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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95 Comments- join the conversation...

Showing 45 - 95 comments (out of 95)
The Landlord Avatar
The Landlord 18th October, 2014 @ 19:12


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.

Guest Avatar
Benji 19th October, 2014 @ 12:04

Probably a lodger look at this link;


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


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


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


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


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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.


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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.

Guest Avatar
David 15th April, 2015 @ 21:08


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!!


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


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


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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

Date the cheque was received;

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frankie 1st June, 2015 @ 05:20


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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Cak 30th July, 2015 @ 02:58

Do I have a case against my landlord/letting agent?
I paid the deposit on February 2014 and started my tenancy on September 14.
On December 2014 (9 months after i paid deposit) I received an email saying it was protected, but i have still not received a certificate and i am now 11 months into my 12 month contract, and 17 months after the deposit was paid.
I was not going to follow this up, but now the letting agency are attempting to charge unfair late penalty fees through a clause in our contract, so I feel I shouldn't give them any sympathy.

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David 1st August, 2015 @ 20:24


Just because he has started Court Action does NOT mean you can't contact him to negotiate a settlement.

You can ABSOLUTELY ask the court to consider the fact that the tenant did not contact you prior to taking action, it will probably help you and stop him getting all his costs.

Say sorry to the Court for having their time wasted on this matter, saying had the former tenant followed

You might even ask that the case be adjorned or dismised because he has not followed CPR (you will need to look up the rule (pre-action protocol)


Once you get to Court, say you are sorry for your ignorance of the law regarding deposits but the deposit was returned in good faith PRIOR to the action being commenced and that you feel the claim is vexatious.

You might come across a Judge that will just charge you 1x the deposit and you can even ask for your costs based on the fact that you would have settled without Court action had you been given the opportunity. This will balance out, they need to be real costs, you will need to show hours spent researching and you will never get more than 70% of what a Lawyer would have charged you. (Judges were lawyers once and they like to keep the profession employed).

Good Luck

Guest Avatar
David 1st August, 2015 @ 20:42


When will landlords and agents GET IT?

Late Penalty fees are NOT ALLOWED

Anything that says PENALTY can probably kicked out

The only thing they can charge is an ACTUAL cost, e.g. lost of interest, a proven charge by a mortgage company for their own late payment caused by your late payment.

Just because IDIOTS put UNFAIR clauses in contracts does NOT make them enforceable, common law comes first.

You need to download OFT356


Write to the agent and caution them that you refute their claim for late payment penalties as these are against Office Of Fair Trading Guidance.

You do NOT need to give them the exact details, you may withhold your last months rent if you have already paid a penalty

the OFT guidance is from page 22/25 of the pdf

3.45 It is unfair to impose excessive sanctions for a breach of contract. A term that requires the tenant to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the landlord is likely to be void as a penalty under common law. Other types of excessive sanction are considered in Chapter 4, Group 18(c).

3.46 We regard a requirement to pay unreasonable interest on arrears of rent, at a rate substantially above the clearing banks' base rates, as an unfair penalty. We regard the imposition of a fixed daily or monthly charge for overdue rent, and regardless of the amount due or the surrounding circumstances, as being penal rather than compensatory in nature, and unfair. Tenants would have to pay more than the cost of making up the deficit caused by their default.

And YES if they have not issued you with the Prescribed Information then you have a claim against the LANDLORD not the AGENT, they may sue the AGENT for their costs.

I would approach the Landlord and say that you do not want to have to claim against them but the Agent has been NASTY so you feel you must, however if they can bring pressure to bear on Agent to repay late payment fees and if the Landlord will provide you with a positive reference then you will consider not taking legal action for their failure to follow the Deposit Protection law.

You can always leave the agent a bad review on All Agents and get the Landlord to do the same.

I got a Landlord to force an agent to repay deposit and rent taken by an agent, the Landlords Lawyer theatened the agent and they gave a 100% refund. They were facing a £6k claim from my client.

There are some good and some bad Landlords but every Letting Agent is a scum sucking leech.

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Cak 2nd August, 2015 @ 16:51

Thank you for your reply, it was very helpful.

Fortunately I have not paid any late fees, and have been in a debate with the letting agent about them, their late fee policy is £25 a week, and claim that they should have been applied as far back as March (which is RIDICULOUS) for a broken front door lock. I found out that they took the repair money from my rent payment, which then left me in rent arrears, and then they added late penalty charges for late rent on top of that! After a couple of emails they would not take all of the late fees off, so I explained that their policy on late fees is in the nature of a penalty, and I also explained that the lock was part of the communal front door which is an external structure of the building, so I will not be paying for any lock repairs, I have still not received a reply. At the moment there is only £25 of late fees being charged but the money is still better off in my pocket than theirs, and Im a student so its not as if im flush with cash.

Could I use the threat of a claim to get my full deposit back (we are going to leave the house in good condition, but this particular letting agent is known for charging ridiculous amounts for anything they can find, so they can keep your deposit) and remove £90 charge for a replacement toilet (split 2 ways, so £180 altogether, which is expensive as well since they employ a repair man full time and i'm guessing he doesn't charge call out fees) which I already agreed to pay?

Im definitely going to report them regardless of what happens, who would i report them to? as on the OFT website it says they closed in 2014

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Krzysztof 5th August, 2015 @ 15:50


Thank you for advice.

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ElPea 24th August, 2015 @ 10:31

I'm in a bit of a tricky situation with my landlord and I'm not entirely sure what my legal stance is.

I moved into the property at the beginning of 2006 with 3 other tenants. Over the years, the other tenants have changed, each paying their deposit to the one that they are replacing. Around 3 years ago, the landlord noticed that one tenant had missed several rent payments - although it took them 10 months to realise this. As a result, the landlord said that he would withhold all current tenants' deposits (the one who was missing payments insisted he'd paid, provided bank statements showing he'd paid and subsequently moved out).

I am now moving into a new property and the landlord is sticking to his word and withholding my deposit, but not the deposits of 2 other tenants that are moving out at the same time (who arrived after the missing-rent-gate).

And there's no deposit scheme for any one in the house - this includes his basement property which I have managed for the last 5 years and consistently found tenants for.

Do I personally have a leg to stand on in court? Does the shared periodic tenancy still stand despite rent increases and new tenants? I have a feeling it does but just want to make sure...

As for the other two tenants, I understand that they can take him to court without a problem. Just seems so petty to withhold mine when he's had over £50k in rent from me in 10 years!!

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David 28th August, 2015 @ 18:05


Agents are leeches, they screw landlords, they screw tenants.

Your DEPOSIT is held for security against repairs, not your rent.

You just dispute it, confirm that their is a dispute on repair charges and you have paid your rent so reject the penalty fees they have applied.

The OFT has been merged but OFT356 IS current guidance.

You are only responsible for your front door lock and not any community one unless you have damaged it and they have evidence of that, e.g. a letter from you saying you broke it.

You can tell them that you do not care what their policy is because you have never agreed to be party to their policy and even if you had, the law of England supercedes any written contract.

It is for a Judge to decide Unfair Contract Terms, so tell them there is a dispute on the front door and if they wish to take you to Court you be please to defend it and will seek costs.

When Agents behave like arses and are incompetant they deserve everything they get. I have helped people get the agent to return 100% of their fees, the deposit and initial rent. I did this by writing to the landlord with a settlement offer of 2 times the deposit and the promise of further legal action for the initial monies taken, (the tenant had turned up to find the property let to someone else and the agent was trying to screw the tenant).

I gave them a time limited offer to return all monies taken from the tenant as a full and final settlement as there was no gripe with the landlord, just the agent.

I pointed out that the Landlord would be within his rights to sue the agent for their incompetance in not following the law plus their legal fees.

The agent had refused up to that point and we refused arbitration, we had a strong legal position and we leveraged it. The Landlord got a lawyer, we repeated the offer to them, they threatened the agent with legal action and we got 100% back.

In your position I would contact the Landlord directly, his details will be on the tenancy agreement. Tell him that the deposit has not been protected in accordance with the housing act and he is the one responsible in law. Explain that you wish to depart in an amicable manner but the agent has been vexatious to the extreme. Say that you are prepared to consider not taking legal action if you can just get your money back with no charges or other nonsense from the agent and that you would like a positive written reference from him. Put "without prejudice" at the top and bottom of the letter.

If the Landlord does not agree then just send them another letter telling them you will commence legal action for failing to protect the deposit in 14 days unless they settle at 3x the deposit plus the return of the deposit (what a Court will give if it has not been protected).

There are good and bad tenants, there are good and bad Landlord but all agents are scum (excep[t open rent but they are not an agent really).

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David 28th August, 2015 @ 18:14


If each of the properties is a self contained flat then he needed to protect each of your deposits separately. Even if not then he is only entitled to the prorata portion unless the tenancy agreement says you are all joint and severally liable.

As the property is pre 2007 he was given a 90 day window to protect the deposit and issue you with the Prescribed information when the Deregulation Act 2015 was passed in March 2015. We are past that and so unless he has complied he is going to be liable.

Technically the 3x deposit and return of the deposit would be shared between the tenants but one could argue that he has failed to protect each deposit a new tenant paid. It does not matter that you collected it and repaid it, the landlord is responsible under the law.

Call or meet the landlord, explain that you wish to depart amicably and that means the return of your full deposit and a glowing reference. Otherwise you will take him to Court for failing to protect the deposit and issue the prescribed information, suggest he take legal advice before making a decision but give him a deadline, say 14 days.

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Benji 28th August, 2015 @ 19:11


"Your DEPOSIT is held for security against repairs, not your rent."

Absolute bollocks.

Your intentions to help might be good but if you don't know what you are talking about, you do more harm than good.

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Dan 3rd September, 2015 @ 12:41

Hi guys I need your help & opinion:

I've been renting from my "landlord" for the past 18 months and the fixed contract ended 3 month after I moved in and since it expired I've been renting on a short hold tenancy contract (on a month to month basis with no fixed end date) and yesterday it turned out that he is not the real landlord.

The real landlord came at the house saying she had rented the house to the "fake" landlord for a maximum of 6 people (all of which were supposed to be a family unit) and that the he is in breach of contract for unlawfully subletting the house and renting the rooms to 10 people - basically he has been making money on us by renting the 4 big double rooms to couples and the 2 smaller doubles to myself and another tenant. I know that he will be served with notice to leave for breaching the contract and he will have 60 days to leave (as per the agent who's acting on behalf of the real landlord).

Now because the real landlord has figured out that she can make more money by renting to more than 6 people she will probably either let us stay and re-new the contract with us, or ask us to leave and start afresh.

My issues is this:

I don't really want to leave because I know that it will be practically impossible to find another place as new, clean and convenient for the same amount of money (£515 pcm all inc.). Can the real landlord ask me to leave when the notice to the fake landlord expires? In the worst case scenario, where would I stand if I decide not to leave? (consider that I still wish to continue being a fair and law abiding tenant).

The other issue is this:

I know for a fact, that the fake landlord did not put my deposit in a protected scheme because he neither told me and nor presented me with the DPS certificate within the 30 days of me paying it to him! Therefore, I am aware that he is in breach of law and thus liable for that.

Moreover, because the real landlord will serve him the notice to leave, he will have to give me notice to leave (4 weeks as per contract). However, I fear that he may not give me the deposit back and do a runner (he's already done it with a previous tenant). Because of this fear I am thinking to withhold paying him rent due in 10 days.
Therefore, where would I stand if I decide to withhold paying him rent until he gives me my deposit back as a protective measure for fear that he will not give me my deposit back? Will I be liable and thus in breach of contract considering that he himself is in breach of contract by unlawfully subletting the rooms? Can he evict me for by serving with the Section 21 notice?

I would really appreciate you opinion and suggestion.
Thank you all for reading.

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Nicx 5th September, 2015 @ 06:34

Hi, Yes we have a problem. My family and I moved into a rented house in 2014. And paid a deposit of a thousand pounds. The house when we moved in was pretty much in the state the last proper owners had it, my landlord is on a mortgage which I only just found out. But do not know if this house is on a mortgage to rent basis. Two-three weeks ago the boiler went leaving us no heating or water, after waiting a few days, I had no choice to buy a £300 power shower just for the hot water, we have been decorations the place which we've had no thanx for what so ever, and believe me it's cost us a fortune. He keeps me in by saying the plumper will be here Wednesday (example) then no one shows. But I have been reading in here bout "protecting deposits"? I've had no such thing and don't even know what it is, I was told however that with the deposit protecting then that should of covered someone coming out to fix it pretty quickly rather than the landlord waiting on a mate to have free time to do it. I have a child with life threatening illnesses and really does need to keep warm, and it's getting colder. I've told him that I can actually do something about this and he just threw back in my face "well I can claim for late rent, Which yes I'm only late with one month which I've been adding in to other months. I'm just so damn fed up of these money grabbing little leaches that think they can run a letting business. My last landlord I had to call environmental health out who did end up summoning him due to damn which was major bad (he covered up with paint on viewing) ... Can someone help in building me on what I can do. Someone is suppose to be here at 9 today but I've heard that for a week now. Nicx Help much appreciated thanx .

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SheLandlord 12th September, 2015 @ 14:56

I haven't time to reply to each individual question but I can give you some general information which I hope will help. Most of this is in the article anyway but here goes.

1. If you have paid a deposit to a landlord at any time and he did not give you The Deposit Protection Certificate (sometimes this comes directly from the scheme which he has used) and the Prescribed Information for Tenants (which gives you all the info you need on deposit protection and how to fight a bogus claim from your landlord or letting agent).
2. The law now requires that deposits which were taken before the legislation came into being must be protected and the above info sent to the tenant
3. If your deposit was not protected there are several No Win No Fee companies who will go after compensation for you and charge you a percentage to cover their costs. There is no risk because you only pay if they win.
4. You have up to 6 years from the end of the tenancy to take a case for compensation
5. If your deposit was protected and you were given the info., and you do not agree with any monies stopped you should raise a dispute with the scheme. This will not cost you anything and the onus of proof (that the money stopped was justified) is on the landlord, you don't have to prove that you are not liable for the payment
6.If your full deposit was returned and the landlord did not protect it taking legal action to piss the landlord off is probably a waste of time and energy and you may get little of no compensation but it's your choice.
7. Often letting the landlord or agent know that you understand your legal rights and are prepared to take action will stop them taking your money and will get you your deposit back
8. The deposit is taken to cover the landlord for loss of rent, loss of items or damages and if the landlord can prove these losses he will no doubt win in arbitration with the deposit protection scheme. If he cannot prove it, even if it's true, he will not and he will learn to get his documents in order in future.
9. If you are suffering from disrepair, report it in writing/email, allow a reasonable amount of time for a reply (this depends on the nature of the issue). If the landlord does not address the problem report him to the council Environmental Health Department who will contact the landlord and fight on your behalf. Do not withhold rent because this makes you vulnerable to eviction, unless your problem is so urgent and your landlord does not deal with it and you are forced to get it done yourself. Get 3 quotes where possible and choose the cheapest - you can then show that you were trying to keep the costs down and be fair to the landlord even though he has let you down. You can then take the costs from the rent and provide the landlord withe a copy of the invoice to show that you have spent the money on urgent repairs. He will not be able to recover that money from your deposit because you will have the correspondence and invoice to show to the arbiters

It's always better to try to resolve issues by speaking to the landlord but if the landlord does not reply to you the law will protect you.

Good luck to you all

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Sean 20th September, 2015 @ 10:23

Hello Everyone,

My Landlord has not put our deposit into a deposit scheme.
Would it be possible for him to put the deposit in a scheme even though the lease has ended so we can go through the legal route?

Many thanks,

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SheLandlord 20th September, 2015 @ 11:38

Sean Did you mean to say if he puts it into a scheme now will that stop you going through the legal route or do you mean that you want him to put it into a scheme so that you can use the free arbitration service of the scheme?

If it's the later it is now too late because the tenancy has ended. You can still go to a No Win No Fee company and ask them to take legal action for compensation because he did not protect the deposit but don't waster any time if you intend to do that.

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Ninkynonk 20th September, 2015 @ 14:38

I'm in the process of successfully suing a landlord from 2014 that kept part of my deposit because I broke the lease - but EMAILED ME to tell me that the deposit hadn't been protected. He blamed the letting agency, but I have it in writing from him saying it was never paid into the scheme and that he'd return £400 of my £900 deposit because of the broken lease, plus some other fees the threw in too that seemed unfair.. for example, he told me to move out by the 23rd of July so that he had one week to prep the place for a new tenant to move in on the 30th. I killed myself to move out on the 23rd and then he BILLED ME for the week between 23rd and 30th. Nothing I could do since i couldn't make him give me back the money.. until I found this site and read that you have SIX YEARS to follow up on a landlord who didn't protect the deposit. Suing via a solicitor offering no-win-no-fee, and they keep 33% of the proceeds gained back - after they refund your deposit in full. It's 33% after they've done that. It's money I never thought I'd see again so I'm happy for them to keep their portion.

Just thought I'd share this so that any tenant wondering if they can still do something about a landlord that didn't protect the deposit - it it was less than 6 years ago and you can prove it, then you can. I'm doing it succesfully.

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ben thomas 28th September, 2015 @ 14:56


Lived at a property for 26 months, handed in our notice.

Our landlady did'nt even bother to do a check out with us
Two days later she was unhappy with some items which we agreed to sort

A few days later we discovered she didn't put our money into the tenancy scheme she had stated in our contract, we threatened her with court unless she paid us our full deposit back

She paid us the day after some of our deposit back, but charging us labour fee's etc for damages to us was a bit extreme especially the amount charged.

So we decided we will continue to take her to court, well the following week we had a letter from her solicitors stating if we take her to court they will sue us for £4000 worth of damage and now had another letter which is a joke saying we have now made £12000 plus worth of damages.

How can she go from a few hundred pounds worth of damamge to thousands??

Do i proceed with court?

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SheLandlord 28th September, 2015 @ 17:16

@Ben get No Win No Fee solicitor on it, she it trying to bully you to stop you going for compensation for not protecting your deposit. She would need an excellent Inventory signed by you at check in and check out to win her case and with no check out she's got no chance

@ninkynonk Good for you he is a cheeky sod charging rent for time when he had forced you to move out that £500 will probably cost him over £2K with compensation and I'll bet you would have ignored the lack of deposit protection if he had just returned your deposit

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Lungles 30th September, 2015 @ 04:47

I have just been served the section 21 by my landlord.I just want to find out where i stand legally.

My tenancy started in Feb 2011 and the letting Agent was involved.They indicated on the agreement where deposit was protected. No certificate given.In 2012 the Letting Agent disappeared and couldn't be traced.I realised that my deposit wasn't protected at that time.
My landlord became involved and offered that the deposit would be used as my last rent when i move out.There was a period that i was struggling and the deposit covered the rent on that particular month.

What does this mean in relation with the legality of protected deposit.Can he evict me using section 21.
My landlord as well has not been doing the yearly gas checks since i moved into the property in 2011.Only this year i insisted as i was scared for my life and my children's when hearing about death by gases while people were sleeping at night.No smoke detectors as well were installed by the landlord.Where do i stand in challenging my landlord?

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Connie 5th October, 2015 @ 12:01

Hi, we are first-time private landlords renting our house to a young couple whom we know slightly from work. It’s a Scottish law short assured tenancy of six months with three months’ notice (changed from two months upon tenants’ request), and started on 1 June 2015. Tenants now want to move out early (31 October), and we have realised that we registered with my|deposits Scotland on 22 July (late!) and then “forgot” to pay their deposit in (stupid, I know). We did pay the deposit into the scheme on Saturday last (3 October) and await paperwork. But of course it will show that we were late in protecting their deposit. We are now in dispute with our tenants as to their early termination. They have yet to serve us with valid notice. We have offered 30 November as a compromise (rather than the full three months) but so far they insist on 31 October. How severely have we compromised our position once they find out we have been late in registering and protecting their deposit? Should we cave in and agree to the 31 October so as to avoid them suing and us incurring penalty and fees? We are not so concerned about needing to retain deposit in case of damage etc, but more as a cost benefit exercise. Any advice greatly appreciated !

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jess 5th October, 2015 @ 19:46

Looking for some advice. I had a tenant and paid their bond into the DPS, they were given the prescribed information etc. They left the property at the end of their tenancy and their sister moved in. The previous tenant asked if the bond could be transferred into her sister's name, which I agreed to.
I was advised by the DPS that the easiest way to do this would be to apply to have all of the bond repaid to me, the landlord, then resubmit it in the new tenant's name.
I did this but the previous tenant never responded to the DPS nor to me.
The problem now is that the current tenant is causing me problems with rent arrears. I am about to serve her a Section 8 and Section 21. I was wondering if this issue with the bond is likely to cause me a problem with the Section 21? Any advice is appreciated.

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David 6th October, 2015 @ 16:54

@Lungles where you stand is that your Landlord has not protected your deposit or issued the prescribed information in accordance with the Housing Act.

It does not matter whether he agrees that with you, he is still liable under the law to carry out these procedures.

If you want to be nasty you can put in a claim when you leave for 3x the deposit plus deposit back, so 4x the deposit.

I would not use it to threaten him, either do it or don't do it, usually a letter to him at the end of the tenancy offering to settle for 2x the deposit to avoid court action and legal costs will usually get him to pay up.

The fact that he used an agent does not remove his liability.

Right now I would be more worried about your Gas Certificate and so should he, he can be fined a fortune.

I would contact your local Council and report him.

He can no longer evict you for asking for such things (revenge eviction).

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David 6th October, 2015 @ 17:15


You are in trouble, do you have anything in writing agreeing for the transfer of the Deposit?

Legally the tenancy with the new person is a different tenancy and has all of the requirements of the Housing Act and the PI Act 2007

You can ask the DPS to release the money if you have a written letter agreeing this from the original tenant but I would leave it there as it might mitigate your loss if you explain to the Judge.

The new one can still go after you for the failure to deliver PI

Depending on the level of the arrears I would make an offer to the tenant to leave within 2 weeks with no further action. Even if they do not accept it, it shows the Court you have tried to not waste their time.

The usual fine 3x the deposit plus the return of the deposit but the agreement with the old tenant is a separate contract.

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The Landlord 6th October, 2015 @ 18:25


David covered most of it...

- If you're deposit isn't protected, you're entitled to compensation, up to 3 x rent.

- Your landlord should have installed smoke & CO alarms by the 1st of October 2015 (if you're in England).

- Your landlord should do a annual gas safety check- that's extremely important.

- He can't evict you with a Section 21 given the circumstances (i.e. he hasn't protected your deposit or given you the prescribed information).

Challenging to remain a tenant in these situation always seems counter-intuitive to me, because you end up having an awful relationship with the landlord. And in this case, the landlord is awful!

I'd personally inform him that the section 21 is NOT valid, and then strike up a deal (e.g. you'll surrender the tenancy when you have found a place, whenever that may be) and ask him for 2 x rent (as David suggested, to avoid legal hassle) for compensation (just to teach him a lesson for being so careless).

In any case, you have leverage.

Goodluck with what you decide to do!


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