I Haven’t Protected My Tenant’s 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 your tenant(s) deposit, 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. Just to clarify, it is NOT a legal requirement to take a security deposit, so this legislation only applies to landlords that do take a deposit (which quite frankly is most).

When a deposit is protected the tenant, and anyone who provided funds towards the deposit, must be given the Deposit Protection Certificate and Prescribed Information for Tenants provided by the Deposit Protection Scheme which you have used. You have just 30 days from the date that the deposit was given to you in which to do this otherwise you have broken the law. 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 information given as above, 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!

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.

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:

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

Putting it bluntly, you have broken the law and yes, this will have 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 typically the most efficient method of removing a rogue tenant).
How do I get rid of a tenant without serving a Section 21?

The latter consequence might leave you scratching your head, because now you might be wondering, “how do I get rid of a tenant if I haven’t protected the deposit and don’t have grounds for eviction (so essentially can’t serve a Section 8 notice)?”

This is the scary and heart-dropping reality…

The simple answer is you can’t. Serving a Section 21 is the only legal method of removing a tenant, known as “the no fault eviction process” because you do not need any grounds and often do not even need to go to Court if you have served a valid Notice. This is the main reason why you MUST COMPLY WITH THE TENANCY DEPOSIT LEGISLATION. Sorry for shouting, but it needs to be taken seriously.

However, in the event you are caught in this dilemma, you do have limited options…

  • In reality, many tenants won’t cause a fuss- if you tell them you need the property back, they’re usually compliant (assuming you give plenty of notice and have a relatively good relationship with them). You might just get away with it.
  • Assuming they do cause a fuss, offer to pay the tenant “compensation” to leave.
  • Talk to the tenant and try to come to an agreement. At this point, it might be worth your time to check out a list of 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 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!

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72 Comments- join the conversation...

Showing 22 - 72 comments (out of 72)
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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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Chris 19th January, 2015 @ 22:57

I have a similar situation in that I didn't put the deposit into a deposit scheme, however, I want my tenants to stay. They have signed a 3 year lease but my wife and I have recently separated. My wife told the tenants this and they got spooked and have already paid a deposit on another premises, not paid this months rent but have said that they intend to instead use the deposit for this months rent. They have also told me that they have had problems in the house that they have only now made me aware and I am sure some are fictitious. They have never contacted me about any problems. My question is can they quit the contract and is it worth me pursuing. I have pasted their last email below.

*************************************************
Hi again Chris

When we first viewed the house we were in a very similar situation with our landlords as we are in now. An amicable split turns into a war and we are left in limbo while its decided what is going to happen to the house. We acted proactively to find ourselves other accommodation which is when we found your house. And if you remember you wanted us to sign early because the house you was going to rent for yourself wanted you to move in earlier than agreed and we had by that time already secured removal team for 16th november and couldn't alter it. Because you moved early we in effect paid for a week we wasn't even living in this property.

It is common practice in our experience, that once you have found a property you leave a deposit to secure if both parties are happy, and then you arrange to pay 1 month advance rent when you sign the tenancy agreement. When we viewed there was a lot of work to be completed.Your assurance that various jobs would be completed seemed genuine enough. Whilst some of these jobs were indeed done (Eg covering up damp with paint or chemical means instead of repairing it correctly) others were not. (Eg electricity supply to workshop).

As you may be aware you don't see faults in a property until you have lived there for a while. Some faults as tenants we of course repair ourself such as dribbling taps etc , minor problems not worth bothering a landlord with including the leaking shower that we had to reseal the base of. We had the shower looked at after the panel exploded on Christmas eve, apparently the base wasn't fitted correctly and the wrong sealants were used so the whole shower drainage system needs overhauling as does the tiled shower floor.

Other things like the missing garden fence you have been promising to replace for over a year and haven't done even though you have been paid for it from the insurance company. The painting of the external part of the house that you was said you were going to do this summer and never did, cleaning of all the roof guttering to avoid leaks and blockages that you haven't done. The broken window handle in the back bedroom that was never fixed,the one that comes off in your hand, the same as it was when you lived here. As this is a means of an escape during a fire this is a legal requirement that as a landlord you should have already been aware of and repaired before we moved in, the cracked glass that lets in water in the sun room the same as it was when you lived here, the warped back doors that are hard to open or close the same as it was when you was here and then there is the damp and mould issues In the down stairs toilet and in the sun room on the lower wall next to the back door and the water ingress on the top of the stairs near the top corner of the roof that allows damp to come through every time it rains and the list goes on. We have tried to call you on more than one occasion about these things but never get an answer. Even with texts, you don't answer. It seems our only means to contact you just recently is via email but the law states that a landlord must be contactable in an emergency by his tenants.

Whilst we had a gas safety certificate from yourselves it was your responsibility to make sure the electrical system was not likely to endanger anyone either.
After we smelt smoke and burning plastic coming from the area of the consumer unit we called emergency number of electric supplier and they came out as an emergency to assess. They discovered that the wiring to the consumer unit was faulty due to a poor installation and the use of white plastic waste pipe and blue electrical tape used to cover up electrical connection joints had melted. It was in their opinion that the electrician that left it in that state was not a N.I.C.E.I.C approved qualified contractor as required by law and they took pictures of the wiring to consult their legal department as they wasn't happy and believed that the consumer unit may of been tampered with or the wiring tampered with in some way without their knowledge as they could not see any other reason why it would have been repaired in such a dangerous manner. Please feel free to call them to confirm this. See attached photograph.

We paid out of our own pocket to get the meter cabling to the unit rewired as normally this would have been covered under your landlords insurance but as we discovered you are not a registered landlord and have not told your mortgage company you have moved out or are indeed subletting your property, so your buildings insurance is most probably null and void too according to the legal advice that we have had. We was also told that because you didn't tell your mortgage provider that you are subletting your property as per your mortgage agreement will state that you need permission to do so this in itself is breach of terms and conditions and can be classed as mortgage fraud and may in fact completely void your mortgage.

As a landlord under the private tenancy order of 2006 you are legally required to supply us with a rent book within 28 days of tenancy agreement being signed and to put our returnable deposit of £525 in a registered government protected deposit scheme and supply us of details of which scheme you have used. This hasn't been done. And Also according to our legal advice the tenancy agreement we have just signed will also be void because using a photocopy and altering the information on it as you have done is also against the tenancy agreement.

Having no terms and conditions on the rear of the agreement is breach of the tenancy act and even if the agreement wasn't photocopied it would still be void because you have used a shorthold tenancy agreement and not a fixed term agreement which you legally need for any tenancy that runs for over 12 months as the shorthold tenancy you have supplied us would only be legal on a month to month basis on any contract over 12 months, and by law we have to give you 1 months notice which we have done. So as you can see either way the contract we have is void due to your own actions.
No where on the contract does it say we have to find you another tenant if we leave either!

The refundable deposit of £525 we paid you when we moved in we are going to let you keep for any monies you believe you are due or towards any redecoration you wish to do prior to putting the house up for re sale. As stated in previous emails your keys will be handed over at the end of the month as per our legal requirement. No further emails from you will be answered by us as as far as we as tenants are concerned this matter is now at an end.

image.jpeg

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lyn 21st February, 2015 @ 17:00

is it law to put deposit money into a tenancy protection.. scheme as my daughters landlady hasnt?? @ can landlady take money from deposit as rent was 3 days late & she relies on rent to pay her mortgage & is charging my daughter for charges from her mortgage company......shes paying rent not her mortgage help...............

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Eric Dickinson 21st February, 2015 @ 19:53

Lyn, with respect, did you even read the article? The entire article is about how it is a legal requirement for landlords to secure the deposit into a scheme.

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lyn 21st February, 2015 @ 20:40

chill your beans eric ........was miss imformed

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deb 10th March, 2015 @ 03:16

I moved in to my flat in2013 payed my deposit asked if it's payed into a deposit scheme the agency said yes but I still have not heard anything about where my deposit is an now they have given me a section 21 to move out the flat can they do this as I don't no where the deposit is an I've had a look on all gov sites u can look to see who your deposit scheme is with an come up that's it's not in any of them.

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Louise 11th March, 2015 @ 13:34

Hi, my tenants gave adequate notice and vacated the property. I returned their deposit in full paying it directly into their bank account within 10 days of their vacation. They are now suing me as I inadvertently did not register the deposit in any scheme whatsoever. I have no defence whatsoever I simply forgot to do. I am aware that one of the tenants actually works in property so knows the law and I have a feeling that this is a way of them earning easy money. As I say I have no defence but it seems somewhat harsh when I returned the deposit without quibble, and only after this was hit with a threat of being sued? Any suggestions would be gratefully and sincerely received. Thanks

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Mary 20th March, 2015 @ 09:59

Hi, i am looking for some advice if possible please? I am a tenant, i paid £725 deposit which was protected correctly etc, i have since moved out. I gave the 1 months notice as stated in the contract, i got the house proffessionally cleaned when leaving etc, yet the landlord has said they are keeping the whole of my deposit and will want more money for damages...which i dispute, i did not damage the house and feel they are claiming for little things that should be classed as wear and tear. They agreed to send pictures and prices of everything they need money for, which i agreed was ok. It has now been 28 days since i moved out and i have still not received anything to say how much money they want etc. Am i right in that they have 30 days after i left the property to contact in writing regarding payment of the deposit etc? If they fail to do so can i claim my full deposit back? Thank you in advance for any replies.

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Sue 8th April, 2015 @ 20:04

this is a massive faux par on my fault, my tenant has an AST on a private rental agreement, stating the rent per month and a deposit. I did honestly not give a clue about the secured deposit scheme. This is my own fault and can plead no excuses, my tenants deposit has been sitting in my bank account since the letting began in 2011. I now want to sell the property and gave her 11 weeks notice, she refused and said I am entitled to six months, I told her to go To CAB which she did and here we are, it's amazing how a tenant changes once you want your property back, so the question is where do I go from here, do I give her the deposit back, do I now secure it, she us being totally un co-operative ,won't answer messages or phone calls, can't believe the situation I'm now in, it seems I have no rights . Any help is much appreciated.

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David 15th April, 2015 @ 21:08

@Landlord

I would like to add some advice on this:

You list only three options

1) Return the deposit to your tenant.

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

3) Terminate the tenancy

1. Returning the deposit is not necessarily a good idea, my advice would be to say

"I am moving your deposit from an insured scheme to a custodial scheme for added protection. You should receive an email from the new company and I will need you give you some documents, can we do that Sunday."

You will still be liable but Court will take into account it has been protected which looks better than returning it and still protects you from damage to property.

2. Rather than letting a tenant prosecute, it is ALWAYS a good option to offer to settle to save court costs on both sides. If you show a Judge that you offered to settle and the tenant declined (thus wasting Court time) you can make the Judge aware when legal costs are awarded. The tenant may end up paying his own costs which at least saves you the money.

3. Terminating the tenancy is really bad advice, it is likely to piss them off and make them more likely to prosecute. It is a revenge action and will be seen as such. You only want to terminate a tenancy if the tenant is breaching agreement and/or damaging property.

Now a word of warning, your biggest Deposit Protection liability is when you use an Agent. Two big concerns:

a.) Your agent does not protect the deposit and you are still liable

b.) your deposit was protected with Mydeposits which is an insurance backed scheme and the agent was kicked out my mydeposits. In this situation the deposit must be re-protected but you can bet a dodgy agent will not have the cash to do it.

My advice is that if the agent protected at Mydeposits move it to a custodial scheme with the DPS or TDS.

I just got a tenant their deposit and all fees back from a dodgy agent, they had really bad reviews on All Agents and are already being investigated by Trading Standards. Came very close to taking Landlord to Court for what would have been a £7.5k payout. Just confirms that a £2k settlement is always better than hassle of going to Court. In this case we worked with Landlord's Lawyer who was going to sue agent for all costs.

BTW is worth you creating a dedicated post about dereg and mailing all your list.

At the end of March the Deregulation Bill became law, it allows Landlords who did not protect deposits taken before 6th April 2007 an Amnesty till 23rd June 2015 if the fixed term tenancy expired and the tenancy has not been renewed.

It also makes some changes to the Housing Act which help Landlords but also some legislation about revenge evictions!!

http://www.legislation.gov.uk/ukpga/2015/20/crossheading/housing-and-development/enacted

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The Landlord Avatar
The Landlord 17th April, 2015 @ 14:58

@David

Great comment, and I largely agree with everything you have said. I do need to update this blog post, but haven't got round to doing it. Thanks for the all useful information.

I was aware of the Deregulation Bill and I already have updated the main TDS related pages on my blog to reflect the changes.

Thanks again!

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Kash 24th May, 2015 @ 16:31

If landlord returns a deposit in cheque and the tenant did not cash it (lost the cheque or is travelling and cannot pick up the cheque) can the landlord still give s21 even though money is not practically yet in tenant hands?

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Benji 25th May, 2015 @ 22:56

@Kash,
Yes.

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Kash 26th May, 2015 @ 07:17

What would be the date of the s21? As clearly it is at least 5 days for cheques to be processed by the bank? Anyone knows if the court expects few days to be given for cashing the cheques?

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Benji 26th May, 2015 @ 09:56

Kash,
Date the cheque was received;
http://www.lawgazette.co.uk/53533.article

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frankie 1st June, 2015 @ 05:20

hi,

i had a tenancy from January-July 2014. I've since moved out, but didn't know at the time that the landlord hadn't put my deposit into a scheme. he kept half my deposit because i broke the lease. Is there anything I can do about that now, in 2015 since the tenancy is over and done with? I'd like the other half of my deposit back since he broke the law. Please advise!

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Caz 9th July, 2015 @ 20:23

I am a landlord and sometimes I protect deposit sometimes I don't. I'm not concerned with Tenants trying to take me to court (as I am known for returning letters to sender). I have in the past changed the locks on 3 tenants when they stopped paying rent (not due to rent protection). I was advised that it is my property and I have the right to do this and it is up to the tenant to sue me - which never happens because they never have the money to. If any tenant refuses to pay rent I just change the locks and put their belongings outside - simple.

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Krzysztof 24th July, 2015 @ 13:06

Hello. My tenant gave me a month notice in January and move out after 6 days. I return full deposit. 6 week later I receive a letter from court. Tenant demanding return a part of rent and expecting compensation for not protecting deposit. Tenant refuse negotiations. Any chance to avoid losing a case in court?

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David 24th July, 2015 @ 19:01

If the tenancy started after 2007 you might have had a chance.

The Housing Act is very clear and a Judge MUST grant 1 to 3 times the rent.

As you did not protect the deposit you clearly did not issue the Presecribed Information telling the tenant where the deposit was protected.

Normally this would mean at least 2x being charged, a Judge will take into consideration how many properties you have, how many tenancies you have had but NOT ignorance of the law.

The best thing you can do is offer them a months rent as a full and final settlement.

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David 24th July, 2015 @ 19:02

I mean BEFORE 2007

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Krzysztof 27th July, 2015 @ 10:04

Thanks for your answer, David.
Tenancy started in 2013. Unfortunately tenant refused any negotiations. Before I receive letter from court, tenant didn't write to me "a letter before action". Is that fact can help me avoid to pay tenant's legal costs?

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