue prescribed information regarding deposit protection within 30 days, no EPC, no Gas Safety or no How to rent document. The rejection of the form can be done a week before the 2 month notice expires, this is best done via the Court but definitely by recorded means.

More details on S21 are here:

http://www.propertyinvestmentproject.co.uk/blog/section-21-notice-of-possession-order-form/

Method 2 - EVICTION with FAULT(s)

This is known as Section 8, there are mandatory reasons such as being more than 2 months in arrears and discretionary reasons such as have paid rent late repeatedly. Judges want strict (usually independent) evidence of the alleged faults and if the tenant can show that they are somehow reformed they are often given another chance.

The notice for this is shorter but it can take months to get so it works out about the same. More details are here:

http://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/

It is important that you get the evidence for the things you are alleging, for example emails where the agent says he does not have to protect the deposit, if these were done verbally I can draft you some emails that will help you get such confirmation.

As I said previously I did respond to you before, the message is below for your convenience, if you require further help please do it via the forum as your case is live and it may prejudice your position to provide too much detail here.

Message 464

@Chuddy

No he cannot issue S8 until you are 2 months in arrears, you need to report the repairs to the Local Council Housing to prevent revenge eviction against S21.

You should ask them if they have historical reports for this Landlord.
£3,500 wow you are quids in, the repairs will look bad on him if it gets to Court.

Do not worry, it probably will not get that far.

I can write you a "letter before action" that will make him take this seriously, but I suggest we do it via the forum in case it comes up if he googles content of letter.

Use the landlord forum link at the top of this page and once joined send me a private message via this link

bit.ly/davidpip

He is facing £10,500 plus legal fees, your case sounds very straightforward, he had an obligation to protect and failed to do so. His denials simply serve as evidence against him.

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David 3rd January, 2018 @ 15:01

@John 8819

The position is quite simple, whether there is an agent involved or not the Landlord is liable for making sure the deposit is protected continuously for as long as your money has been held as a deposit. Also liable for such periods even if they return the deposit.

One of the reasons that the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 was enacted was because Landlords or their agents were not informing tenants where their deposit was or how to get it back after the tenancy. Note that it is the deposit protection company that decides what you get back, the Landlord would need to make a claim to them, they would need to provide evidence (differences in inventories signed by yourself) and you would have input before any decision was made.

So not only is it a legal requirement that the deposit it protected within 30 days but also that the Prescribed Information relating to the protection of the deposit is also provided within 30 days. EITHER can trigger a sanction payable to you of between 1x and 3x the deposit, PLUS the return of the original deposit.

Agents tend to use insurance backed schemes, these usually provide a few months overlap but require that the Landlord is a client.

In October 2015 the Deregulation Act came into force, this put additional requirements to provide an EPC, Gas Safety Certificate and the Government How to Rent booklet. Failure to provide these will block an eviction notice and for Gas Safety may lead to fines.

Dereg Act also gave Landlords a break in that it allowed them some consideration if they originally protected their deposit under one AST and it REMAINED protected when the tenancy became an SPT. However, if they did NOT originally protect it or get their own protection when Agent kicked to the curb, then they will have no such consideration.

You did not say whether your initial six month tenancy was Renewed, Replaced, Extended or none of these, i.e. you just stayed in the property and an SPT was create by statute.

The sanctions apply for each tenancy and even after Dereg act to SPT's if original was not protected propertly.

Having a crap agent, not understanding the law, thinking you could get this that or the other are null defences under the legislation.

The question comes to how long do you want to stay in the property, I get the impression you are thinking of leaving. If not and if the deposit is indeed unprotected then you would be wise to ask for a new tenancy agreement to give you more security (for say six months), if that tenancy is also not protected then it adds more sanctions. This does not mean you need to take action, this is all leverage for negotiation in the event of any dispute.

For now check on the three links below, put the relevant details in, try different dates, the original date you moved in, the date of any new tenancy, and dates since you discussed the matter.

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep1

Feel free to contact me via the forum if you wish to discuss anything confidentially (details given in previous post).

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David 3rd January, 2018 @ 15:03

@John 8819

http://bit.ly/chkdep3

for that last one

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Chuddy 4th January, 2018 @ 05:28

Hi David,

Thank you for your response.

I am undergoing Hospital Treatment at the moment and all this stress Is not helping.

We have a AST tennancy Agreement, for a Period of 3 years, with a Break Clause after 12 Months.

The Agent has stated on the Tennancy Agreement that the Deposit would be held by the DPS.???
I have checked all Deposit Schemes and It Is not held with any. And he emailed and told me Verbally that It Is held In his own Deposit Scheme. The Registered owner of the Property Is not named on the Tennancy Agreement.

I was not given a EPC, Gas Certificate or How To Rent Booklet .

He gave us a Section 8 Notice to Vacate the Property by 11/01/18, as this Is when the Rent Is next Due. 2 weeks notice Is unrealistic as I was In Hospital Last week and with the Notice being given over the Christmas Period It Is not a good time to look for another Property.

I have no Intention of moving out on that Date, and he will have to take me to Court for a pocession Order.

He has now advertised the Property To Let Immediately, so has no Intention of doing any Repairs which have not been done for over 2 years. It seems once again he Is going to blame Previous Tennants as to the Condition of the Property, promise everything will be rectified and take another Deposit.

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mr.spacemaker 4th January, 2018 @ 09:01

@chuddy

Sounds very much like an open and shut case. Your landlord is screwed, which is very unfortunate for him as it very much sounds like it is the agent that is at fault.

You are holding all the cards so you have nothing to worry about.

Follow David's advice - change the locks, speak to housing services at the council immediately for an inspection regarding the repairs, and send a letter before action.

If you want to stay in the property, the ultimate goal of this should be to initiate direct contact with the landlord and assuming he is honest and decent (unlike the agent) negotiate a better deal with him and get rid of the agent. Obviously you also want the repairs started immediately and a new tenancy with protected deposit and all the rest.

The second the landlord speaks with a solicitor, the council, or citizen's advice, they will realise that the section 8 notice is completely invalid, and that section 21 is not possible without returning your entire deposit. Even then they will still be liable for the sanction, should you wish to pursue.

Good luck, this guy sounds like exactly the kind of person who has messed everything up for honest landlords!!!

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IfOnly 4th January, 2018 @ 10:33

Hi, question for David.

I mucked up! I didn't protect a deposit made in Aug2007. I was a new landlord unaware etc. No excuse though I should have since deposited it, I didn't. My tenant has left and after requesting their deposit back, i responded. I went through damage and doors missing etc that were above and beyond wear&tear. Out of there deposit there was a small amount to return. It seems that they have took advice and are requesting DPS number and full deposit back.
They have been good tenants and I have been a good landlord ever their tenancy. However there are costs to me as a landlord as explained regarding damage etc.
A new tenant has moved in who has paid their deposit and I have put that in A DPS scheme.

I was thinking of putting previous tenants deposit in the scheme (better late than never) and go through necessary procedure with DPS to retain some of deposit for repairs. I can't, the new tenant has a deposit placed under that address! Help and advice if yo are able........

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David 5th January, 2018 @ 16:24

@IfOnly

Can you please clarify whether there has been one continuous AST since the 2007 start date, or was it extended, replaced, renewed or just became Statutory.

I will need some dates, these old tenancies can be the most expensive.

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IfOnly 8th January, 2018 @ 14:03

Thanks for your response. I have decided to repay the deposit in full.

Regards

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David 8th January, 2018 @ 14:11

@IfOnly

The reason I asked you for dates is that might be a mistake.

This is particularly true for old tenancies because there have been amnesties you have missed.

You may still be forced to enter the deposit amount again into a scheme.

It also does not remove your liability to sanctions.

As pointed out you could have liability PER tenancy so I need to know whether one long tenancy or several smaller ones

I ask you questions for a reason, it could take 20,000 words to point out all the various options, case law and acts.

If you wish to answer the questions I would be pleased to advise otherwise good luck and remember the tenant can bring action at anytime over next 6 years.

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desperatetenant 11th January, 2018 @ 14:44

Hi David

Just looking for some advice re deposit protection.

I moved into a flat in October 2016 and the letting agent only protected two-thirds of my deposit (we're on an AST). We renewed in early October 2017 and at the end of November 2017 we realised that they had only protected the two-thirds. When we pointed this out they then protected the other third and only sent us the second Prescribed Info once we chased, which was more than 30 days late.

Do you know what our rights are as one-third of the deposit wasn't protected for 13months? Can they serve us a Section 21 notice as it's now finally all protected and we have the PI?

Thanks

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David 11th January, 2018 @ 15:15

@desperatetenant

You do not say WHY they are serving the S21, if they renewed the agreement in October 2017 for a year and the tenancy does not have a break clause, then the S21 can be dismissed because the contract itself gives the security of tenure.

S21 is a no fault eviction process, often misused for rent arrears etc (because it is easier), if there were rent arrears then they should have served a Section 8 notice which is where tenants ARE at fault.

If a Landlord or Agent issues a S21 then you must realise that it is only a matter of time before you are out, so sometimes it is better to agree a settlement which includes departure on an agreed date and a positive reference.

The failure to protect the deposit IN FULL counts as a failure with regard to the sanctions payable to you of between 1x and 3x the deposit, the protection of the shortfall and new PI outside the 30 days is confirmation of the failure.

However, the legislation that allows a S21 to be thrown out is about the state of play AT THE START OF THE PROCEEDINGS, S21 is an accelerated procedure and starts with the issue and filing of the S21 notice. So on that date, it seems to me the deposit WAS protected in full.

There are 3 other reasons the S21 can be dismissed

1. Failure to issue EPC at the very beginning (before really) of the tenancy and then every 5 years.

2. Failure to issue the "How to Rent" document, this must be reserved before the S21 if the Government issues a new version in the time between the original tenancy and the S21.

3. Failure to provide a valid Gas Safety certificate for the property (annual requirement).

I do not have enough information from your post.

Other things to check are that the Landlord is listed in the tenancy agreement (not the agent) check this by doing a £3 check of the property at the Land Registry website.

Note if the Landlord is not correctly listed you may temporarily hold rent (which must be paid later) until they provide the Landlord details, they ARE allowed to give you the Landlords name and their own address as the address for service.

Now the way I would play this is to inform the Landlord directly (getting address from Land Registry or Tenancy agreement) or the agents address if they have confirmed it is the address for service.

I would say that you are about to issue a letter before breach of Section 213-S15 of Housing Act but you are open to resolving things amicably and would like to discuss the matter on the phone with the Landlord.

The agent may try to avoid this in which case you would ask for a written confirmation from the Landlord that they want the Agent to negotiate this matter, despite the obvious conflict of interest.

Typically you would get a Landlord to offer 1x the deposit (the minimum the Court is allowed to give as a sanction), plus the return of your deposit plus a positive reference.

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desperatetenant 11th January, 2018 @ 15:55

@David

Thanks for the helpful response. They haven't issued a section21 notice, I was just worried that they will so was checking my rights.

I have already checked and the landlord details on the TA are the same as the land registry details. Our difficulty though is that the letting agents have told me that the property is part owned by them and the landlord (who I think works for the letting agents) but it seems that for all issues the "landlord" has the final say and the LA don't support us in any way.

Thanks again for your response, it's good to know that they're very much still at fault for not protecting the deposit in full or sending the PI for the second part within 30 days.

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David 11th January, 2018 @ 16:27

@desperatetenant

So not quite so desperate!

The owner is who is registered on the deed at the Land Registry, any rights, claim or charge on the property would also need to be filed at the land registry.

The absence of that would suggest that the agent is bullshitting.

I have had a few cases where the agent has tried to suggest that they own the property or are the Landlord, it seems to be a common thing for the avoidance of tax.

Might be worth an enquiry to HMRC just to clarify whether they think the Landlord is the person named as the Landlord or the Agent.

Do a Companies House search of agent too, the Landlord owner may be a shareholder of the agent or "person with significant control" but that does not make a limited company the owner of the property.

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Kat 19th January, 2018 @ 18:20

I have just one property with very good tenants . I am now ready to sell and have advised tenants that I will try and sell to another landlord. I am worried that although I have kept the deposit in the account rent is paid into I have never secured it. I have no intention to with hold it once property is sold but am worried that I will get in to trouble having not secured it. Is it too late to do this now .

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David 19th January, 2018 @ 20:09

@Kat

There is no avoiding this, you need to protect the deposit as soon as you become aware, that means NOW! The buyers Solicitor will check, especially if you sell with tenant remaining in property.

It will help your defence in the event of a claim, could be difference between 1x and 3x penalty.

I think you should come clean with the tenant, you have to serve them with the Prescribed Information paperwork anyway.

Some Landlords pretend that they have moved it from one deposit company to another but all can be checked online by a savvy tenant.

So maybe you offer the tenant a settlement agreement, you agree to try to sell the property without vacant possession, you agree to give them say £300 and a positive reference. They agree to accept that payment as full and final settlement on any legal claim regarding the property including S213-215 of Housing Act.

See this page for advice on negotiation with tenant

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

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Lolly 23rd January, 2018 @ 20:22

Hi there I wonder if anyone can give me a bit of advise as I’m losibg the will to live my my previous letting agents!
We left a property at the end of November 17 which we had lived in since August 2006. No issues with damage etc we were told our deposit would be in our bank in a couple of weeks. 8 weeks on and despite numerous phone calls and emails promising me payment would be made ASAP, still nothing, They never return my calls and I’m constantly chasing them. I assumed my deposit wasn’t protected as it was paid before 2007 but from what I have read am I right in thinking that actually it should have been?
Any advise would be gratefully received!

Thanks in advance

Lolly

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David 24th January, 2018 @ 00:12

@Lolly

Yes the deposit should have been protected under S213-5 of the Housing Act 2004, the failure to protect for such a long period and the failure to return the deposit will almost guarantee a sanction of 3x the deposit and this is PER tenancy.

So if you had 3 AST's over that period and then your tenancy became SPT your Landlord would be looking at 4 x3x the deposit.

Forget the agent, it is the Landlord that is liable, he can then take legal action against the Agent if they had promised to do it (full service agents usually do).

You can find the name of the Landlord from your tenancy agreement or go to the Land registry site and pay £3 for the deeds to the property.

For now check these links to see if your deposit was protected.

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

Even if they protected the deposit, the failure to issue the PI also triggers the sanctions but not in addition to the sanctions for failure to protect.

You could use a claim company but they will take 33% of your money, it is such an open and shut case, you can do it yourself, but I always advise offering a settlement, if they refuse it then they can be made to pay your legal costs.

I can write you a letter for the Landlord offering a settlement depending on how bad it is and guide you though the paperwork if they do not settle. I have acted for tenants where there was an Agent involved and the Landlord was so litigious that the agent paid up in full before we even needed to negotiate. Do not waste any more time on the agent.

I would suggest you contact me via the forum for privacy, scroll to the top of the page and click on the Landlord Forum link, join the forum site, then click on the email confirmation and log back into the Landlord forum site, when you have logged in click on the link below and send me a private message with details of he number of tenancies. As things stand I think you are looking at 3x the deposit plus the return of the deposit itself as a minimum (the landlord would be wise to settle because of the blatant failure and he will only end up paying yours and his own legal fees if he does not settle).

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David 24th January, 2018 @ 00:13

@Lolly

Sorry forgot to paste my forum profile link, here it is

http://bit.ly/davidpip

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Hab 1st February, 2018 @ 10:55

I wonder if anyone can provide some advise, if i have provided an AST without deposit can i still issue section 21 after the AST has run out?

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David 1st February, 2018 @ 11:10

@Hab

If your AST has expired a new Statutory Periodic Tenancy has been created by statute.

As you did not protect the original deposit it is deemed that you did not protect this deposit unless you are in the first 30 days of expiry in which case you should immediately protect the deposit and issue the prescribed information.

To be honest you need to protect the deposit as soon as possible anyway as this will mitigate your loss in sanctions that are awarded.

Right now you are facing a sanction of up to 3x the deposit for EACH of these tenancies PLUS the return of the deposit.

Your S21 would be struck out if you tried to issue it, the tenant will take advice from their Council, maybe Shelter charity for homeless or just a bloke in a pub.

They will be told to check the deposit situation online but also to check the following:

1. That you provided an Energy Performance Certificate prior to the commencement of the tenancy. (these are often shown on sites like Rightmove) they are valid for 5 years.

2. That you provided a valid and current Gas Safety Certificate and that there is a valid one at the time the S21 is issued.

3. That you provided a copy of the Government "how to rent" document at the beginning of the tenancy AND now that the tenancy has passed to be an SPT that you provide a copy of the current one if it has change (WHICH IT DID IN JANUARY 2018).

If you failed to protect the deposit within 30 days it goes without saying that you failed to issue the PI on the original tenancy. However, you must also issue the PI for when you did/do protect the deposit, S21 in invalid without it.

The best way to proceed is to get in front of this, protect your deposit and try to negotiate a settlement with the tenant, how to go about this is explained on the page below.

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

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Silly Mistake 7th February, 2018 @ 16:37

Problem tenants is an understatement.. tenants left in August with five months rent arrears. while I hear I'm going to pay, i will call you back, its just not happening. They obviously have left and moved on leaving a trail of debt, I forgot to register their deposit (yes i know) so in that situation what chances do i have legally of recovering the debt. Their parents are guarantors again, how far can i push this to recover the bill. From beginning i have said to both tenants and parents that i will not add any interest for late payment as that will not help them clear the 5k bill, hoping that would give some incentive to speed things along. I am aware that not having registered the deposit really doesn't help and they are full of the ways to miss and avoid any responsibility for bills, as the numerous summons to court are posted to the address by various companies. I guess if the money is never to be seen i just need to draw a line under it.

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David 7th February, 2018 @ 19:47

@SillyMistake

I did answer this, have they actually started a claim against you for sanctions?

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Silly Mistake 7th February, 2018 @ 21:30

@David
Thank you, Sorry I couldn't find the previous post. No they haven't started any claim for sanctions that I am aware of.
Thank you

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David 7th February, 2018 @ 23:13

@SillyMistake

This was my previous reply, which I have updated slightly

You are in a better position than most, you have guarantors, but as always with debt you have to make sure they have something to lose before you take enforcement action.

You can go after the guarantors, check their address on Zoopla first to figure out when it was last sold, if it has not been sold since they signed as guarantors. If not then spend £3 to get copy of title from Land Registry site to determine if they are owners, i.e. they have something to lose. If they are local go their house, see if they have cars worth over £2000 plus your debt.

Then you just write them a letter before action saying that your attempts to get payment of arrears from their offspring have failed and you are now putting them on notice that if payment is not made or agreement entered into within 14 days then you will be proceeding to take them to Court.

You are under no obligation to accept long payment terms, the max I would give them is 3 months with one third per month. Debt collectors prefer 50% down to prevent action with 25% for the following two months.

Your agreement not to charge interest was subject to them servicing the debt, they have not made any attempt to do so, so you can put it in your claim. In these types of Court claim interest is calculated daily but your tenancy agreement may have stated different. From Aug 1st a reasonable level of 4% above BOE base rate means you can add £121 to the debt, but you could just as well use your banks rate.

If I were you I would see the tenancy deposit thing as entirely separate, look at the pages below and the comments I have made, basically if you are a novice Landlord you might get away with a 1x deposit sanction.

If the tenant has the audacity to raise deposit issue here or on Negotiation page and I will walk you through the negotiation.

In your position I would see them an entirely different things, the fact is that the parents are more likely to have the money or to have leverage. So going after them makes the most sense.

You can raise in the small claims Court as it is under £10k (naming all four of them as defendants or just the parents), you will not get legal costs but you can ask the Court to consider the interest as it is part of the debt as well as the Court fee and various allowed costs.

Usually the very real threat of a CCJ will scare the parents into paying, if not your tenants, but if not you will have a CCJ which you can enforce, but it is only worth doing so if they have the money.

Sometimes sending completed Court papers that you are about to file does the trick, I would send these as a final letter before action. It will show the Court you have them every opportunity to settle.

This are the tenancy deposit negotiation pages:

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

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Salda 8th February, 2018 @ 10:23

Hi. When my previous tenant moved out he was very desperate to have his deposit back asap but it took him about 10 days to receive from DPS. In the meantime his friend was very desperate to move in. So it was stressful time for all of us. As a result I asked current tenant if he would prefer me keeping the deposit instead and he said fine. I sent him confirmation email to cover my back and kept it in my bank. As things do not go well with this tenant I now protected the deposit. However he now threatens to take legal action against me! Where do I stand? Thanks

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David 8th February, 2018 @ 15:07

@Salda

Sorry to deliver bad news

The S213 of the Housing Act recognises the dynamics of the Landlord Tenant relationship, thus it specifically apples despite any agreement.

(9)The provisions of this section apply despite any agreement to the contrary.

https://www.legislation.gov.uk/ukpga/2004/34/section/213

It might help you in mitigation and it is worth pointing out case law that confirms the Judge may choose to apply only 1x sanction at their discretion.

This is the case law I was referring to

http://www.bailii.org/ew/cases/EWHC/QB/2014/4729.html

Considering this, the next stage is to negotiate, ideally before they involve a claims company who will only be interested in demanding the maximum and then trying to get their fees. (If that happens I can help you with that).

The owner of this site has prepared the following page to help you with negotiation, the page is this one:

http://www.propertyinvestmentproject.co.uk/blog/tenant-threatening-legal-action-tenancy-deposit/

If your case is complicated and you want to contact me directly you can do so by joining the Landlord forum link above, when you have confirmed your email and then log back into the Landlord forum site you can follow this link to send me a PM to discuss confidential aspects you might not want to publish in case they identify you.

bit.ly/davidpip

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Hab 8th February, 2018 @ 17:00

@David,

Thanks for the reply, but we did an AST without any deposit. So We created and made an AST contract but did not take any deposit. How can the deposit scheme still apply?

Yes we have give EPC , rent guide and gas saftey certificate then issued section 21.

Thanks

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David 8th February, 2018 @ 17:49

@Hab

Sorry I thought you meant without deposit protection.

If not deposit was taken then clearly there is nothing to protect.

You are fine and you seem to have done all the other blockers to an S21.

Sorry for my misreading that.

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