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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183 Comments- join the conversation...

Showing 133 - 183 comments (out of 183)
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Andrew 23rd November, 2015 @ 12:38

Hi everyone, I'm looking for some help/advice. I am a landlord and my tenant has just moved out. Tenant is very nice and well meaning but has left flat in quite a state. I was going to charge from deposit the cost of me getting a cleaner in (was really dirty), the cost of an electrician mending a socket they broke, cost of broken blind, missing window keys, missing light dimmer switch, and possibly something towards painting wall (which they had got ink all over) and something towards the carpet I replaced (was badly damaged). The tenant realises that these costs will have to be taken from deposit.

However to complicate things I've just realised that I hadn't properly deposited their £800 deposit in the scheme like I thought I had. I had set it all up with tenants details but stupidly managed not to actually pay in the money, a year ago.

Should I, a. work out the cost of damages and return the rest of the deposit to the tenant and hope they don't realise my mistake, b. give it all back (although this is very annoying given the state it was in and the costs I have incurred) or c. something else? I would appreciate any help!

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PenMJ 7th December, 2015 @ 14:24

Hi all,

I had a tenant (nice Portuguese family) that moved out in September. The move was all amicable, they decided to move as I had told them the house was going to be sold in the near future, but stressed that they would get a 3 month notice period if I was to get an offer (all in writing) There were no issues what-so-ever during the tenancy and they moved out early after a months notice to me which I had no problem with at all. DEPOSIT PAID BACK IN FULL.
So you get the idea that everything was pretty normal, a really good tenancy relationship. The house has been sold as of a month ago.
Now, I had an agent put the tenants in and sort out the paperwork, pictures deposit etc. Unfortunately, the deposit wasn't registered and I only realised that this had gone into my house account which I don't bother with (I have 2 other rentals and monies function from one account, I check every 2 months or so)
When I realised this deposit hadn't been registered I already had the house on the market and they had served their notice, so I didn't bother. 2 months later (Friday 7th Dec), I get the nastiest of letters from what appears to be a no win no fee company wanting a settlement of £4800 as the dep wasn't registered. I'm devastated and haven't responded as yet.

What should I do?

Many thanks in advance,

Pen

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Bee 10th December, 2015 @ 19:39

I'm a landlord back in may 2012 i took on a young mum with two kids without a reference taking the young womans mothers word that she would ensure her daughter is a good tenant. Not to mention the council paid her rent.
She gave me a deposit of £850 23days into her stay/moving in i started getting complaints from the management company about other people in the building not happy about the noise, the rubbish issues she was causing.

I started to get worried and was thinking of evicting her... at this point i had not put her deposit in the DPS.

Two more letter later with my complaints about different things i decided i was going to have a serious conversation about her staying on when i get a phone call from her saying she wishes to leave

10th Aug she moves out.

Now Dec 2015 i have a letter from her society telling me i need to pay 3x the deposit or she is taking me to court.

I gave her the deposit back when she lift i took off £4/5 for light bulbs shes taken with her but apart from that she got £845 back.

so she's clearly claiming for compensation but is she entitled?
do i pay out or take her to court ?

help i'm not a band landlord just had a troublesome tenant

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Lungles 12th December, 2015 @ 22:55

My Landlord proceeded to court with section 21.I am so defeated by the fact that he lied in court papers that he did not take the deposit from me.He is well aware that The Agent that vanished took the deposit as i discussed this with him and he said i should use it as my last rent when i am about to move out .I fortunately paid it through the bank and i am able to retrieve the statement from four years ago on my internet banking as proof for the Court.

Thank you David and The Landlord for the advise you gave me in the past.I am sure that the case will be thrown out and I should be exposing his lies to The Court.Am I right to believe that he will be liable for the court fees as he asked that I be held responsible for them, if his case is thrown out.

He even used the solicitors to file his case in court.I dont get it.Do they think that i might be clueless and just not complete my forms responding to their case or that i will just miss the fact that they are lying on court papers that i did not pay the deposit.

I can tell pokies at times but i will not attempt to lie to The Court.

I like my home and i shall stay if i am not evicted and otherwise is hard to get a house in my area.I hope that my Landlord would learn a lesson to have some respect for the law after this.One good thing about him is that i don't ever see him so even if our relationship is strained,there is no difference.

Your thoughts appreciated please.

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David 15th December, 2015 @ 10:54

@PenMJ and @Bee you have the same problem, now as long as you have a receipt for the return of the deposit then you are probably fine.

So what is a Judge concerned with?

Why was this Law brought in?

What does the Law say S/He must do?

To make sure that Landlords do not take Tenants deposits and not return them.

There is no risk of that, you have returned the deposit and the tenancy is over. So many Judges will dismiss on that basis.

The law USED to say the Judge MUST charge 3x the deposit, then it was relaxed to MAY charge BETWEEN 1 and 3 times the deposit. Some feel they must charge at least 1x the deposit but many County Courts dismiss the case saying it has been repaid, in my opinion they do this when they think the tenant is trying it on, knowing that the tenant will have to take it to appeal and most do not have the stomach for that. The claims companies also want to avoid appeal because they have to put the money up and if a higher Court rules against them then it will apply to all Courts, while a County Court case does not apply to all Courts.

The fact is that the deposit has been repaid and the tenancy is over, most Judges will take the view that it was a mistake caused by ignorance, there was no malice or harm done and the deposit has been returned. So worst case scenario is 1x the deposit and perhaps their costs, IF THEY ACTUALY GO TO COURT.

Since the deregulation act 2015 there seems to be a dim view taken of people wasting the Courts time, it is viewed like whiplash cases, a try on.

These companies work on the basis of scaring you into paying but there is a risk for them too, a decision against them means they pay your costs.

So it is all a game of bluff, if you write back and say something like

"Without Prejudice

With reference to your recent claim, this is vexatious and without merit, if you proceed the matter will be defended vehemently and we will be seeking our costs in preparation of defending this as well as our legal costs"

"Without Prejudice" means they can't use your reply in Court, it is important because you do not want to admit anything, the statement above does not admit anything but in case you add anything else I put it there.

The No Win No Fee company has to make a decision at some point, they will try to string out letters worded to make you feel vulnerable and to get a reply that gives them something they can use against you. However, they would have to feel they had a very strong case and be sure of a Judge, even if they did proceed, make sure it is being heard locally to you by asking the matter be brought to your local Court.

Of Course, if you want to bend over and take it then you could write a without prejudice letter to tenant offering to settle for £200 and a positive letter of reference.

Never pay more than the one month deposit as that is probably the most they would get in your situation.

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David 15th December, 2015 @ 11:47

@Lungles

As much as you like your home, be aware that eventually he will protect the deposit, issue the PI and serve you with a correct S21, you can stall that but it will cause you stress.

Stalling tactics include not agreeing to meet for him to give you PI and Deposit information, even if DPS send you info he has to give you info and prove he has, so do not sign for recorded delivery, do not answer door, change lock so he can't come in (keep old one for restoration later).

If he issues a new S21 but is is not valid wait until the two months are up and let him or his lawyer know that you reject it because it is not legally valid. By waiting the full 2 months to tell him you bought yourself a bit more time but eventually he or his lawyer will get it right. So you are just delaying the inevitable.

Your case is very different from others on here, your deposit was not protected and you are still in situ PLUS you suggest that your landlord has lied. If you have any evidence of that (an old letter or email from him) he is in big trouble if he lies to the Court.

Now if he has an Agent who has disappeared how can he possibly know whether you did or did not pay a deposit? He is shooting himself in the foot, his mitigation might have been that even though he is liable he thought the agent did it all. However, by saying you did not pay the deposit he is suggesting that he was closely managing the agent.

What you really need is a receipt from the agent, an amount on a statement will only help if it adds up, e.g.

1 months rent £800
1 months deposit £800
1 credit ref fee £125

Amount paid £1725

If it is simply for the deposit amount the Landlord will say it is rent.

However, if you can show the dates match and the amount is greater than the rent and other charges reconcile with charges then you are fine. A receipt is ideal.

With regard to costs we all have a duty to mitigate costs and settle where possible.

You can get your reasonable costs if you do the legal work yourself but only at a rate you can show of your time, usually no more than 70% of what a lawyer would charge.

So at this stage my advice would be to write to the Landlord saying that you wish to settle the matter amicably.

You tell them you have evidence of the deposit being paid (no need for too much detail at this stage) and will be defending the case.

The Court gives you nothing unless you ask for it, you need to counter claim against him and pay the court fees for the fine to him of between 1 to 3 times the deposit, you also have to ask the Judge for costs once you win or as part of your brief.

So you tell your Landlord that by not protecting your deposit he is now liable to be charged for 3x the deposit plus the return of the deposit. In addition he will have to issue a new legally valid S21.

However, in order to resolve this matter amicably you are prepared to settle the matter under the following conditions

the withdrawal of his S21 claim and either

A. He pays 2x the deposit for your trouble, he issues a new legally valid S21 and provides you with a positive reference.

B. He pays 1x the deposit and allows the tenancy to continue for a minimum period of 24 months and complies with deposit protection law.

This gives you peace of mind and gives him a way out, it also tells you his mindset.

If he wants to sell or just wants you out then A is his best choice, if he goes for B it means he is OK with you.

Now if a Judge sees that you made an offer to settle but he proceeded to waste the Courts time they will hit him for the 3x and be generous on your costs (assuming you have evidence of deposit paid).

If you go to Court I STRONGLY advise you get a lawyer who specialises in Housing Law, not a no win no fee company but a lawyer who has handled similar cases, in London there is no one better than anthony gold solicitors whether you are a landlord or Tenant, otherwise you want a Lawyer in your area who has won similar cases on behalf of tenants, Shelter can recommend one.

If you do defend yourself do not sound too cocky, make the Judge feel he has to help you.

I would still involve the Council is the Gas Certificate and use any paperwork as part of your Court action to show that this Landlord does not take his legal obligations seriously.

Also a lot of Councils license landlords, if yours is one of them, ask that they decline to offer him a license on ground that he has failed to carry out gas safety .

http://www.propertyinvestmentproject.co.uk/blog/landlord-licensing/

Also if you have arrears PAY THEM or he will use S8 to get you out.

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Luke 15th January, 2016 @ 04:50

Great site, thank you!

My agent took a deposit and didn't protect. After a dispute with the agent I am now managing the property myself and want to evict the tenant due to 3 months arrears. The agent had advised that the deposit was used as rent for month 2 but I cannot evidence this. I have a payment record from the agent confirming deposit is zero but I'm nervous that when this gets to court my tenant will have a receipt of some kind and I will be fined 3x, clearing the arrears

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Lukasz 14th March, 2016 @ 17:08

Hello Do you know what is a limitation period for claiming money back from landlord who didnt protect my deposit. My tenancy end may 2014 i found out i can claim compensate but im not sure wheter i still can? I know that there is 5 years limitation period on a civil claims.
Thank y

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freddie 14th March, 2016 @ 18:14

if i remember correctly you have six years!

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Advice Greatly Rec'd 27th March, 2016 @ 23:54

Hello,

Firstly, thank you for such an informative post + comments section, this has proved invaluable.

Although I believe I know where I stand in regards to my personal circumstance after reading this post etc., I would appreciate advice/confirmation so as to move forward with total confidence.

Let me also say that I would consider myself a very good tenant and would not usually consider this form of action but feel I have no choice given the position we have been put in, there is also more background to the landlord that I have not gone into (i.e. the fact the property has a problem with rats in the loft which has never been properly sorted but we just get on with..)

I commenced renting a property with my wife and child (we have 3 now, 5 + under) in Aug 2013, a 1 year AST with a 6 month break clause. £1k p/m rent and £1400 deposit (deposit + 1 month rent paid prior to moving in). It has since rolled onto a periodic month to month contract with no new terms etc.

We moved in after my parents moved out, as such the property wasn't perfect when we took it over although it was done all above board (they left, we came in as new tenants with new contract and deposit etc.) and we knew it would down to us to ensure when we left it was all ok. The only real damage is a broken bathroom accessory (the towel rail has a glass backing which has cracked) and a small iron burn to a carpet (may come up ok when we attempt to repair it). We will obviously fill all holes and clean, but the whole house needs painting (marks on walls where furniture has been moved etc., most from before we moved in) and the carpets need cleaning (but they are very old and IMHO need replacing anyway if he is expecting to sell).

We have always been good tenants so cannot see any cause for a S8 order. No rent arrears, always paid on time (I think one month we were a few days late as we changed from me paying it to my wife and she forgot to set up the STO but as soon as the landlord called us to ask where the rent was we paid immediately) and no antisocial behaviour etc.

Recently we were given a S21 order out of the blue (landlord is planning on selling apparently). Unfortunately since moving here we have both suffered bad credit and now are unable to rent privately without putting 6-12m rent down (which we do not have available).

Our local council advises we sit tight and force the landlord to go to court for a court order to evict us, something I really want to avoid due to the stress etc. it would cause my family. We are contemplating leaving early although this depends on whether it would negatively impact our chances of the council finding us housing. Assuming it doesn't impact our position we want to ensure we can leave on our terms and get our full deposit back with minimal work/outlay (I am worried he is going to try and keep as much as possible to help him pay towards the work he wants to do in order to sell).

A few days before we received the S21 we out of the blue received a letter containing a deposit protection certificate, PI and information for tenants print off. Since researching into this I have found that we should have received this within 30 days of paying the deposit which we didn't and that our deposit should have been protected within this same 30 day period. The certificate confirms the period of protection as 8/11/13 to 3 months after we vacate the property (which I assume is the date it was protected). It also confirms the deposit was collected from the tenant on 23/09/2013 but we paid it to the landlord before moving it.

Even so, it was over 30 days from the date they said they collected it. Plus the date they said they collected it was actually a lie which they then signed as accurate, as it was over a month earlier that we paid them it (around the 20th or so of Aug if I recall - I can obtain proof of this from my bank statements).

If I understand correctly, the S21 order is technically invalid in a sense in that my landlord did not protect my deposit within 30 days nor send me the information required, both of which are required to be able to serve a S21. As such I believe they would need to go to court to get a judge to confirm they are happy with the S21, which they likely would be given the deposit was protected and the information was sent, albeit late.

In light of this is it worthwhile contacting the landlord and explaining we are aware they lodged the deposit late and provided the info late and as such would need to go to court to enforce the S21 order causing delay and legal costs (I am conscious of the whole deregulation act mentioned above) and seeing if we can negotiate for the following:

1. 2x deposit back (i.e. full deposit returned plus the same again for the fact he cocked up protecting it late and sending the info). This would help towards getting a new place if we don't get anywhere via the council.

2. That we can leave when we want without giving the full 1 month's notice (we would potentially look to leave 1 month before the end of the S21 when the rent we have just paid ends so we don't need to pay any more rent - which is only about 3 1/2 weeks instead of the 1 month required).

3. We get a glowing reference

I would appreciate any advice/assistance

Thanks

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Simon 29th March, 2016 @ 10:16

Hi people, really need some advice here...

I recently ended a tenancy after living in the property for 1 year. I thought all was fine and it was a straight forward end of tenancy.

I gave the landlord the correct notice and moved out on the date agreed.

I left the property in good condition and with no damage.

He has now contacted me demanding £2000 for damages, new carpets, redecorating throughout, cleaning, lots of things and even £30 for replacement light bulbs and £25 for cleaning the windows!

He's with-held our deposit and threatening us with court unless we pay up before April 11th 2016.

It was real shock to receive his letter and IF we had done these things to his property then we would certainly repay him but we left the property almost exactly as we took it on.

Having read through the posts on here, I gather he needs signed inventory in and out in order to prove anything, he doesn't have either.

Also, he admitted to not putting our deposit into a deposit protection scheme.

I done a little digging and it appears that he's used one company to rent the house out where as it is owned by another company, him being the director of the letting company and his son being a director of the company that owns the house. I know I could sue in regards to the deposit protection but will it complicate things seeing that our tenancy agreement was with the company that let the house and not with the company that owns it?

My wife is at her wits end with worry and scared to death about being taken to court.

What is our best course of action please people?

How can we stop him trying to take us to court ?

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cardifflandlord 29th March, 2016 @ 10:32

Hi Simon,

Tell him you will see him in court. Call his bluff.

There is absolutely nothing he can do about it so please don't worry. Tell him to take you to court because he will be laughed out and if what you say is true, will probably be in it right upto his pits because, depending on the date you initially signed the AST, he failed to protect the deposit and is liable to own you money.

Yes, a signed inventory is a must - if he has not got one he is stuffed and he can't claim to bring everything back to as new - it's called betterment. Without proof of condition when you moved in the Magistrate will 99% of the time go in YOUR favour.

Tell him you will, unless he returns your deposit forthwith, report him to HMRC who would only be too happy to start a Tax Investigation into him and furthermore you will counter sue him for failing to protect your deposit. If he threatens anything else go to the Police because he is then threatening with menaces which is a criminal matter as opposed to a currently civil matter.

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Simon 29th March, 2016 @ 10:46

Thank you Cardifflandlord for your swift reply.

Is there any letter templates that we could use to send him before he tries to take us to court?

It's pretty scary the thought of being taken to court and I'd much rather get this knocked on the head before it gets to that stage.

I could get a couple of signed statements from people who went in the house a day or two before we arrived with our things (we moved from down South to the Northwest) and they are prepared to give statements describing what condition the property was in prior to us moving in (thread bare carpets, concrete in the bathroom, dirty and marked walls, etc..)

When we handed the keys back, the landlord met us outside the house and simply took the keys of us and went, I didn't even get out of my car. No final walk round, nothing.

It was the same when we moved in, he gave the keys to my son-in-law and went, no walk around or anything.

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Priya 31st March, 2016 @ 21:38

Hi all,

I really need some advice here.

A tenant who used to live in my flat is trying to claim compensation and is asking for full deposit plus an agreed amount. If I do not give that to him then he says he is going to take me to court plus claim for interest on the unreturned deposit and ask me to cover his costs.

He moved in early 2015 and signed an AST for 6months.

I failed to protect his deposit in a Deposit protection scheme and failed to give him his prescribed information ( I was very silly and forgot to transfer the money into the DPS scheme and did not even know about PI until reading a lot of the blogs on here)

I was living abroad when he moved in and wanted the flat back when I came back so asked him to leave and did issue a section 21 but he left without too much bother except that he kept the keys to the flat! So I promptly changed the locks and subsequently informed him I would take the cost of that (£85) off his deposit as well as cleaning charges and a few other things... It took him 2 months to reply to that email. He did not accept any of the deductions except cleaning. Still not returned the keys.. Finally I agreed to return all deposit minus the cleaning ( which he earlier agreed to) then I received a 'letter before action' today stating that he wants deposit in full plus an agreed amount as a penalty for failing to comply with DPS plus the other things as I described above

Now I am leaving to go back abroad again in a week!!! Where do I stand legally with all this? Surely if he kept the keys he is liable for the rent as long as he had the keys? He returned the keys 3 months late!

Thank you in advance

Sorry for the jumbled message

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Angela Mitford 31st March, 2016 @ 23:19

Hi Priya
Be prepared...There isn't going to be a cost free way out of this...sorry to say.

If your tenant had an AST and you took a deposit, you should have by law placed the deposit in a DPS scheme and provided tenant with PI.

it doesn't matter that your tenant didn't give keys back for 3 months or that you only charged a small amount for a bit of cleaning.

Your tenant has probably gone to some scummy 'no win, no fee' law firm who has issued this letter. If this went to court, you will lose. A judge will give you a penalty, he/she can give you a penalty of between 1x and 3x the deposit your tenant gave you plus the deposit back in full. So if deposit was £500, could be charged 3x , so £1,500. Although the likelihood is that it would be more like 1x or 2x if you plead naivety, you're a first time landlord etc. How much was the deposit btw?

I know it feels crap and unfair (I'm a landlord and made a novice stupid mistake like you too and paid the hard way like you will likely have to) But the law is the law and it doesn't matter how horrible your tenant was, who said what- this law is to protect tenants from being ripped off by landlords who very unfairly keep tenants deposits. It doesn't matter if you think you fairly gave back part of a deposit (as we did). Simply if a DPS wasn't used or PI wasn't given- your tenant can absolutely take you to court and will win.

The solicitor your tenant has used may be crap and may not follow up too much, they may send you a couple of scary letters just to get you to pay up without any intention of going to court. You could ignore it for a bit and hope it goes away. However, they may chase and chase with every intention to take it to court. Problem is you don't know and it's horrible having it hanging over your head. You may have to offer a 'without prejudice' settlement.

I don't think you should have be able to issue section 21 as you didn't protect the deposit so I'm not sure how you did that.....

Compared to the amount of deposit, how much has the letter stated they want?

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Priya 1st April, 2016 @ 14:05

Thanks Angela for your help,

The deposit was £650 and in his letter before action he has not stated how much he wants as a settlement.

I sent him an email asking how much he is willing to accept he is saying he wants 3x the deposit and the £650 deposit ( which he worked out to £2300, even though it is £2600)

Not sure where to go with this now. What should I do from here? Should I offer less, maybe £1200

Priya

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Angela Mitford 1st April, 2016 @ 15:16

Hi Priya
I think the first thing I would do is to pay his deposit back to him in full straight away, with a nice note that you have done so and asking him to confirm receipt of it.

Pay via bank, take screen grab of confirmation etc.

Then once you have this...if I were you I would I offer a without prejudice Part 36 offer for £650. I don't think a judge would award tenant more than 1x deposit if you paid the deposit back in full. Read up about Part 36 offer- (find a newer article than link below). if tenant does not accept but does not win more than this in court, they have to take care of court costs etc. The courts want to encourage parties to negotiate and accept fair settlements without wasting the courts time. So tenant is then penalised if seen to be greedy and going ahead with a proceeding anyway.

If you've given deposit back in full too - looks good. Trouble is, I don't know how long you've kept hold of deposit for..that's not so good. :)

http://www.glovers.co.uk/news_article246.htm

I would get a cheap admin solicitor to draft part 36 letter for you and hopefully tenAnt goes away.

If doesn't accept it, I would probably consider giving part 36. offer of £1300...2x £650 deposit but no more. As i would hedge bets that tenant wouldn't get more in court and so would be up shit creak for not accepting it in front of judge.

I'd be careful of making these offers via email without drawing up a solicitors letter stating without prejudice, part 36 offer etc...you probably need to make sure it's water tight.

I'm sure there are others on here that are more wise on this matter than me. We had to shell out a lot to an ex tenant. Makes me sick thinking about it!

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Priya 1st April, 2016 @ 16:14

Hi Angela,

I have offered him £1000 he has declined to accept this.

I kept the deposit for about 3 months now. But I have asked for his account details in the past.

I have sent him a part 36 email and offered 650 x 2 ( he has asked for his deposit back now in full) . I spoke to nla and they said there is no wrong way of wording it. So I kept it simple.

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David 4th April, 2016 @ 13:51

Hi Priya

One thing Courts hate is someone wasting the Courts time.

So whilst you made a mistake if you have shown willing to correct that mistake and they refuse, it soon becomes obvious what has happened.

You say the tenant held onto the keys for 3 months, can you confirm when they actually left?

Can you also confirm who have notice and whether if it was you whether a S21 was actually issued?

My advice would be to pay the deposit into the DPS now, you do this on the basis that the tenant is being difficult.

In that system you do not say the tenancy has ended just act as if it is a late deposit.

Then when it has been accepted you offer to release it (less reasonable costs that you can substantiate). The tenant will be informed by the DPS and given a chance to accept it.

This shows willing on your part if you go to Court, you say you tried to repay but the tenant refused so you paid it to a 3rd party and gave him control to get it back.

Next you write to the tenant and say you would like to resolve the matter amicably, however, you must advise him that Judges take a dim view of people using the law to threaten and imtimidate people or to not behave in a reasonable way.

Remind the tenant the whilst the S214 legislation DOES indeed allow for a sanction of 3x time the deposit, this is the maximum payable and generally used for extreme situations where there has been malice, this is not the case in your situation.

Say that as you have refused the repayment of the deposit you have paid it into the DPS and he will have been notified of that and how to get it back.

You then say that as a gesture of goodwill you are prepared to pay him the sum of £650(or whatever your preferred amount is) as a full and final settlement and that if your offer is accepted you will provide a positive written reference to further avoid any hard feelings.

Then you say that up to now you have dealt with the matter yourself, but if wants to have a protracted legal case you will have to appoint a solicitor to deal with this matter.

Advise him that "whilst he may win his case, a Judge may decide that this is indeed a matter of an oversight on the part of the landlord who has shown willing to resolve the matter without wasting the Courts time. As such the Judge may only award £650 but because you have shown unwilling to accept a reasonable settlement, may also decide that not only are costs to not be awarded but you may have to pay my costs too. Even if the Judge says each party pays their own legal costs you could be facing legal fees of £3000"

Say that if you are forced to go to Court then you will have to consider taking a counter action against him for failure to pay rent for the 3 month period he held the keys. (This assumes that you were not able to and did NOT rent the property during this period).

Then repeat again that you would like to resolve the matter amicably and urge him to accept your reasonable offer to settle.

Chances are he will come back with a counter offer of say 2x rent but you should either cap it at £1000 or say you will accept it but withdraw the offer of a positive reference (In negotiation we never give up something without taking something back).

I do not think he has a lawyer yet, the no win no fee companies always have terms that protect them so he needs to know that no win no fee can still involve costs.

I suspect he has seen stuff online and is chancing it and to some extent so are you, ultimately it is about your appetite for risk. If you do go to Court do not use a local lawyer, use one with significant experience and a success rate for both tenants and landlords.

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Ali 4th April, 2016 @ 22:43

I would want some legal help please on a tenant I am facing troubles with them now... I faced many in the past but now I just need to see what are my options for this.

I am in the same situation as Priya where I forgot to protect the deposit but when I came to knowledge of it, I told the tenant and have protected on DPS when there are less then 3 month remaining on tenancy.

I receive a email from the tenants parents, saying can she see the DPS protection certificate, I said I get back to you and on this email they said we can deduct the deposit off the monthly rent they pay, I said hang on let me check because its a legal requirement for myself and then they say better now then later...

The deposits is protected now and have checked with DPS but the tenant is not paying their April-June rent and saying the house was filthy and other things the tenants which I took care of in the beginning and made sure they signed the inventory form off which they did. The person is the guarantor of the tenant, the other tenant also not clearing the rent that is in the same flat.

Now, if you can tell me where I stand please?

I have rectified my mistakes, the tenant has knowledge of this and they are holding the deposit and sent a last email saying that they can take me to court as saying I have to pay three times of the deposit that they paid. I always been compliant with the tenants.

The deposit is protected now, I have rectified my mistakes, then why the tenant suddenly change their behaviour from clearing the rent to threatening to take me to court.

I don't see a reason where the tenant should be able to with-hold any rent where I have payments to go out, I really need your advice.

I don't know what to do, there is no communication with the tenant guarantor since the email was received, the deposit is protected now to rectify my mistakes, what do I do now?

Can I serve a section 8 or section 21 to them and do a CCJ?

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Ali 4th April, 2016 @ 22:46

Sorry had to post again due to some grammar errors:

I would want some legal help please on a tenant I am facing troubles with them now... I faced many in the past but now I just need to see what are my options for this.

I am in the same situation as Priya where I forgot to protect the deposit but when I came to knowledge of it, I told the tenant and have protected on DPS when there are less then 3 month remaining on tenancy.

I receive a email from the tenants parents, saying can she see the DPS protection certificate, I said I get back to you and on this email they said we can deduct the deposit off the monthly rent they pay, I said hang on let me check because its a legal requirement for myself and then they say better now then later...

The deposits is protected now and have checked with DPS but the tenant is not paying their April-June rent and saying the house was filthy and other things the tenants which I took care of in the beginning and made sure they signed the inventory form off which they did. The person is the guarantor of the tenant, the other tenant also not clearing the rent that is in the same flat.

Now, if you can tell me where I stand please?

I have rectified my mistakes, the tenant has knowledge of this and they are holding the rent and sent a last email saying that they can take me to court as saying I have to pay three times of the deposit that they paid. I always been compliant with the tenants.

The deposit is protected now, I have rectified my mistakes, then why the tenant suddenly change their behaviour from clearing the rent to threatening me to take me to court.

I don't see a reason where the tenant should be able to with-hold any rent where I have payments to go out, I really need your advice.

I don't know what to do, there is no communication with the tenant guarantor since the email was received, the deposit is protected now to rectify my mistakes, what do I do now?

Can I serve a section 8 or section 21 to them and do a CCJ?

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David 5th April, 2016 @ 07:26

@Ali

I suspect that the tenant is currently going through financial problems and is using the deposit situation as a smoke screen or delaying factor.

The bad news is that at some point you are going to be on the hook for either a settlement or a court action.

The good news is that you have rectified the situation and most Judges will take that into account.

You did not mention having served the prescribed information, there is no point protecting the deposit if the tenant is not made aware using the prescribed method, otherwise you are on the hook for another sanction.

You need to do this multiple ways so they can't deny receiving it, video yourself taping a copy in an envelope to the entrance of the property and putting another copy through the door, email a copy and send a copy my both normal and recorded mail.

Your failure to protect the deposit prevents you issuing an S21, another thing that prevents issuing S21 is anything outstanding that a Local Authority might say is not fit. So grasp the nettle, speak to the local authority, tell them you have a tenant who is behaving in such a way as to render them homeless which is something you wish to avoid, so can they please inspect the property so that you may put right any issues they find (not that you suspect there are any).

Contant the guarantor and ask them what is the real situation, explain that when a tenant is great but suddenly stops paying rent there is usually a problem in their circumstances. As such you would like to help but you need to be made aware of the full facts. Did they lose their job, are they making a housing benefit claim etc. Remind the guarantor that they are financially liable so it is in their interest to mitigate losses.

To answer your question you can S8 them for non payment and it sounds as if they are trying to create a case to defend such an action. Which is why by showing willing to respond is important.

Ask to arrange a mutually convenient time to look at the problems they say need to be fixed, invite the housing officer to attend.

If they will not have the meeting use the terms of the tenancy to carry out an inspection, say that the boiler is due for an inspection and preventative maintenance check from your insurance company. If possible book such an inspection it will not cost you much.

Use this time to engage with the tenany, reassure them that you value them as a tenant and want to sort out any problems they have. At the same time ask them if everything is alright because in your experience they are behaving as if they are struggling financially. Explain that you will do all you can to help if they are straight with you. Ask them if they would rather deal with you directly or via the guarantor.

Once you determine who it is best to deal with here are your options.

THE HEAVY WAY

All out war, use of S8 & S21 to evict, expect them to fight you at every end and turn, Judges will take a dim view of a S21 claim when there are arrears in rent, so tenant has shot themselves in the foot, number one rule of S21 claims is make sure rent is up to date. Of course they can play you by paying it at the last minute and then late again, so you become their bank. You can use the terms of the lease to claim back any real costs such as interest but there is little or no point in trying to use punitive or excessive charges even if they are mentioned in the agreement as they are against OFT356.

THE SOFTER WAY

A letter saying that you want to keep things amicable and avoid any court costs for both parties but reminding them of their legal obligations under the contract they signed. Say that you accept that they potentially have a case for the delayed protection of the deposit but they need to be aware that the legislation say UP TO 3x the deposit

Say that you have taken legal advice and that in the circumstances chances are that a sanction of 1 x time rent will be payable but that you are willing to discuss a full and final settlement either now or at the end of the tenancy. However, any such settlement would be dependent on them bringing the rent up to date.

Explain that the law says you are NOT allowed to use the deposit as rent and now that it is in the DPS you do not even have access to it.

Their response will determine the way forward, from what you have said they seem to just be trying to create a defensive position because they do not have the rent. If they have been good tenants for a long time and you wish to keep them beyond the 3 months then it is worth trying the softer option.

The other possibility is that they plan to move and are looking at getting out of paying the last 3 months.

Your strength here is the guarantor, you can use them to put pressure and point out thet they are liable.

The 3x rent is a maximum, it is usually awarded when a Landlord fails and is seen to be a bit dodgy. It is not a right and requires Court action.

It does NOT give them the right to withhold rent and by doing so they will damage their chances of getting much.

By offering a settlement you can affect how a Court awards costs. If you make an offer that a Court thinks is reasonable and similar to what they are likely to offer the Judge think why the fluck are you (the tenant) wasting my time. So they may give the minimum sanction, not make you pay their legal costs.

If you have documented proof that you have tried to be reasonable, involved the local authority when it was suggested there was a problem (you will get their letters and can use them in your case), then the Judge will see things for what they are.

At the same time if the tenant has reported problems since the beginning and you are only now dealing with them, then the Judge will see that too.

I hope this helps.

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David 5th April, 2016 @ 08:25

@Simon

I have tried to post this but it is not working, I suspect it is too long so will post it in two halves.

This advice given for the benefit of anyone coming across this post and it is to both landlords and tenants.

ALWAYS film the property when you leave using your phone which has a digital filestamp in the file.

ALWAYS insist that there is a "handover" in the property.

If not you have your film, I would upload it as a hidden video on youtube, it then has a second date stamp.

Your Landlord requires EVIDENCE to go to Court and Court fees have increased substantially, making them the playground of the rich.

He has to prove whatever he alleges was done by you, you have a witness, your wife, so he is at a disadvantage as you will both take an oath and swear that you left the property in good condition.

There is no template for a personal response but something along the lines of what I have put in next post.

With regard to who is responsible, it is the Landlord, ultimately the Landlord is the person named at the Land Registry ( go to land reg site and download title and register for £3 before prices go up).

The tenancy agreement will also say who the Landlord is, but if they say anyone other than the owner you can issue your legal paperwork against the owner and allege that other parties are agents in accordance with Housing Act. If the title deed names a company then it is that company you go after not the other one as they are an agent. It is a good idea to use google to search duedil for the directors of that company, get their home addresses and serve them at home. There is nothing like a wife chewing the ear of a man who is supposed to be protecting her. He can be tough with you but to her he is an ant!

Tell your wife that he does not have a leg to stand on and chances are that he will be paying for yout annual holiday this year!

He will NOT take you to Court, before doing that he needs to send a letter before action and that will usually come from a lawyer if he intends to use one; more fool him if he does not.

Do not shy away from taking legal action for the failure to protect the deposit just because he has a complex structure.

The OWNER company is liable, the other is an agent of that company and I would insist on dealing with the officers of that company.

When doing your Land Registry search look if the company has a mortgage, send a copy of your letter offering a settlement to the Mortgage company as an "interested party" also use the land registry forms to issue a unilateral notice against the title deed of the land.

"A third party who has an interest in a particular piece of land may register a notice against the property’s title register. By registering a notice a party who has an interest in the land may prevent another individual from purchasing the land free of the interest. The notice does not necessarily confirm that the third party has a valid interest – only that they claim to have one."

You do this because you have checked the company records and the company does not have any other assets, turnover or income so you are concerned that the company may try to dispose of the land and wind the company up to avoid a legal decision.

You can petition the Court to issue an injunction preventing the sale of the land pending the outcome of the case.

Now this may sound complicated but a Lawyer will handle this for you and seek their fee from the Landlord via the court.

In reality it will not get that far, once your landlord gets legal advice he will settle, he may come back and offer you 1x the deposit plus the return of the deposit plus the extras I quoted above but I would go for 2x the deposit plus return of deposit plus extras as he had been a bastard.

In fact the only motivation I can think of for this idiot is because he knew he was in the wrong and that you may come after him in the next 3 years.

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Ali 5th April, 2016 @ 08:52

Hi David,

Thank you for your reply, very insightful. First the tenant raised the issue and then offered to pay the rent deducting the deposit, not sure if this was a trick but I said let me check on deposit that should be protected.

I then called DPS and explaining my situation and protected the deposit for urgent attention and sent them perscribed information. (Sorry forgot to mention earlier.)

Now the tenants guarantor wants me to settle this to near compensation of what the court will charge me but I feel that I have rectified the situation and the deposit is protected. First they were willing to pay me my rent with deducting the deposit and this I have in email writing from them.

One of the tenant has paid £50 which I see as an insult or a joke, no where near if the rent that should be paid that is arrears in 3 months.

To my knowledge and the court can see that I have always kept my communication my highest piority, I don't see anything wrong where the situation has been resolved and deposit is now protected.

Rather I see they have violated their terms by not clearing the rent, as most landlords I have payments and mortgages to make. They are asking for a settlement near the 3 times deposit and the deposit I have protected already hence they not paid the rent which will cover that.

They mention earlier problems also which I dealt with in a calm manner. Few days ago tenants guarantor was going to pay me the rent deducting the deposit and this I have in writing in email format from them and saying better then now then later that it gets sorted but I assured deposit are protected.

Then I messaged them that I forgot to protect and it will be protected from as of date and I can promise you while speaking the DPS regarding this, they also said the court will be long winded for me.

I feel I should not pay any settlement compensation where I never had any problems with the tenants, they been paying rent on time but since this was raised they have read somewhere in the internet if landlord fails to protect deposit then they will pay 3x deposit to the tenant. It's protected now.

I just don't want to waste my time or the courts time as I have been compliant, at the beginning of the year the tenant also wanted to deduct rent from their agreed signed contract but I said they signed a legal binding contract then no reply email recieved until now.

I feel I don't have to pay any compensation to the tenants as I always updated them and have email to prove this, they began to record and send all email correspondance to me as some sign of evidence report but on a later email. I mention why did you not include earlier emails where you wanted to clear the rent while deducting the deposit and they mention it's better to get sorted now then later?

I really think I don't have to pay any compensation as I always kept them updated and I kept my promise to protect it. As I see it now the deposit is now protected and the tenant is in violation their terms by not clearing the rent. I also mention in my tenant handbook their will be a £30 fee per day if rent is late.

I don't mind going to court as long the court can see I tried resolving the matter in person and I don't see because of my earlier mistakes now I have to pay 3x back to them or hold my rent for this... All I want is my rent to be cleared and they to move out after the tenancy ended in June 2016, I don't get it, few days ago the guarantie is nice and says better to get sorted now and said I am honest person and is willing to pay the rent deducting the deposit and is treatening me with pay 3x deposit back.

Going to court will waste of my time, courts time and their time as I don't see their have a valid case rather then trying to use the court rules to recover the 3x penalty back but the court needs to acknowledge that I rectified the problem, seek advise and now they are in violation as they in rent arrears.

I think the guarantor will see this messages I am putting here but I am looking for advise where I feel they are trying to take advantage of the circumstances.

What do you think the best solution is and where I stand, believe me I don't see any wrong that have to pay them a settlement fee before they go to court as as near the 3x deposit... I really feel bad where the tenants guarantor was nice and calm about the situation and now giving me threatening emails saying going to court and all that.

I don't mind going to court as long my rent is cleared and the court sees I have resolved the problem and made sure it is protected. I feel because they are in violation now I want to serve them notice and do CCJ against them but I am not that cruel where can give them time but there is limited time I can give as I have outstanding payments that will need to be cleared when rent is received.

Where do I stand now and do you think they deserve a compensation where I have been compliant and having protected their deposit?

They are holding the rent to pay me the difference of the compensation and then pay me which I see is wrong. As the landlord policy is confirm, rent needs to be paid on time and this enables landlord to pay for their bills and payments.

Where I feel compensation is not required and I feel I have done nothing wrong but resolved this already for my earlier mistake, I am willing to offer the tenants pizza for their troubles and as a good will gesture.

Sorry for a long email but I thought I can mention everything and I really feel that I don't need to pay them a substantial compensation for the mistake I resolved.

Thank you and will very much appreciated if you can reply please,

This I will say, there's protection for tenants but where is the protection for landlords when tenants use the law against them and try to folk out settlement fee before going to court?

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David 5th April, 2016 @ 11:17

Hi Ali

I know you do not feel you should have to pay compensation but the law says a Judge finding you in breach HAS to charge you between 1 and 3 times the rent, if you look at the original law they USED to be forced to charge THREE times the rent if deposit was not protected within 14 days

"(4)The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order. "

legislation.gov.uk/ukpga/2004/34/section/214

So this act came out in 2004 and if you look at the pink bit at the top you can see that there are amendments in 2011 to S214 brought in by the localism act

s. 214(1A) inserted by 2011 c. 20 s. 184(5)
s. 214(2A) inserted by 2011 c. 20 s. 184(7)
s. 214(3A) inserted by 2011 c. 20 s. 184(8)

These are detailed here

legislation.gov.uk/ukpga/2011/20/section/184/prospective

Even this is not the limit of changes, any case law that is heard in superior courts can impact, for example Superstrike and then last year we had the Deregulation Act.

This is why if it gets legal you need a lawyer, not just any lawyer but a housing lawyer.

So the first thing you need to do is temper the expectations of your tenant and their guarantor.

You write to them, saying that you have taken advice and sorry but they are misinformed. Whilst it did indeed USE to be 3x the rent, this was changed by the Localism Act 2011

(9)In subsection (4) (amount of penalty payment)—

(b)for “equal to” substitute “ not less than the amount of the deposit and not more than ”.

So the following paragraph

(4)The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

became

(4)The court must also order the landlord to pay to the applicant a sum of money not less than the amount of the deposit and not more than three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

So as you can see a Judge will make a decision based on the circumstances that are presented.

I fully accept that I made a mistake in not checking (I thought it had been done by a 3rd party) but a Judge will see that your deposit is now in a scheme and I have complied, albeit late.

The Judge will also see that you are 3 months in arrears which entitled me to claim against you and the tenant for unpaid rent under section 8.

There is nothing in the law that says you may withhold rent for a claim that has yet to be heard by a Court.

I want to resolve this matter amicably and I am prepared to make a full and final settle settlement offer, but this must be resolve within the next 14 days, otherwise I feel I will have to instruct a lawyer to recover the unpaid rent and you may if you wish make a counter claim.

I need to inform you that if you fail to accept a reasonable settlement offer it may impact the legal costs you are forced to pay and these costs may be between £3000 and £8000.

So here is my offer:

1. Tenant or guarantor bring rent account up to date within 14 days

2. Tenant keeps rent account paid on time until the end of the tenancy

3. Landlord agrees not to charge the £30 fee per day late rent fee (currently estimated at up to £5400)

4. Landlord agrees to pay the tenant sum of one months rent in full and final settlement of any dispute arising from S214 of housing act.

5. Landlord agrees to provide the tenant with a positive reference subject to the property being left in good condition.

I really hope we can resolve this matter amicably, this proposal is fair and reasonable, it also prevents both parties paying legal fees.

I need to advise you that if we do not come to agreement on this matter within 14 days I will be instructing my lawyer to recover the debt, please consider this a letter before action in accordance with civil procedure rules.

The likely outcome of my taking legal action will be :

A. The Court will order the payment of the unpaid rent

B. It will charge you the Court fees I pay to bring the legal action

C. It will award me recovery of my legal costs from you

D. It will award me the lost of interest and fees in the tenancy agreement that you and the tenant are a party to.

E. It will award you the sum of one months rent and not allow you to recover your legal fees as you failed to accept what is a very reasonable offer.

F. This will all be wrapped up in a County Court Judgement that I will have promoted to a High Court Enforcement against you and the tenant.

You should be aware that failure to pay rent will affect the tenants ability to be housed by a local authority until that rent has been repaid in full.

Also note that a CCJ will impact the ability to get or maintain a good credit record.

I want to assure that I am committed to resolving this amicably but we are close to the point of no return and I must protect my interests.

The only thing in there that is unrealistic is your £30 per day fee, in reality you are only entitled to interest and actual costs incurred. Interest will be in your tenancy agreement probably at 4% above base rate. However, if you have had to borrow from say a credit card to cover your mortgage you can charge that interest too. If your mortgage company has charged you for late payment you can add those fees.

Still it is in the tenants interest to settle, even if they got the 3x rent (very unlikely) it would be swallowed up by by them paying your legal fees. They also lose their reputation.

You have nothing to lose if the Guarantor has the money or a home. By upgrading the CCJ to High Court Enforcement you can go after them and put a charge on their home if they own one.

The only real winners will be the lawyers who get paid no matter what, but you will recover that if you do a S8 & S21 combined. You are at the point of issuing a S21 anyway.

Get yourself a decent Housing Lawyer, what I did not grasp before was that they were 3 months behind, you have to move forward now if they will not settle, it will save you in the end.

If I were you I would do some intelligence gathering now, park near the property, see if they go to work, find out their place of work and see if it has changed. If they disappear you can go there and follow them to their new place.

Do not interact and only film them in public places.

Yours sincerely

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The Landlord 5th April, 2016 @ 11:46

@David

There's no limit. I just posted as a guest and it let me post your entire novel in one comment. Ali's comment was also particularly long, but he didn't seem to have any problems. Could there be a problem with your stupid computer/browser?

In any case, I have consolidated your comments (and removed your hurtful comments towards my website!).

Appreciate all your comments/time, very cool stuff :)

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Ali 5th April, 2016 @ 12:47

Hi David,

Thank you for your reply, am I right that you want me to pay them a compensation of one month rent to them.

Settle this, I am against paying any fees or bribery, where I made a mistake I have resolved it, there is no where to say that the tenant can charge landlord whatever fees they want to settle this. Isn't this against the law?

I will take board on your response, very helpful and write response back to them now. The most they can get is months rent if they go to court right?

Before going to court I will try to settle this but they will need to pay a court fee to file this right?

What are my legal costs? In court?

Thank You

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Ali 5th April, 2016 @ 13:13

Hi David,

If they was to take this to court with rent arrears, would it be in-validate it as I have protected deposits and it was a genuine error.

I always informed tenants what was going on, let my promise. Only part is, I don't agree to payout a settlement as they have not lost anything and deposits is protected. I don't see a reason why I have to pay them money.

what would you advise, then taken me to court or pay a settlement and clear my outstanding rent.

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Advice Greatly Rec'd 5th April, 2016 @ 19:38

Hi all,

Just thought I would provide an update on my situation since my original post on 27/3. I could also really do with a little advice with next steps.

I wrote to my LL confirming I was aware he had not registered the deposit in time nor had he issued the PI in time (although he had then rectified the PI by issuing it late) which rendered his S21 notice invalid. I offered the following terms for settlement:

1. Full deposit repaid immediately (a requirement to then be able to reissue a new S21, however I would comply with the existing invalid S21)
2. 1.5x deposit paid as compensation (seemed a fair and reasonable amount to settle out of court, no court fees/interest etc.)
3. glowing reference
4. check out on the day (even though deposit handed back) just for peace of mind that everyone was happy and he wouldn't try and pursue legal action later for any supposed damages (not that there would be any other than fair wear and tear)

We would then comply with the current S21 and he would not have to pursue court proceedings for possession (which he would not win, given the S21 is invalid) which would delay him obtaining possession and what the council advised us to do.

He has responded, usual rubbish that it was an administrative error he feels let down by the person who should have known their responsibilities etc. etc. that he is extremely appalled by the general publics attempts to seek personal financial gain by exploiting technical breaches of the law (his words) and it will be part of his robust defence to the judge to consider both sides, motives behind the claim and the fact I have only just discovered the mistake.

He goes on to try and claim we have breached the agreement by paying rent late every month (due on 24th as per tenancy but I am paid on 25th and I told him this when we moved in and he was fine with us paying on 25th - since moving in in 2013 he only called us once for late rent as my wife forgot to pay it). He continues that the court can aware between 1-3x but they can appeal the decision and until all avenues of appeal have been exhausted judgement is suspended, they also claim they will apply for a hardship order to pay in instalments and reiterates court action can take months-years.

He counter proposes 1x deposit as compensation plus the deposit paid back (minus any agreed deductions) once we have left. He mentions my wife was a childminder/nanny and as such what I said about leaving the property in a reasonable condition when we leave and even if we didn't him not having a deposit would not impact his ability to pursue us for damages if relevant doesn't allay their concerns, he also says we agreed on the inventory to redecorate the property throughout.

Finally he has said if we do opt to remain through court proceedings he is upping out rent by 1/3rd.

Now I am torn, his offer is not really compelling to settle out of court, the compensation he has offered is the minimum and he wont even return the deposit upfront which he would need to do to reissue another S21 (unless it goes to court and the judge can instead get him to pay it into a scheme which he has done just late). I am concerned he would then try and fleece us for as much deposit as he could to make back most of the compensation he had to pay (although it would be dealt with by the independent scheme adjudicator).

My view is his arguments are weak and realistically a judge would have to award compensation for the late protection and issuing of PI, trying to blame an incompetent administrator doesn't protect him from his legal responsibilities and he should know better (property company has been running for about 50 years and has multiple rental properties) so he should really know his legal requirements and ensure they are adhered to. I also think he has rejected a more than reasonable offer of settlement.

Do I:
1. Just accept and move on
2. Go back and try and renegotiate
3. Go back and say my offer was not for negotiation, he either accepts it by x or I pursue court proceedings

Would really value peoples input here. Also, if I did stay past the invalid S21 (when he now proposes a rent increase) what happens if I refuse to the increase?

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Freddie 5th April, 2016 @ 20:12

Good Lord, what incredibly long posts! No way I'm getting through those.. time to unsubscribe from this thread. Thanks, it's been helpful! Bye

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David 6th April, 2016 @ 22:20

@Ali

You can be against all you like, the law is the law, he is entitled to 1x the rent minimum and 3x the rent maximum, plus the return of his deposit less any damage (decided by DPS) plus potentially his legal fees which may be £3k

You made a mistake, ignorance of the law is not an excuse accepted by any Court.

Do not consider it settling, consider it a way to resolve the matter with the least grief.

If he does not settle and does not clear arrears, then you S8 and S21 his arse, the Judge MUST award him the 1x rent, it is right there in the Housing Act, but he has discretion on costs and you MUST use a decent Housing Lawyer. They will charge you £250 per hour and they will be worth every penny because they know how to ask the Judge to make Tenant pay your and his own costs.

There is NOTHING in law that invalidates his claim to ASK for between 1x and 3x, the act says a minimum of 1x if not protected in an approved scheme within 30 days, did you protect it within 30 days, no, so accept it and look for best way out.

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David 6th April, 2016 @ 23:39

@Advice Greatly Rec'd

He can feel let down and go cry to his priest or therapist but the law is the law.

The Law is he is liable, some Judges work on a formula

Deposit not protected at hearing = Max 3x, S21 invalid, costs to tenant

PI not issued at hearing = 2x, S21 Invalid

Deposit protected late and PI issued late, 1x deposit S21 valid if issued after these were done (and new 2015 S21 requirements)

As I mentioned above they do not like arrears at the hearing or paid just before in which case they slam the tenant but still have to award S21 1x. If the tenant pays late every month they do not care if it is caught up within reasonable time.

The Judge WILL consider both sides but guess what, the law is the law, look at post to Ali above where I quote the passage, note the operative word is "MUST". If a Judge did not award it he would immediately give tenant right to appeal, costs would triple and the Judge's rep gets hammered.

So he admits he made the mistake, great, evidence you put with your case, albeit that failure to produce 30 day paperwork will suffice.

Judge does not give a hoot about late payment of one day; legally it does not get counted as unpaid for at least 14 days. This is something a lot of tenants do that pisses off landlords, but it comes with the territory.

They can't appeal unless a point of law has been broken, if the Judge awards 1x or 3x he has followed the law. If he awards nothing when a deposit has not been protected then you get right of appeal, you should ask for it right there right then, even if a Judge said no, he can be overruled with a simple form, but a circuit Judge will decline appeal for landlord and still take the Court fee for his trouble.

Courts are not playgrounds, you can't go back just because you do not like the decision, bad breath or cheap suit of the Judge. It has to be a point of law that was not followed correctly. In such cases the person bring the appeal, will have to pay fee and pay for digital transcribe of case and that is just to be considered for the appeal.

Really! What planet is he on, he has a handful of properties, the Judge will just laugh, tell him that as he is so incompetent a landlord best to sell property, you would ask Judge for permission to put a charge on property until debt is paid and register it at land registry.

Court action is pretty swift on these types of cases, 6 weeks, it is called an accelerated procedure.

Only you can determine what is acceptable but my approach is that each negotiation attempt costs you time and money, so I give less each time.

I would say that deposit must be paid into scheme immediately and PI issued; that is the law, you took an inventory, photos and video when you moved in and you will do the same when you leave. DPS have a system for deciding, they love video evidence. Even if you did not have it on coming in they will accept outgoing evidence, post it on Youtube under hidden link.

Next I would say that as he is being intransigent, vexatious and wasting your time you withdraw your previous offer, your new offer is 2x deposit and he issues a new legally valid S21 which is the law, you will leave when it expires. The original S21 is invalid already and as such is rejected, if he wishes to waste the Courts time by starting accelerated possession using that S21 you will simply ask the Court to reject it and award you your costs to defend it (typically £500 minimum) although I got £2k once for someone who earns a decent whack.
Being a nanny is not mentioned in the housing act so irrelevant, it does mention "quiet enjoyment of the property" which basically means you can do what you like as long as you do not disturb others and you are entitled not to be harassed.

DPS have an arbitration system and it is exactly because of cunts like him the deposit protection was made law.
OFT356 unfair contract terms, basically it recognises that a tenant is in a weak state when signing a tenancy agreement so it provides guidance about what is fair and what is not.

If he wishes to push it he can request it of the DPS who will only say you should leave it in the way you found it. they take into account fair wear and tear, length of tenancy but also that it is the Landlords property, that he would be reasonably expected to redecorate every 2 or 3 years or when a tenant leaves if they want to maximise rent. As long as it is clean you should be fine.

He is not allowed to increase rent like that, he has to issue S13 proposed rent, see note 3 onward on page 2 of this form on Gov.uk website

bit.ly/has13

basically you go to tribunal, show a copy of his response and they note it. Also speak to local authority about his behaviour, say that he is not a fit and proper person to hold a license to rent property.

This is coming pretty close to harassment, I hope he did this by email or letter so you can present it to Judge. They will take a very dim view of this intimidation. If he did it verbally write back quoting everything he said and your response.

Forget the deposit upfront, that needs to be paid into a scheme and released by DPS after you leave, that is best for you.

You now make you offer full and final, his S21 is invalid and rejected.

Any attempt to increase the rent must be done via the S13 and would be referred to tribunal and local authority

You will now settle for 2x deposit sanction paid within 7 days. That will give you your rent to pay back to him for the 2 months notice he needs to give you to issue S21. Of course if that is not legally valid for any reason you reject it too in 58 days. E.g. if he issues S21 but the PI has not been done right.
He can't fleece you really, the DPS decide when there is a dispute.

Understand a few things, you can start proceedings with 2 forms or you can counter claim his S21 if he is stupid enough to try and take it to court without issuing a new one. You would ask the Court to dismiss but to hear your S214 claim. Make sure you do both forms, he will be paying your court fee in due course.

Start by giving him 7 days notice of your intention to start proceeding, a nice touch I do is to complete the forms and email them to him so he can see you are serious.

Tell him any further action will be taken by solicitor and you will be seeking recovery of their costs at whatever stage.

Use a solicitor, write the letter before action and ask them to send it on their letterhead. Add their fee to any settlement they reiterate and offer.

If this idiot has not paid it into a scheme and is trying to intimidate you the Judge will give you 3x and make him pay your costs, do not forget to add the cost of a days work to attend court, your travel costs etc

The sting for him is he will be looking at £3k of costs and unlike Ali above he is being nasty, he will lose.

You are right about the number of properties and he should know better, make sure you mention it in your reply.

Say something like, “you are supposed to be a professional landlord with over 25 properties, so I am shocked at your attempt to intimidate and harass us. You derisory offer is rejected and in consideration of your behaviour my previous offer is now withdrawn, null and void. I am now prepared to make a revised full and final offer as detailed below.

He really does not have a leg to stand on, it is just a matter of whether he wants to settle or pay legal costs for both sides.

No increase in rent, if the tenancy expires a stat periodic is created, he is not allowed to harass you, enter the property without mutual consent (call police if he does, say he had already made threats and your wife is scared). He will get told in no uncertain terms that if he repeats such action they will arrest him, also ask the police to make a note on their records as he owns 25 other properties and probably tries this with other tenants.

If he does any of that your lawyer can bolt on Harassment act breach and he could be in serious trouble.

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Advice greatly rec'd 7th April, 2016 @ 16:47

David, first let me sincerely thank you for your response. After reading its contents several times I believe I have understood the majority of it and I must say I was initially leaning towards rolling over and accepting my LL's somewhat derisory offer just for ease and to see an end to matters. I must say I am now seriously considering further action.

If you wouldn't mind I would really appreciate clarification of a few things to ensure I have fully understood your previous post. To start I will clarify my exact scenario to ensure all of the information within you previous post remains valid:
- deposit paid 8/13
- AST commenced 8/13 and ran to 8/14
- deposit was placed into my deposits DPS scheme 11/13 (late but inside initial term)
- tenancy reverted to stat periodic 8/14
- no PI was issued until 3/16
- s21 issued 2 days later 3/16
- LL (in my eyes) would be considered professional as has been in the business 50+ years and owns properties worth approx. £3.8m (according to last years reports) - I don't know the number of properties he has (I would say probably 5-15, mine is worth approx. 350-400k I would think but no idea about others).

Could you please confirm the following:

1. Is the current s21 valid?
My initial view was no as the deposit was protected late I thought in order to issue a s21 he would need to return my deposit in full (or less agreed deductions) or await the judgement on a s214 hearing (as per s2A of s215). I am wondering now if the dereg act means that because the deposit was protected late (but inside the initial term) when it went stat periodic it was considered protected and thus a s21 now is valid (although he is still liable for the initial late protection s214 claim). Is this right? And if so does it matter that the PI was only issued 3/16 (so not inside the initial term)? Again I thought that as long as it's done before the s21 was issued (which it was) then the s21 is valid.

2. Assuming he amends his rent increase to fall in line with the requirements under s8, what options do I have?
Do I need to pay the increase as I am in a stat periodic, or can I refuse? If so does this mean he has no choice but to issue a s21 and obtain possession?

3. What is your opinion (given the circumstances) on the following approach:
A. Reject his derisory offer claiming a lot of the points you raised: I.e. Cannot appeal if judge has followed the law, court case would be fast tracked so would not drag out, judge would through out his claim for insolvency/hardship and either way I would apply for a charge to be secured against property
B. Withdraw my previous final settlement offer (I sent it without prejudice as full and final settle and also sent a before action letter detailing my case) - I considered my original offer more than reasonable and set the limit where I felt he would have no option to counter offer (he obviously disagreed) at 1.5x comp + deposit paid back in full immediately
C. New offer of 2x as comp immediately and full deposit (less agreed deductions) on vacating the property (I don't think he was keen on the idea of paying it now and it is in the DPS now so I am happy they will act as an independent adjudicator to avoid him fleecing me). Also confirm I will comply with the existing s21 notice/date to avoid him any further trouble of potentially having to issue a new one or persue a possession order if I don't leave.

My view is that I would likely be awarded 2x in court given he should have known better and ensured his legal obligations were adhered to, his excuse/defence doesn't reduce his responsibilities. There is a risk it could be 1x if the judge is particularly lenient on him (especially as it was only slightly late) but I would argue even when they noticed and rectified their error and protected it late they still did not issue PI (presumably to try and cover it over and not bring attention to the error). Even so he has only offered 1x to settle so there is no incentive to accept his offer. He would also have an awful lot of fees to pay if it goes to court which would far outweigh the 2x settlement compensation (even if he feels a judge would award less).

Am I right in thinking I cannot lose as no matter what happens he would also have to cover my costs (I assume the judge would not consider his offer reasonable and try and penalise me for not accepting it and make me pay my own and maybe even his fees?).

I also wonder if it would be sensible to complete the court forms now and send them to him to confirm I am serious with my threat to pursue the matter in court if required.

Your thoughts would be incredibly valued.
Thanks

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David 8th April, 2016 @ 11:36

@Advice Greatly

It is clearer when you lay it out with the dates, when you said "(although he had then rectified the PI by issuing it late) which rendered his S21 notice invalid." I thought you meant he delivered the PI AFTER the S21.

If at the time of issuing the S21 the Deposit has been protected and the PI has been issued (assuming it is valid with no errors) then his S21 is infact valid.

Prior to dereg act 2015 the S21 would have to refer to the new Stat Periodic Tenancy and the deposit would have to be reprotected, but this is no longer the case. So it seems based on what you say that his S21 IS valid.

If you had sued him in 9/14 you would have won as the law stood then.

However, I still do not think you should settle at his offer and I will explain why.

1. His threats to put up rent and generally being an Ahole, when you negotiate with a tenant you have to seek to resolve things amicably and mean it. His response suggests that he WILL try to claw back any settlement out of the deposit, so it makes sense to make the sanction as high as possible.

2. He is the one who broke the law, he is a professional Landlord and the Judge will have little sympathy, especially as he did not issue PI till this year. This denied you of the rights afforded by the act, you had no idea where your deposit was because he did not inform you that it was protected or where it was. Even if you got paperwork from DPS it does not replace the requirement to issue PI. Also some dodgy landlords have been known to try a little trick, they go register an email similar to your own e.g. if your email is CameronD@hotmail.co.uk they go register CameronD@yahoo.co.uk, they also give a different mobile from a sim they buy or do not give a mobile at all. They are prepared to swear blindly that this is what you gave them or they say it was a clerical error. This gives them the power to release the deposit at the end of the tenancy.

So the first thing you need to do is go to DPS make sure it is still protected (he could have said tenancy ended when it became stat periodic, you should be able to log in to DPS back end and make sure your details are correct, you can also ask the DPS if the data has remained the same since it was deposited. The reason I ask is that you sound as if when you got the PI this was the first you have heard of it, the DPS are a cheap lot, I have confirmed in other cases that their policy is to send an email confirming receipt of deposit, however, they only spend the money on an SMS if the email bounces. The DO use the SMS at the end of the tenancy if there is a mobile number.

The Landlords in these cases argue that they did indeed protect the deposit, it was there safe all the time but they made a clerical error or they say the tenant gave them that data, it is very hard for the tenant to prove they did not do something. The clerical error is wiser because if they email the tenant using the correct email it shows they had the correct email, but one even used a different lead tenant, people will try anything!

2. Your landlord wants to sell, he is doing this because he needs the money or wants to invest somewhere else, that means he is in a hurry. If you stayed and it went 3 months prices may change, he may have to accept a lower offer 10K below market so paying the 3x deposit with no Court fees is still a good deal for him.

Now what concerns me here is your local authority telling you to sit tight, I am guessing that they (like me) got the impression that his S21 was invalid. You need to ask then to clarify on writing their advice to sit tight and give them the chronological list of events as you have above, also call Shelter helpline who will go through your case. Ideally get them to confirm in writing by email their advice. Look for errors in S21 and remember to check Dereg act not just old law. Dereg made it not matter about the date served but forms and paperwork changed, if he did it "old school" he may have screwed up, same applies to PI, Dereg act changes that too, but some things only affect new tenancies that started AFTER Oct 2015

If in doubt flowchart it using mind map tool with a IF then ELSE type methodology.

Once Shelter have given you your advice, enclose a copy with your letter to Council, say that you think it is bad advice for you to not leave if presented with a legally valid S21 (they can't ask you to break the law) and as such you would only be prepared to do so if they underwrote your legal costs. Also point out that by responding to what is in effect a legal directive (S21) you would in no way be making yourself homeless intentionally under Government guidance.

So now it comes to how much do you want that glowing reference, my feeling is that it will not be worth much, you should write the reference, not put a date on it and ask your landlord to sign it and return it within seven days if he wants to settle for your new offer (see below).

So let us deal with your numbered queries.

1. Based on the dates it does indeed seem valid, but in need of verification of all the other requirements. Scan it and send to Shelter, you may also be entitled to free legal aid for the initial advice although this may then be referred to a number of law firms some of whom provide a very basic service with low level staff just wanting to apply 8 minutes to the call. LET US BE CLEAR, THERE IS NO OBLIGATION TO RETURN THE DEPOSIT BEFORE THE END OF THE TENANCY. EVEN UNDER OLD LAW THE REPROTECTION COULD BE TRANSFERED FROM ONE SCHEME TO ANOTHER IF IT HAD TO BE REPROTECTED BECAUSE OF STAT PERIOD LAW THAT WAS IN PLACE AT TIME. Landlords never wanted to give it back to the tenant as it alerted them to their mistake.

The initial term is not the issue, 30 days is the issue, he did not comply, END OF, also the PI was not issued till 3/16 so all that time the protection of the act was undermined.

2. No you do not have to pay increase, he has to issue the proposed rent increase and you have to agree to it or refer it. However, my advice is to not remain and obey the S21 if it is legally valid, based on date it is, you need further advice regarding other requirements. Do the ref numbers on PI match those at the DPS, etc

3. I would proceed as follows:

Dear Mr Bastard

I am in receipt of your letter dated 23/3/2016 and I do not appreciate your attempt to intimidate and threaten us.

It is not our fault that you failed to follow the law and now face sanctions, the fact of the matter is that you failed to protect the deposit within 30 days, but also you failed to issue the PI and up to that point we had no idea the deposit was even protected, where it was, or where we could assert our rights as afforded by the housing act, which is after all the whole purpose of the deposit protection legislation. You are a professional landlord and should know better!

To be honest your tone and threats suggest that you have no genuine interest to settle this matter amicably. It seems that you will also attempt to try and exercise terms of contract that are deemed unfair by Office of Fair Trading guidance on Tenancy Agreements 2006, the bible of such matters I am informed.

The DPS and/or a Court will see these for what they are; a blatant attempt to intimidate us and claw back money that you are due to pay due to YOUR mistake of failing to comply with the Deposit Protection legislation.

Considering this I feel that it is pointless trying to agree a settlement with you as you seem to be intransigent and vexatious, however, based on your hostile response I am prepared to make one Full and Final offer of settlement. Previous tenant offer is withdrawn, null and void, as is landlord derisory counter offer.

1. Tenant to leave property at expiration of the legally valid S21.

2. Tenant to leave property in good condition with professional steam cleaning of carpets and washing of any marks on walls but no obligation to redecorate any part of the property. In the event of any dispute the DPS arbitration decision shall be final but this settlement shows intent.

3. Landlord to pay the tenant S214 sanctions of 3x the deposit within 7 days by bank transfer to the following account.

4. Landlord to return deposit via DPS scheme with no attempt to invent new problems, property may be inspected by a 3rd party agent in next 6 days to confirm current state.

5. Landlord to provide written positive reference in next seven days (enlose with message), sent by recorded delivery. I can post one here if you need.

The Landlord saves paying tenant legal fees which may amount to £3k to £8k depending on case. He has been shown to be vexatious and made threats; these can be entered into Court if he has not WP'ed response.

All other stuff is mute in light of S21 being valid, note I did not refer to current S21 but a legally valid S21 in case it is not valid. He will probably want a firm date but it gives you time to get the settlement offer out and then research your DPS account meanwhile.

He rejected your offer so you are under no obligation to agree to it now.

Your offer was reasonable except for asking for deposit to be repaid now, deposit protection is for BOTH parties, it must only be repaid after you leave. He can make claims but a camera is your friend here, film it now, show what things you will fix, then make a video of the things you do, wash down walls (use sugar soap if greasy), fill holes, get carpet steam cleaned. :Look at inventory!

You will get at least 2x because of very late PI, potentially 3x with the right Judge because he is professional landlord, especially if there is anything dodgy with DPS emails or phone numbers etc so check them.

You are right about PI but Court only cares about law and intended purpose of that law. The late service of PI means it was done to suit Landlord and not provide you with access and protection afforded by that law. As such he sought to undermine the law which was made to protect BOTH parties. If he was a Landlord with one property or maybe two this might fly but he is a professional with many years’ experience.

It will be you who pays the Court fees because you will bring the action as you will be leaving if S21 is legally valid. He will pay for that and your lawyer fees. Some Lawyers cover this but take part of your sanctions.

Your leverage is the legal fees, use a big firm like Anthony Gold in London, whoever you use make sure they know housing law, do not do no win no fee unless you get 100% of sanction and the lawyers just get their fees from other side. Lawyers will have Solicitors do grunt work and a Counsel provide opinion and attend Court, I saw one Barrister charge £800 in travelling, it was deemed he has particular expertise and client has right to best legal advice, especially when landlord is vexatious.

NO never think you can't lose, it is always possible that a Judge makes the wrong decision but that is why there is an appeal process. What IS right is that the Judge MUST award at least 1x and no more than 3x the deposit, he will almost always award your costs, especially as you have tried to settle but then been intimidated and threatened in response.

I always advise to negotiate a settlement, but based on facts and his response I think the terms above are reasonable. He may come back with 2x and you say 2.5 full and final but only if there are no more threats in his response.

In the event you lost the Judge would not be following the law, it is a material fact that deposit was not paid within 30 days nor PI served within 30 days. The variance is there to allow for the gravity of the breach, the PI is the slam dunk for you, was very foolish for him to leave it so long. In the room the Judge may make his decision against you and respond "what say you Mr Aga or ask your lawyer" You respond "with the greatest respect Sir, I disagree with your Judgement and seek leave to appeal", he may be really foolish and deny it but you just file the paperwork and ask Circuit Judge to decide, it costs more and you pay for the Transcript (if available) sometimes they get lost or damaged in which case you do not pay for them.

You can't ASS U ME anything about what a Judge will think, your lawyer will stick to the legal facts, he will say you attempted to settle but were met with a barrage of threats, despite this, you tried again but your offer was rejected with malice.

I think your case is strong enough to forego the forms, let the Solicitor do it as part of his final letter before action.

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The Landlord 8th April, 2016 @ 11:54

@David
Your patience is limited, innit? None of your posts ever get "lost"- but your reaction always implies otherwise!

Can you please just assume your comments get thrown into moderation if a) they're extremely lengthy b) contain outbound links c) contain email addresses.

It will save me from enduring those comments of yours which only consist of mumbling!

:)

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Advice greatly rec'd 8th April, 2016 @ 15:01

@David

Yet again another fantastic and incredibly beneficial post.

I have my work cut-out this weekend digesting it and commencing the tasks you recommend to ensure I have all my facts straight.

A few things I know already, regarding the dirty tricks I know the landlord lied on the deposit protection about when he received the deposit (I think in order to make it look less late than it really was) and he also put my address as his office address (I assume so we would not get any correspondence sent to us), I am not sure about phone/email addresses but don't recall ever getting any correspondence from the DPS so I presume they are all his. I will as you advised also ask the DPS if any information has ever been changed since being set up.

I did check with the DPS and the deposit is protected until 3 months after the tenancy ends so I guess 3 months after we move out (it’s been registered as a stat periodic) so it is covered, they would not allow me to update any details though regarding when the deposit was received/my address etc. so in my initial letter I requested the LL did this (he didn't mention it in his response).

The council did not know/think the S21 was invalid, in our initial meeting I did not even know about the late deposit, I only found out afterwards when studying all the paperwork. Even when I informed them I thought this at a subsequent meeting they confirmed it was valid but I had a case for compensation (I thought from what I had initially researched they were wrong but now know it is valid). Their stance is that a S21 does not mean a tenant is facing homelessness and as such they advise to sit tight and force the LL to obtain a possession order (they even give you a letter confirming this). They say once this process has started to inform them and they will then ramp up efforts to find housing but if you leave beforehand (or at the end of the S21) you are effectively voluntarily making yourself homeless and as such they may no longer have an obligation to house us. They do say they try and liaise with the LL to find ways of keeping us housed etc. but it is very much leave before you face eviction via possession then you voluntary made yourself homeless. I also mentioned costs and they said the court would look at it and say we could not afford to pay them so not to worry. I must say I did think it was very hypocritical of the council especially as they informed us that if you have left social housing previously on bad terms (rent arrears, damage etc.) which we never have that they may not house us, but it is apparently acceptable to force private LL's to pursue legal action to obtain possession of their property.

We were lucky (in a sense) that our 3 month daughter is undergoing surgery to repair a cleft palate which is likely to fall around the time a possession order/eviction may take effect and as such we argued this would be too stressful and they agreed (they even said no judge/or shelter etc. would view under our circumstances that we did it voluntarily) that we could leave at the end of the S21 but not before.

Appreciate a reference is not worth a huge amount but thought didn't harm asking, if you wouldn't mind posting an example that would be brilliant but if it will take you some time don't worry you have already done far more than I could have ever expected.

The offer from my LL was WP'd so I don't know if I could use any of it in court to evidence his threats, motives in respect of trying to recover compensation through rent increases etc. My initial offer was also WP'd although my initial before action letter wasn't.

Is it worth me sending my next offer not WP'd so I can use it in court if required? If I don't WP it, can I still refer to parts of his WP'd offer?

On my terms of settlement, we rented the property straight after my parents (we somewhat agreed to take it on as it was). He agreed for us to decorate the kids rooms as long as we put them back neutral on leaving so I assume we would have to do this on leaving? The house does need a full redecorate as the walls are all marked where furniture has been moved etc. that being said my parents don't think he decorated before they went in, they rented it about 3+ years and we have been there almost 3 so he should really need to decorate it himself if he wants to sell/re-let it. The carpets again really need changing as they are so old, we were going to clean them ourselves with a carpet cleaner as we didn't want to pay for professional cleaning as it is a big house and would cost a lot.

We were hoping to just do the following:
- redecorate kids rooms back to neutral
- fill holes/wash walls/touch up a few areas
- clean carpets ourselves with a carpet cleaner my sister has
- get oven cleaned professionally

I can't find our inventory (which came through a few months after moving in for us to sign and return) I remember amending it to say the carpets were worn in the main walkway areas. He said in his letter we agreed to redecorate throughout on it so I was going to ask him to send me a copy of the one he supposedly has so I know what to expect later. I must admit it was the first and only private place we have rented, we didn't know what we were doing and I understand from your previous posts that this is somewhat to be expected and as such tenants are protected to ensure anything required of them is considered reasonable (getting us to redecorate the whole house even if we stupidly agreed to it would probably not be considered reasonable I assume?).

I am not sure exactly on rights etc. but we also may have cause for complaint etc. about the state of the property/repairs etc. There are ongoing problems with rats, the fence keeps breaking at the back and is only bodged each time which leaves our possessions in the garden at risk plus poses security risks to the rear of the house. We were without lights in the kitchen for 6 months about 18 months ago as rats ate through the cables. Shower has had a leak for years, ended up leaking through the ceiling, eventually they came round to repair but it still leaks occasionally. He basically begrudges spending any money on the property and thus uses incompetent cheap building labourers and always tries to bodge and make good instead of repairing things properly.

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Margaret 10th April, 2016 @ 23:40

Hi
I recently served an S21 on my tenants as I am doing some extensive repairs and refurbishment and need the flat to be vacant. They were not happy to say the least.

Since serving the S21 they have not paid the rent and are now 11 days in arrears. Briefly, I asked them why they had not paid their rent and they said they did not trust me to have protected their deposit and wanted proof that I had. I sent them an electronic copy of the DPC which I had given them (as a hard copy) together with the prescribed tenant information and tenant information leaflet (provided by mydeposits) at the same time as they signed the AST. They are now saying that this is the first they have seen of the DPC and say I did not give them any of the other information either. I cannot find proof that I did give them the relevant information. What is my position? What should I do?

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Advice Greatly Rec'd 11th April, 2016 @ 21:54

@Margaret - I will let a more knowledgeable user reply to your query.

I know you must be able to prove you provided the PI but I don't know how you can evidence this, it could end up your word against theirs which is a real shame as you sound like you complied with the law and are now being blackmailed. Did you get the tenants to sign a copy of the DPS certificate when they signed the AST? - although not specific proof the PI was issued, I would think a Judge would give you benefit of doubt in this instance with a tenant signed certificate.

@David/others - I have drafted my response to LL (using your suggestion David but amending it in places) input/suggestions would be most welcome before I send it tomorrow:

Dear Mr X,

I am in receipt of your letter dated 23/3/2016 and I do not appreciate your attempt to intimidate and threaten us.

It is not our fault that you failed to follow the law and now face sanctions, the fact of the matter is that you failed to protect the deposit within 30 days, but also you failed to issue the Prescribed Information and up to that point we had no idea the deposit was even protected, where it was, or where we could assert our rights as afforded by the housing act, which is after all the whole purpose of the deposit protection legislation. You are a professional landlord and should know better!

To be honest your tone and threats suggest that you have no genuine interest to settle this matter amicably. It seems that you will also attempt to try and exercise terms of contract that are deemed unfair by Office of Fair Trading guidance on Tenancy Agreements 2006, the bible of such matters I am informed.

The DPS and/or a Court will see these for what they are; a blatant attempt to intimidate us and claw back money that you are due to pay due to YOUR mistake of failing to comply with the Deposit Protection legislation. Your feeble excuses of why the deposit was not protected on time does not mitigate your legal responsibilities, perhaps something as important as this should be more closely monitored by you directly to ensure compliance. It also does not explain why the Prescribed Information was not issued when the deposit was finally protected (albeit late), I can only assume this was so as to not bring attention to the error. This assumption is further fuelled by the fact that the tenants contact information provided to the DPS were in fact your own details, obstructing communication channels between the DPS and tenant.

Considering your letter I feel that it is pointless trying to agree a settlement with you as you seem to be intransigent and vexatious, however, based on your hostile response I am prepared to make one Full and Final offer of settlement. My previous tenant offer is withdrawn, null and void, as is your derisory counter offer.

1. Tenant to leave property at expiration of the current S21.

2. Tenant to leave property in good, clean condition. In addition to standard cleaning of the property, we will arrange cleaning of the carpets and cooker and washing of any marks on walls but are no obligation to redecorate any part of the property. As a gesture of goodwill and as per the verbal agreement when we commenced the tenancy we will redecorate the children's bedrooms back to a neutral colour, although we would have no obligation to do so. In the event of any dispute the DPS arbitration decision shall be final but this settlement shows intent.

3. Landlord to pay the tenant S214 sanctions of 2.5x the deposit (£3,500) within 7 days by bank transfer to the following account:

4. Landlord to return deposit via DPS scheme within 10 days of us vacating the property with no attempt to invent new problems. The property may be inspected by a 3rd party agent on the morning of 16th May to confirm the current state.

5. Landlord to provide written positive reference in next seven days (enclosed is a template for completion), sent by recorded delivery.

This offer of settlement is made on the clear understanding that, if accepted, neither Mr X or Mrs Y, nor any associated person or company will take any other action to enforce or pursue this in any way whatsoever and that you will be released from any liability in regards to this matter.

We also request that, if the terms of the settlement are accepted, it is also accepted that there will be a non-disclosure agreement in place between all parties to ensure the details of this settlement are not disclosed to any third party, unless required to do so by law or in order to seek professional advice pertaining to this matter.

If you do not accept this offer, I must point out the following:

1. In the event that we do continue to occupy the property after the expiration of the current S21, the rent would legally continue at its current level of £1,000.00 per calender month unless/until you serve a valid section 13 notice for a proposed increase. Any such notice would be automatically challenged by us for review by the Rent Assessment Committee.

2. If this full and final offer of settlement is not accepted and thus this matter has not been settled amicably by Monday 18th April 2015, then I will have no choice but to immediately appoint legal counsel to pursue this matter on my behalf. I have been informed that typical fee's for specialists in this field are upwards of £300 per hour. In light of this, my legal fees alone that you would be liable for would dwarf the terms of this settlement.

3. The terms of this offer have intentionally not been marked 'without prejudice' therefore I will seek to include this letter in any subsequent court proceedings if required. This will be used to demonstrate a clear intention on my part to try and settle matters amicably out of court, which I must point out has always been my intention although it is proving increasingly difficult given so far I have been met with a barrage of threats.

We look forward to receiving your reply by Monday 18th April 2016.

Yours sincerely

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David 13th April, 2016 @ 13:42

@Advice greatly rec'd

Reply looks OK at first glance, easier if you say what you changed. I did notice you dropped to 2.5, I would have left it at 3 as he is going to push back anyway, by stating 2.5 you are giving up something for nothing. Whole idea is to push back hard then negotiate from that position, every concession has a price, what will he give up for that 0.5?

I would not use the whole dwarf thing or the hourly rate, use the total fees and mention he will have his own.

You NEED to get onto DPS, you need a login for the deposit, call them and ask them to confirm the email and mobile match your own. He can't give an office address he has to give the address of the property being rented, otherwise the deposit would not be valid to protect that tenancy.

It is the email and phone number you want to check and ask DPS have they always been same. As I said they do not use SMS until exit unless email bounces when they send it.

You should always have a receipt of deposit or an electronic copy of bank transaction, cheque, debit, faster transfer.

LET ME BE CLEAR, IF DATE OF RECEIPT REFERRED TO ON PI DOES NOT MATCH A DATE YOU CAN PROVE YOU GAVE IT, THEN THE PI IS INVALID.

If DPS have invalid info, ask them to correct it and provide them with proof.

DPS do definitely allow you to change your mobile and email, but you have to get your login to the tenant portal. They will not just let anyone change it so you have to verify who you are, ask them to send stuff by post if necessary. The LL can't change tenant info, only tenant or lead tenant.

I do not think it makes a big difference about the status of stat periodic, I think the DPS would have changed that status.

BTW You could always do a Data Protection request of all data held on you regarding that reference and what has changed.

I am VERY concerned about what you say the Council say, I would be very interested to know which one it is. You NEED to get them to confirm their advice in writing.

I am telling you now that if you fail to leave a property when a legally valid S21 has been served and your landlord is forced to enforce it, then you will be held responsible for Court Fee and legal costs. The Judge does not award costs on affordability, but on CPR, you will have a CCJ and you may be given time to pay. It will eat up any settlement you get for failure to protect deposit.

For this reason, once you have written advice to stay put and incur legal liability, you need to write to Finance Director of Council telling them you hold them 100% responsible and seek recovery in Court. Explain that by doing this you would actually worsen your position as a private tenant and become more of a burden on the Council/

It has nothing to do with them whether you have a case for compensation, you have up to 3 years to make a claim. It is not a valid reason to not leave a property unless the failure to protect had not been corrected.

Their stance is irrelevant, you are indeed facing homelessness, you need to talk to Shelter.

You can tell the Council that they are welcome to engage the LL in the 2 month notice period of the S21 but to advise you to breach a legally valid S21 is very bad advice and you will be holding them 100% responsible for any losses (including consequential) you may suffer as a result of being forced to follow this advice for fear of being classed as intentionally homeless.

They are just trying to delay their obligations, the fact is when you present yourself there is a period of assessment and your child makes you vulnerable while they decide if you are intentionally homeless, that process is subject to appeal and if I they continue that advice I would involve the press.

A legally valid S21 in effect becomes a possession order when it expires, what changes is the enforcement of that order. If you were in arrears on a S8 it may not make a lot of difference in costs but on S21 alone it will add thousands.

Advise the Council that if they want to engage with the Landlord then they should do so now, but he has told you that he is selling and so has no intention of extending the tenancy.

It will help your position down the road if you have paperwork from Landlord telling you why he is asking you to leave, i.e. because he wants to sell. We see a lot of Landlords trying to stick it to former tenants when they have been on the wrong end of a S214 claim by saying they were antisocial or did not pay rent for 3 months. Golden rule of S21 is to keep rent paid, even if you decide to remain, pay your rent.

This dilemma of Councils telling tenants to stay put is covered here:

blog.shelter.org.uk/2014/01/the-tenants-trap/

They are however in breach of Guidance but not legally compelled until you are evicted.

The guidance referred to is here bit.ly/lahguidance

A letter to Finance Director, fires a warning to Council that you may take action against them, CC to Chief Exec and Your MP. Go to a Surgery with your MP and ask them to intervene, say you do not want a CCJ nor to become dependent on social housing for life because they are not following guidance.

Although the letter from landlord is WP's you can always refer to it in your response paragraph by paragraph, in a letter that is not WP'ed. They should object but if papers are filed then they get read, so the judge knows. Also he may WP the letter but is a material fact that you tried to settle, you can then say he made threats, if asked to substantiate you show the doc, again he objects but damage is
done. You can't unsay things

Yes you have to return room to neutral as was an explicit verbal agreement. However, Landlord did not redecorate for 6 years, so has a reasonable expectation to have to do so. I would not mention damage is due to moving furniture, in fact I would recommend you polyfilla any of that, same for pic holes.

Cleaning yourself is OK if you have a receipt for a rug doctor from Tesco or similar. DPS will want to see evidence, video of before and after good too.

Inventory should be done at beginning of tenancy and exit, not 3 months later. He may be confusing state of property when your parents had it.

The past is the past, you are in S21 now.

I STRONGLY SUGGEST YOU CALL SHELTER AND/OR GET LEGAL ADVICE, make your offer to settle and try and sort this out amicably. I would not take the legal action against him until you are out. Any award may impact your financial position with Council. They can't compel you to take action and you can explain you can't cope with the stress and are worried about your daughter and her operation.

You have 3 years from the moment you realised he did not comply with the law.

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David 13th April, 2016 @ 15:40

Hi @Margaret

You did not say how long they have been there, it is ALWAYS better to write to tenants or better go see them to explain why you have to issue the S21, e.g. you have been informed by your insurance company that works need to be done after a gas explosion 5 door down, or due to subsidence or whatever.

An S21 out of the blue is a shocking document.

So there are a few things you can do, write down a diary of events to show you have a clear recollection of exactly what happened at the time.

E.g. the viewing, subsequent phone calls, show a receipt for the deposit at the DPS, remember they are always behind in processing so some parts might reflect that but not the actual date they say they got it, if you downloaded the PI doc, look at file properties and screen snipe them as a digital footprint. It just shows you did what you say you did at the time. (Right click doc and choose properties, it should show date created, modified and accessed) remember to look at original you downloaded not copy in email.

You need to show dates and TIMES match up, for example you can't issue a PI if you have not yet protected deposit as you will not have the reference. If you can show a chronological series of events that match the dates you alege things were done it shows evidence.

Did you have anyone with you, did they?

Landlords need to use multiple ways to deliver and get receipts. I always suggest this process

1. View
2. Agree to take property and take deposit 3 days before start of tenancy (can be anywhere).
3. Prepare paperwork, refer to it in tenancy agreement with proper DPS ref number and refer to PI form, (+ from 2015 EPC, Gas Certificate and new "How to rent" attached)
4. Have two copies and get them to sign each attachment and pay advance rent.
5. Have your smartphone on in your pocket with voice recorder, make you say "here is your tenancy agreement, note appendix1 is your Deposit Protection Certificate issued by the DPS, Appendix 2 is your Prescribed Information that confirms where your deposit was protected on 8th April 2016 and the reference was ABC1235, Appendix 3 is your Energy Performance Certificate, Appendix 4 is your Gas Safety Certificate which you can see is current, Appendix 4 is a Government document we have to give you called "how to rent" and Appendix 5 is our inventory. I need you to sign both copies of each of these as well as the Tenancy agreement itself."

For now I would write saying that you of course refute his assertion that he was not served with Deposit Protection and PI and can only imagine that he is having a lapse in memory.

Say that you are well aware of your legal deposit protection obligations and any attempt to suggest that you had not complied will be vehemently defended and we have evidence to that effect. In such a case we would of course be forced to appoint solicitors and legal Counsel then seek our costs from you.

Remind them that not paying rent leaves them liable under Section 8 for a more prompt eviction and paying to legal costs which may appear as a CCJ and affect his ability to get or maintain credit agreements.

How did you give them the MyDeposits and PI info in the first place, can you confirm it was not just by hand or post?

Your position is that he is probably trying it on or you did not provide the info, at this stage you give as little away as possible and regard it as a game of bluff.

What matters to most Judges is that the deposit was protected, the fact that you were able to email electronic copies so quickly goes some way to help. If the digital signatures of those files on your hard disk are of the era of the beginning of the tenancy you can use that.

You should also contact MyDeposits, ask them if they can check their access control logs to determine if the tenant has ever logged into their portal or checked the existence of the protected deposit. If tenant logged in 2 years ago and used the reference it shows they had the info!

Make your enquiries with MyDeposits by email, use their replies in your legal response.

No threats, no promises. No proof of facts at this stage, just refute his allegation, remind him of his obligation.

If deposit was protected is becomes a my word against yours case, usually 1x rent awarded and return of deposit by scheme in due course less deductions via MyDeposits for which you will both be able to make a case.

So risk analysis is that to get sanction he has to file papers or issue counter claim to your S21. If he goes to Court with arrears he is almost guaranteed to lose. A S21 is not an excuse not to pay rent. Look at wording of S214, it says the Judge has to believe deposit was not protected and PI was not issued. You can show deposit was indeed protected within 30 days, so 1-0 to you, for PI the Judge has to consider situation, a tenant has breached agreement to pay rent, said he did not get deposit info but evidence is it was promptly protected. So who does he believe? How do both parties behave.

If you write initial letter refuting his allegation and ask him to pay rent in accordance with tenancy agreement as Step 1.

Step 2 if he does not make any payment with 14 days is a letter before action of Section 8 proceedings.

If rent is paid he will no doubt say he is seeking 3x the deposit blah blah blah, if and when that happens you again write saying you refute his allegation. You caution him that any such action would be defended by a solicitor/Counsel and you would have to seek recovery of your legal costs for what is a frivolous action

Say something along the lines of

"If I had indeed made such a mistake I would seek a fair and reasonable settlement, however, as I know with absolute certaintly that I did indeed protect the deposit within 30 days and provide you with the prescribed information within the same period, there is nothing to settle. I have cautioned you of the legal ramifications of making this false assertion, I have the evidence and this will be filed in response to any legal claim you make. I really want to avoid any legal dispute with you but I will not be threatened or intimidated by the suggestion of a false claim. If you wish to proceed with your false claim then please do so at your own risk.

I can understand how it can be difficult for you to remember what you were given and perhaps you saw something online that suggested I was at fault, but I can assure you I complied 100% with my legal obligations and the Judge will see that."

If he proceeds, maybe via a lawyer or 3rd party, rinse and repeat your previous letter disputing the facts of the matter, caution that if they proceed it will be seen as vexatious pursuit of a frivolous legal action which will be defended vehemently with cost recovery sought. Say that as they are aware deposit was indeed protected (under reference ABC123 with My Deposits) and PI provided in accordance with legal requirements.

Say that you are a busy person and have already spend time providing clients with copies of paperwork and that any further attempt to extort money from you will be defended by solicitors and Counsel.

If they wish to pursue the matter further they should file the prerequisite Court papers at which point your Solicitor will file a dismissal and counter claim

Basically it is poker, they have to pay to see your cards, they have seen community cards (your previous email).

So at At this stage do not provide evidence, just letters refuting facts.

BTW never give a copy of your certificate if it may have details of how to access landlord portal.

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Advice Greatly Rec'd 13th April, 2016 @ 20:12

Hi David

Again thank you for taking the time to provide information and advice. I issued my letter yesterday as I wanted to give Monday 18th as the deadline for a response, but did make a few slight amendments.

I took the part out about "This assumption is further fuelled...' This was because I called Mydeposits who confirmed they had my correct phone number but no email. They confirmed no amendments to my info had been made and that they do email confirmation once the deposit is protected if an tenant email is available but only SMS if the deposit becomes unprotected. Regarding address it had the let property address but the landlord provided an alternate tenant address which was conveniently his office address. I am confident and would be happy arguing the matter in court that he knew that they email confirmation regarding deposit protection and as such intentionally omitted my email address (which he had as all correspondence was done by email) to ensure I would not receive the confirmation and thus be highlighted to the error. I also believe this is the reason behind falsely giving his office address as an alternate tenant address (I am surprised the DPS accepted it) and only provided the correct mobile number as he knew no correspondence would be sent via phone. I also think it is why he registered an incorrect date the deposit was paid so as to ensure if I searched to check it was protected I would not get a hit with the information input.

I don't think my deposits have a tenant portal but I will check, they did update my address and email when I called but again confirmed I could not update the date the deposit was paid myself.

Regarding the 2.5X I did this as I felt 3X would have possibly caused the LL to effectively refuse any negotiation and effectively say: see you in court. (I didn't mean to cause any offence to your suggestion) Although I have no problem pursuing the matter in court if required I would much rather the added stress of a court case at the moment. I also thought going from 1.5x compensation and deposit repaid immediately to a counter of 1x compensation and deposit repaid on vacating the property to suddenly 3x compensation and deposit repaid on vacating was a big jump. I hoped 2.5X might be a figure he would accept (although given his last letter I doubt it).

Regarding the council info, we were given a letter when we saw them, I will write the important info from this later when home if you would like to know the exact wording.

I don't think we need to worry too much about what they said though as luckily due to our daughters operation they did agree that we can leave at the end of the S21 so we will be complying with it.

I am ensuring rent is up to date (other than LL claiming its a day or two late each month due to me getting paid a day after its due) so he will have no grounds to use unpaid rent against us if the matter does end up in court. We will also leave at the end of the current S21 as it appears valid (unless the PI isn't because of the incorrect date of deposit). Also what is strange (but I assumed was the norm) is the PI itself appears to be a generic one my deposit use which a lot of the info simply states to refer to the certificate which was also enclosed. The certificate is what has incorrect info in the date the deposit was paid. That being said we just want out of the house now to be honest so are happy to leave at the end of this S21 (near the end of May).

Financially any settlement shouldn't impact council position as far as I am aware. As long as we don't have over £30k savings (that was all they wanted to know when we inquired for housing).

I will read the links you posted when I get home as well.

Regarding cleaning/decorating I will get receipts for the carpet cleaning solution needed (my sister already owns a carpet cleaner which we will use to reduce costs) and complete detailed before/after videos and pictures as you suggest. We may have stupidly verbally (and possibly even in writing) agreed to redecorate the whole house on leaving as we were naive, am I right in thinking under the circumstances etc. that this wouldn't be considered reasonable and as long as we fill all holes, wash walls and touch up any bad areas this should suffice given the LL himself hasn't redecorated at all for at least 6 years?

We suggested in our letter that the they send an agent if they want the Monday after the weekend we plan on going to inspect current state. We then plan on doing all the bits required that week and having a check out appt the Friday before the S21 runs out on the Monday. That way if on Friday they are unhappy at something we have the weekend to rectify and can then hand keys back on last day of S21.

Regarding inventory we had a walk through of the property when moving in (as parents moved out same time so it was effectively one visit checking them out and us in) and LL made notes I believe but I don't recall singing an inventory. If I recall we received a copy of the inventory through some time after which I made a few amendments on and signed and returned.

I will call shelter as you suggest, I also emailed a specialist in this area from the firm you suggested last week and asked for his fees. I am worried that appointing them would mean I would need to underwrite their fees and possibly pay something upfront in case I either lost or won but didn't get a costs order, this is what concerns me most as the fees would cripple me and make pursing the matter pointless.

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Advice Greatly Rec'd 13th April, 2016 @ 20:25

@David

After reading the links you supplied I particularly enjoyed the part in the guidance as follows:

'Each case must be decided on its facts, so housing authorities should not adopt a general policy of accepting – or refusing to accept – applicants as homeless or threatened with homelessness when they are threatened with eviction but a court has not yet made an order for possession or issued a warrant of execution.'

At our initial appointment it was very much a general policy, we were given a generic template letter they give to all people and nothing seemed individual to us or our circumstances.

It goes on to follow:

'The Secretary of State considers that where a person applies for accommodation or assistance in obtaining accommodation,
and:
(a) the person is an assured shorthold tenant who has received proper notice in accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession;
and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the accommodation beyond the date given in the s.21 notice, unless the housing
authority is taking steps to persuade the landlord to withdraw the notice or allow the tenant to continue to occupy the accommodation for a reasonable period to provide an opportunity for alternative accommodation to be found.'

Which corroborates everything you have said in that it would be unreasonable under the circumstances to force us to remain past the end of the valid S21. I will make reference to this in any correspondence with the council if they do insist on us staying past the S21 (although as confirmed they do appear to now be happy with us leaving at the end of the S21 due to our daughter).

I will scan a copy of the generic letter we received tomorrow at work and post a link to it (assuming the site owner is happy with it as no doubt he will need to approve the post)

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Margaret Debolini 15th April, 2016 @ 08:34

Hi David

Very many thanks for your time and advice. I have the receipt for the DPC and will check the digital signatures of the documents and take it from there.

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Ali 19th April, 2016 @ 00:08

@David

Hi David, I just wanted to say thank you for providing information on how to deal with the situation I was having, in the end I have settled on one months rent which was a huge financial loss but a lesson learnt for me to protect deposits instantly and chase up.

Thank you for providing the information on helping others too as well as me, you clearly know the legal implications of how this should be put right.

Keep going on here, doing fantastic job in helping us. In future will contact again if I face any similar any problems.

Once again, thank you for the support David and hope too resolve any new matters raise in future but I hope not :)

Thank You,
Kind Regards,

Ali

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Surfey 20th April, 2016 @ 17:49

I let my property to a tenant who didn't pay a bond up front. They paid it on an as and when basis, so it took months to pay.
I didn't protect the bond for some time but did eventually pay it in to the DPS in full.
The tenant has moved out, and part of the bond has been returned as agreed by the tenant through the DPS.
I thought that was the end of the matter.
Now they are threatening me with court action for non compliance of protecting the bond within the 30 days.
Surely the tenant can't do this.

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David 20th April, 2016 @ 20:19

Thanks @Ali

Just happy you got it resolved.

I have seen Landlords AND Tenants on the wrong end of £8500 of legal fees, it is never simple and lots of variables.

You paid the minimum so you got a good result and you learnt a good lesson.

I posted above the order of tasks I recommend, particularly, taking the deposit 3 days before tenancy starts and protecting it immediately, then getting tenant to sign appendix A etc when they move in.

I say to tenants and landlords alike, take video when you move in and out

I also suggest to Landlords that they do not piss tenants off with deductions for cleaning carpets and other "cost of doing business" or "wear and tear" things.

At the same time I say to tenants "leave it as you would like to find it, fill holes you made, clean the kitchen and bathroom as if you were subject to a military inspection, there is no excuse, you can get all kinds of strong cleaning materials in pound shops. Also, clean as you go, then have monthly proper clean as you will make less work for yourself later."

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David 20th April, 2016 @ 21:26

Hey @Surfey

The scariest word there is “eventually”.

Technically you could argue that the deposit was not received until the last payment was made but I get a sneaking suspicion that "eventually" was not within 30 days of last instalment and that you also failed to serve PI within same 30 day window.

You did not say whether it was a really long tenancy (pre 2007) which may help a bit although deregulation act firmed that up too.

I note that you say "part" of bond which suggests they did not leave it bright and shiny so you felt a deduction was due. This can often be the "try it on" trigger for some tenants. If it was a long tenancy, unless they wreck the place I figure you have to expect to fork out to restore a property to former glory just to get above average rent.

The tenant can indeed do this if you did not follow the law which says you have to protect the deposit within 30 days of receipt and to issue them with Prescribed Info within same 30 days.

Now it is not all bad and there are ways to reduce costs which are set by law at between 1x and 3x the deposit plus the return of the deposit.

So how do you reduce costs, well if you can't show you did indeed comply within 30 days and have evidence to prove it; then you negotiate!

So the law is worded cleverly, it used to be always 3x rent if you did not protect within 14 days, but was relaxed by Labour Gov to be at the discretion of Judge to "believe" it was not protected and for her to vary the amount based on circumstances. However, she MUST award at least 1x if you do not have evidence you did both tasks within 30 days. It is likely she would award costs for Tenant too.

However, there is a conduct in Courts called CPR, it is all about being Civil and provides procedures and rules that need to be followed.

So if one party says your S21 is not valid and rejects it but refuses to say why they believe it is invalid, thus forcing you to take legal advice it can impact their award or charge of costs.

It is the same for negotiation, if you can be seen to be this super sweet guy who makes a fair and reasonable offer but the other guy says "stuff it I want 3x rent and to entertain your wife on alternate Thursdays, or else I am taking you to Court" then the Judge will take a dim view. In fact if you offer what they are likely to get they will likely take a dim view as it wastes their time.

As I have said in previous posts it is a bit like poker, if a tenant has a strong case and a landlord who breaks this and other laws the award is likely to be 3x.

On the other hand if the deposit was protected, albeit late and not a week before the end of the tenancy, then it mitigates it. This is especially true if the landlords only own one property and seem like "nice people".

So in your position (assuming you are guilty) I would say it depends on the relationship you had with the tenant. If you got on well with them then a friendly "without prejudice" (can't be used against you in Court) letter saying

WITHOUT PREJUDICE
"Hey Pete, I received your letter today and to be honest I was a little disappointed, I felt we got on well and so to have this attempt to grab money when any failure on my part was caused by my generosity in allowing you to pay the deposit as and when you could afford it, is somewhat churlish on your part.

I am writing to ask you to seriously reconsider asking me for money for this.

If you don't I will have to take legal advice and decide on the best way forward.

If you want we can have an agreement for you not to proceed and I will as a gesture of goodwill write you a glowing reference which in today’s market is worth way more than you would get from such a claim.

Best regards

Surfey"

If that fails or you did not part on good terms then it comes down to offering a settlement. There are a few examples in previous posts above.

In your case it comes down to saying you wish to settle matters amicably but will not be held to ransom over what a Judge will see as an oversight with much mitigation due to the free credit offered.

Your opening bid is to pay them £300 plus a glowing reference as a full and final settlement of this matter. They will probably come back with a higher number; they may have been misinformed that they are entitled to 3x the deposit. In such cases you point out that the Housing Act gives the Judge discretion and does not necessarily award costs if tenant has not accepted a fair and reasonable offer.

You could increase your offer a bit, to say £500, still with the reference, but your high point has to be 1x the deposit as that is what a Judge is likely to award in your case. You could then ask the Judge for each party to pay their own costs (including Court fees) as you made every attempt to settle the matter.
If you failed to tell tenant where deposit was protected until a week before tenancy ended then you could be looking at 2x.

Many tenants are happy to have a go at writing to a landlord requesting money for such breaches, a smaller proportion will use a no win no fee lawyer but depending on firm they risk losing their award. Some will do an assessment of risk/reward and decline them.

So it comes down to the size of your and your tenants balls, nothing is guaranteed, you can get weird Judges, you can even get Judges who say "I believe the deposit was protected and am finding for the Landlord ". There are maverick Judges who do not care about appeal (very rare). The tenant then has to appeal and then the costs go up a lot, they can appeal if the Judge does not award at least 1x if the evidence shows deposit was protected late. The tenant may not have money to appeal, they may forget to ask for permission to appeal in which case they have to ask a circuit Judge for permission to appeal and that takes forms and money.

I say all this just to let tenants and landlords alike know that the last thing you want to do is go to Court.

You want to make a strong case for the settlement offer you make or respond to.

So if you are a nasty toe rag who enters your tenants home without mutual agreement or you fail to carry out repairs, gas safety checks and generally have to be told by the Council to repair your money pit then chances are a tenant will use that to tell their side of the story.

On the other hand if you are a nasty toe rag tenant who never pays rent on time, thinks your Landlord is called HSBC or Barclays, you do not keep the place clean, you damage the walls, break the appliances, upset the neighbours and do not give a shit about much at all, then the landlord will mostly describe some of that to get Judge on side.

The Judge is only interested in the Law, but they are human, they can have a kid in Uni with a rogue landlord or they may have been a landlord and have seen a nasty tenant.

In your negotiation you are only interested in the Law and the likely outcome. If you can get that same amount by settlement so much the better.

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Med 25th April, 2016 @ 07:16

I rented by property to a couple, through an agent. They ran into domestics and rent was not paid which eventually lead to the wife suggesting the husbands deposit be kept. And he be removed from the agreement. The agent somehow got a second deposit from the wife and as rent was still owed to me I chased him up and has since disappeared. Left with no deposit and mortgage outstanding, the wife and I agreed to a new contract. I failed to protect her deposit as I was out of pocket and used the money to cover the mortgage. She was later mate aware of this. Her contract is an ongoing one. She has been late on several occasions and is currently in arrears.
What are my best options and liabilities?

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Arty 25th April, 2016 @ 12:33

Hi !

I'm tenant and seeking for an advice.

I am in situation where my estate agency / landlord tries to take my deposit for cleaning carpets, wall refurbishment etc. ( I have moved out of property now, tenancy started of 08/2014,ended on 08/04/2016

In the very beginning I received an e mail from estate agency to tell me that repairs needed at property and the total deposit held is £695 and repairs will cost more that that - around £950. The tricky point is that I feel that estate agent has not protected my deposit in full. My original deposit was £695, but during my tenancy Agent requested additional £200 for having a cat at the property. I have paid it via phone and can prove that payment on my bank statements.
When I checked on TDS website it's clearly visible that deposit protected is £695. (not £895 )

After challenging agent where are my £200 deposit they have replied that they have it and my deposit is £895.

I have agreed only £95 to be deducted off my deposit, agent then has contacted landlord and today I have got an offer from them. They offer my to pay £200 pet deposit as a gesture of will to settle this case. They are still willing to take another £695 off my deposit for repairs.

Can I challenge them and ask for compensation for not protecting my £200 pet deposit?
Can I challenge them for compensation for full amount which is £895 or only £200 which are not protected by deposit scheme.

P.S When I log into TDS website and check the certificate , there comes up a message ' This agent is no longer using this protection scheme and is already arranging another things to protect your deposit. Please contact your landlord to understand your situation,

Please advise as soon as you can !

Thank you

Arty

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David 26th April, 2016 @ 08:57

@Med

Let this be the last place you admit to that story!

It makes you look as if you took 3 deposits from this woman!

You raise so many questions so let me walk through your post and ask for some clarification:

You started a tenancy with a couple via an agent,

Q1. You did not say whether that deposit was protected in an approved scheme?

Q2. How much arrears?

Q3. What was rent amount?

The wife can't "suggest" the husband’s deposit be kept, she has no authority by herself; there are three parties to the agreement. You, Her and Him.

A deposit is held for the security and cannot be taken for performance of a contract until a Judge or scheme operator so orders at the end of the tenancy. It has to be protected in an approved scheme (DPS, TDS or Mydeposit).

So the husband can come back at you and take you to Court for S214 sanctions, he would be wise to do it as it would offset his rent owed.

Taking someone off tenancy needs the signature of husband, or a tenancy ended and a new one started with wife,

Q4. So what actually happened?

Q5. Was there any paperwork involving you with the taking of this second deposit? Otherwise I would suggest you were completely ignorant of the fact and it was a fraudulent act of the agent. Or at best they were taking rent and they never paid you that rent.

Q6. What was date that money was taken?

Q7. What did you admit to in comms or email with the tenant?

Q8. What is the approx date of this "new contract" with wife?

Q9. Is there any communications confirming a deposit was taken for this new contract or could it be a misunderstanding and in fact what you took was rent and a contribution to her already owing arrears? I.E. did not agree not to take a deposit as she could not afford it.

Q10. How was she "later made aware of this" email or verbally?

Q11. When you say "Her contract is an ongoing one." what do you mean? Was there a new Assured Shorthold Tenancy created?

Q12. Forget being late, what is the amount of the arrears NOW?

Q13. Please provide a complete timeline for all events, change the details by approx 1 month and add or substract £50 to the rent amount just so they do not match any facts.

Q14. Confirm rent was same from beginning to end?

Your best option is to clean this up ASAP with proper AST, proper protection of deposit.

If there were two agreements you are potentially liable for 2 sanctions of UP to 3x the rent for each tenancy agreement, which is why it is much better to have no deposit taken for 2nd tenancy agreement.

If you can go to this lady and say that she is a good tenant and you want to keep her, but you need to sort out paperwork as this agent has disappeared and you need to try to write off your loss to agent to your tax.

So you could say that even though the agent never paid you any rent of monies taken (do not use the D word) you are going to offset what she has proof of payment for to the agent towards her arrears. This should make her happy but it needs to be in a “settlement agreement” that any Housing Act sanctions are agreed as settled.

The alternative is that you get her to agree the arrears going back and at some point you offset those against the legal action she may take.

If there was no new AST then the original tenancy stands and she is now in a Statutory Period tenancy on same terms. That reduces your liability to only screwing up on one tenancy agreement.

Now if you had some backdated letter (that she signed agreement of) somewhere that said you agreed to start a new tenancy and you were not taking a deposit until she had sorted herself out financially but meanwhile you would put any monies taken towards arrears of previous debt, then you would be fine. No deposit taken means no protection required. Such an agreement would have to be accompanies by a new AST that said Landlord agrees that a deposit was not going to be taken until previous arrears had been settled and tenant at such time the tenancy would be protected.

Is pretty dodgy, it could be written with current date as a confirmation of what was verbally agreed at the time. You could even agree there was no new tenancy until she had cleared arrears. That she was still in Stat Periodic, Husband was still a party but did not live their (their domestic arrangement are not your affair).

It really depends on what paperwork currently exists, that will determine your liability in this mess.

BTW both tenants were "jointly and severally liable for the performance of original contract" which means they both owe it, even if wife pays say 60% both owe the remaining 40%.

If you can come back with answer to questions and timeline we can perhaps make more sense of it.

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David 26th April, 2016 @ 09:51

@Arty

A landlord has a right to take monies for cleaning if it is in the tenancy agreement or if it says you will leave it in a specific state of cleanliness and you don't.

I swear this is the biggest reason tenants go after Landlords for S21 sanctions, the landlord takes £90 for cleaning on deposit of £900 and gets sued for £2700 plus costs (worst case).

So Arty your Landlord had to not only protect your deposit in an approved scheme but also to give you something called the Prescribed Information, it is a summary of where the deposit is protected, the reference number, date and amount. Both of these need to be done within 30 days of the deposit being taken.

To Prove the £200 was taken as a deposit you need an email or text from agent saying so, they could just say it was a fee but if it was returnable it IS a deposit.

Alternatively if their website says deposit is higher if you have a cat then you can save that page from your browser, I always save pages to archive.org as well, you just go to archive.org and put in the URL of the webpage, it then says it does not have a copy (or if it does so much the better) but if not you ask it to save it, then you keep the URL of the saved page for reference, it will have todays date but is a least a record.

Q1. So what you need to check is when the £695 was protected, was it within 30 days of being taken?

Q2. Do you have the email from agent admitting they have the £895 deposit, the housing act says you are not allowed to call a deposit something else, so it is not critical but it helps.

Q3. Do you agree that these “repairs” need to be done, did you damage property or is Landlord trying to get you to fund his business, be honest so I can assess your way forward.

Do not use the word compensation because a lot of people hate it, use the word “Sanction” it is what S214 of the housing act calls them.

I bet they wish they could pay you £200 to settle this case, because you save the best till last.

THIS IS A LESSON FOR LANDLORDS

“This agent is no longer using this protection scheme and is already arranging another things to protect your deposit. Please contact your landlord to understand your situation”

THIS COULD MEAN THE DEPOSIT IS NO LONGER PROTECTED.

So first thing you do is get informed, you need to check the deposit has not been moved to another scheme

Q4. Go check here and report back

mydeposits.co.uk/tenants/deposit-checker/

and here

depositprotection.com/is-my-deposit-protected

You also need to go back to TDS and confirm what details it had,

Q5. When was deposit originally protected? (Amount and Date)

Q6. When was it transferred to another scheme (date)

Up until April 1st 2016 TDS was not a custodial scheme, it was an insurance scheme, which means the agent held the money but it was insured.

THIS IS THE LESSON FOR LANDLORDS

An agent can be kicked out of TDS for fraud or just say they are changing scheme and YOU are liable for the non protection of deposit!!

Q7. So Arty, it does not matter about the £200 as much as it matters did they move the deposit to another scheme?

Q8. Did they issue you with NEW Prescribed Information within 30 days of that change?

Let me know what you find,

when was TDS deposit originally protected and for how much? When did TDS protection end? Did you find deposit on any of other schemes, you may need to try different dates, they could have put the date they ended the TDS scheme or they could have it listed as a transfer, if you can’t find it call them both, ask them if they have any protection for that address in your surname for any date?

If you answer the questions above I can post a letter telling you what you write to Landlord, but it looks as if you can at least get 1x deposit plus your deposit back in full. Plus a good reference. If you did damage property you may be better to settle for the 1x deposit and positive reference.

However, to get there we have to first obtain the facts and put the fear if God into them by serving them with the facts and saying you have a claim for 3x the deposit and the return of your deposit plus any legal costs in obtaining same via the Court.

As I always say, this is poker and we just show a few cards at first. Our objective is to settle, but first we have to dance.

You have to give people a little info at a time and let them sleep on it, first WHAM, a demand for 3x deposit worded in such a way and await their response.

It is a LOSS so expect them to go through bereavement process, Denial, Anger, Sorrow, Depression and then Acceptance.

Once they accept they are liable we can start negotiating, but we will do that slowly, not giving anything away without something in return.

They may blame Agent but you will say that is not your problem, Law says they are liable and if they wish to later sue the Agent that is up to them.

I have had a Landlord get the Agents pay 3x deposit!

It took two firms of lawyers and knowing how to deal with the agent who was a total scumbag, hence idea to hold him responsible came from me!

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