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

For a general overview and background on tenancy deposits, please refer to the tenancy deposit guide. For those of you that are familiar with the legislation but have failed to protect your tenant(s) deposit for one reason or another, you’re in the right place.

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

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

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

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

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

I didn’t protect my tenant’s deposit!

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

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

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

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

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

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

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

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

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

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

Yes, it’s true.

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

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

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

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

As it stands, these are your options:

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

If your tenant hasn’t mentioned anything…

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

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

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

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

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

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

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

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

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

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

My letting agent did not protect the deposit…

Oh dear.

Your hired help has failed you. Common scenario.

So where do you stand in this case? Are you given the luxury of mercy? Unfortunately, you’re in the exact same position as if you have no association with a letting agent.

If 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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359 Comments- Join The Conversation...

Showing 309 - 359 comments (out of 359)
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David 25th April, 2017 @ 09:21

Legally, yes they are both the same, the insurance protection is underwritten by TDS for a fee. Dodgy Lettings Agents use them and then keep the money as cashflow, then they slowly go out of business, the TDS kicks them off the scheme and the Landlord is then liable for not protecting the deposit from that moment even though they had no idea.

The deposit companies make money on interest with the custodial system, not sure if they require a minimum period of 6 months as that is the minimum AST.

You will have to ask them about terms.

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Lisa 25th April, 2017 @ 18:37

David you mentioned the tenant has 3 years to make a claim

3 years from when?

When I set up the scheme or when they move out? As they are happy tenents and could say for a long time

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David 25th April, 2017 @ 19:47

Officially it is 3 years from when they discover it but there have been some who have found other way and done it within 6 years when most things are barred by statute.

Yep and there is the rub, Tenants and Landlords love each other when they need each other but once they have gone their separate ways the landlords don't bother with the nice reference and the tenant is told by someone in the pub that it is easy money.

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Mike 26th April, 2017 @ 20:09

Hi David, thanks for reply ref the deposit protection what if I tell them if asked I've drew the deposit out to give back to them the social housing have contacted me asking me to issue a section 21 what's your advice on this any easy options out.

Thanks

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David 26th April, 2017 @ 20:30

Before the law was changed (about 8 times) Landlords could get out of it by giving the deposit back, some would even call for an adjournment in Court, give the tenant cash and then go back in saying they held no deposit.

Now you are liable if you did not protect a deposit within 30 days of taking it and if you do not issue PI within 30 days.

From Oct 2015 (which seems to fit your timeline) they added the obligation to issue Energy Performance, Gas Safety and How to Rent, including giving them the latest How to rent if it was updated since you renewed.

If you live in what we might call a "sensible Council" area, they will tell the tenant to leave when the S21 expires and they will take then into temporary housing on that day.

If you live in an arsehole Council area, they will pull out ALL the stops to delay delay delay, they will tell you to issue a S21, tell the tenant to challenge it 2 months later because it is not legal (if no EPC etc), you would then be forced to start over, another 2 months and then when S21 expires they tell them to stay put and force you to get bailiffs, that could delay for weeks or even months. If they have kids and are vulnerable you may struggle to get it taken to high court which would cost you a packet anyway.

During this time if they stopped paying rent which some do then you are entitled to get it paid direct after 6 weeks.

So you will have to figure out the best way forward, as I said above giving it back to them does prevent the paperwork and they may appreciate it, but it will not get you off the hook.

----
Please note that this for information purposes only and should not be construed as legal advice. For legal advice please contact your own solicitor.

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Linda 5th May, 2017 @ 20:57

My tenant is asking for proof of where I have her deposit. It's a really long story but in short I paid her deposit back to her account as I thought she must of heard about this dps and was trying to see if I had a dps scheme in place. (I didn't protect the deposit but I have it in an account) she then sent it straight back to me and is still asking for my certificate. I have now put it in a dps scheme but do you think it's to late for me?

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David 5th May, 2017 @ 21:12

How did she send it back?

You do not give any dates or periods, considering that there are at least 8 different variables affected by dates, acts and case law I can't be precise

Suffice to say you are liable, liable to agree a settlement

The fact that she sent it back clearly shows she is after a payday.

She should have a certificate from the DPS if you have now given them her details

Wait for her to actually make a demand

While you are waiting have a read of this page

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

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Anon 8th May, 2017 @ 20:41

I quote "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."

This is NOT TRUE. There is NO recourse if your letting agent fails to protect your deposit. NONE. Not even if they belong to a redress scheme like ours did. A potential fine is not a loss - so you will not get redress unless, miraculously your dodgy letting agent stays in business until you get sued for up to 6 years. You cannot admit your fault either, as according to legal advice that is you causing your own loss.

Ours went out of business, the Property Redress Scheme offered us £200 to compensate us for lack of deposit protection. That is not going to cover the 1 - 3x the deposit. Bottom line is, do the deposit yourself or don't take one. If you rely on someone else and they mess up it will cost you, not them.

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Turnyourtvoff 11th May, 2017 @ 14:22

Good afternoon,

We are looking to claim back unpaid rent £1000-£1500.

The tenant has admitted he owes money in the past and even started paying through a payment plan. He has now decided to stop paying and does not wish to make further payments.
We have the signed tenancy agreement, the tenant has now vacated the property (not leaving the required notice for termination).

Our main question is can we send a letter before action (LBA) to his employment (work) address as currently we don't have a current address for him?

Another point is, the depoist (less than 500 pounds) was not in a deposit scheme. We are not and have never said we would make any deductions (even though the tenant did damage a door - of which we have proof) so are willing to transfer the whole amount back as soon as we initiate proceedings to avoid being in breach of the e Section Housing Act 2004 and avoid the compesation fine of 1 to 3 times the deposit.

Does anyone have experience in any of these points?

Thank you in advance

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Simon Pambin 11th May, 2017 @ 17:34

You'll still be liable for a penalty, even if you pay the deposit back now, because you didn't protect it within 30 days. Given the sums involved, you might find it easier just to come to an agreement with your erstwhile tenant whereby you keep the deposit and write off the remainder of the debt, and he doesn't sue you for breach of S213.

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Turnyourtvoff 12th May, 2017 @ 14:21

Thank you for your reply.

As for the sending the money back, that was information given by my solicitor and that would avoid the compensation being the 2x 3x the deposit amount which I believe is reserved for cases when the court deems the landlord has been unfair and is trying to overcharge the tenant.

The only reason we still have the deposit is because the tenant on leaving told us, that as he was significantly behind on payments we could keep it and put it towards his bill. (We have proof of this)

Concerning the legal bill, I am affraid you have just reiterated my concerns.

Does anyone know if/why the tenant would be able to make us liable for his solicitors fees regarding the 1)case non protection of deposit in a scheme yet we would not be able to charge solicitor fees for the 2) case of no- payment of rent?

I belive he would only be liable for cort fees etc which are significantly less.

Any more comments or expertise would be appreciated,

Thank you

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David 12th May, 2017 @ 20:31

@Turnyourtvoff

Technically you can serve him at any address you have reason to believe he is at, it is frowned upon to use work address, but if done discreetly, marked strictly private and confidential for the attention of addressee only. Hand delivery may be a better option or just follow him from work and figure out new address. You may be able to trace him using the same people who do high court enforcement.

HOWEVER, you really risk this turning around and biting you in the arse.

You have been given bad advice about the deposit, the mitigation has all but gone because you did not protect it as soon as you became aware. The Judges do not give greater sanction because you overcharge, most are just concerned with the law. The decide what kind of a Landlord you are by your record, No Repairs issues, no entering the property without notice, no attempted eviction, proper gas safety checks, EPC and How to rent booklet, plus the PI. They are human, so if they see a tenant who has arrears, damages the property, has ASB issues etc etc.

You can only hold the tenant liable for loss of rent between the time they left and the time it took you to get a new tenant in (OFT356 actual costs). You have to mitigate your losses as we all do.

You can indeed be held liable for costs depending on the track used, small claims has limits which is why we avoid using it when making such a claim. If you are in any doubt, I have had one case which was appealed, things got serious and one side brought in a very expensive Counsel. Not only were his travelling expenses £700 for the day but the whole of the legal costs from both stages were allowed, it was £8k in legal fees.

Court is a playground for he wealthy which is why I always suggest what Simon rightly told you, SETTLE SETTLE SETTLE.

Your tenant has 3 years from becoming aware of your obligation to protect to bring a claim but it can be up to 6 years, do you really want that hanging over your head?

If he is on benefits his fees to kick this off will be reduced, he then gets lawyer to carry it on. The thing is you have no defence, unless you can show you did indeed protect it and have evidence from deposit company you are guilty.

The only issue for the judge is mitigation, ignorance is no excuse, they may accept a little if this was your only property and this was the first time you had rented. However, not only did you fail to protect the deposit within 30 days but you failed to provide the Prescribed information, that usually guarantees you a 2x unless you had further mitigation, for example you had an agent and they told you they had protected the deposit. Even that does not get you off the hook, it MIGHT get you a reduction but it depends on the Judge you get on the day. It also depends on your conduct, if you did not have Gas Safety or there were other issues, then you are done. Also bear in mind that this applies PER TENANCY for an old tenancies until Oct 2018.

So what you need to do is play P O K E R, you prepare a case to sue him for breach of contract and your costs plus any rent arrears. You come up with some fictional number plus estimated legal fees of say £3k. You then offer the olive branch saying you wish to avoid animosity and come up with an out of Court settlement which will avoid a CCJ against him.

You draw up the agreement, saying he agrees to you keeping the deposit, agrees to a net amount to be repaid at £20 per week and agrees that this is in full and final settlement of all legal matters relating to the tenancy including any sanctions under the Housing Act. Any such action at any time to void this agreement and make the full claim payable on demand. Get your solicitor to draft it.

Do NOT be greedy here, take his arrears to the day he left, your actual costs in replacing him, if you use an agent you cannot charge for the ongoing agency fee because he could argue you would pay that anyway. Any deductions due to property damage or carpet cleaning if it was in tenancy agreement. Then give him a discount for the settlement. Ideally it should be worth 2x rent on paper (plus he avoids the legal fees) so there is no incentive for him to go to Court and risk losing. Some Judges will go a bit easier on a Landlord on Sanctions if the Landlord brings the case and the tenant bring the sanction claim, but again it all depends on the Judge on the day. Giving him an opportunity to settle will also look good if you do go to Court.

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Josh Dale 31st May, 2017 @ 12:07

I am a tenant who has had a protected tenancy deposit for the last 8 1/2 years. I am now being told that Tenants Liability Insurance is Mandatory - surely If I take this cover I should get my deposit back?

Please can you let me have your thoughts?

Many Thanks

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David 31st May, 2017 @ 16:44

My thoughts are that you should NOT post your spam on this excellent site.

Unfair contract terms, OFT356, when you sign the contract, either cross out the clause or if you are put under duress, write under duress so under your name.

Tenants are liable for damages, that will be determined by deposit holder vs wear and tear. It can be argued that this type of policy is insuring against the Landlords losses rather than the tenants.

I would contact the landlord directly, usually it is agents who try this scam on (because like you they get commission) and we know you will try to take the discussion to a particular policy. The admin of this site will not allow that so do not waste your time.

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Benji 1st June, 2017 @ 10:15

@Josh,

Just looked up a tenant liability insurance policy.
£13 per month.
Over 8.5 years that would add up to a none refundable £1326.
Ouch! Another unintended consequence of the deposit protection laws.

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David 1st June, 2017 @ 14:14

Nothing to do with Deposit Protection Laws, this scam has been around since before they DP laws were even introduced. First they tried to get them to take out contents insurance then this scam insurance surfaced. Mostly it is added by unscrupulous agents. It is in the same zone as Landlords or Agents that try to force tenants to sign up with utility companies that pay them a commission. A tenant has the right to choose their own utilities, now one developer in London is renting 1 bed properties at over £2500 a month but including the utilities, they have factored in the max a tenant could use.

It is actually a bad idea for Landlords, I will explain why.

It starts with Tenants not liking to be forced to do anything and certainly not to be fleeced.

A landlords that insist on their tenants having liability insurance is not only going against OFT356 but they are giving the tenant the green light to NOT take as much care as they might have done. They are risking that tenants will think what the hell I am paying for this insurance, it will cover any damage.

Even if it did, the repairs will add to the void and let me tell you, these policies (like most) are designed NOT TO PAY OUT.

What you have to ask yourself is who has the most to lose, the tenants attitude is "Don't blame me I paid your stinking insurance, it is YOUR problem" and the DPS would likely agree them them.

Years ago I used to play cricket for a local village Club, one of the players was a chap called Billy, he was a British Gas Engineer. Billy asked my advice on what model of hifi he should get and said he was also getting a new sofa.

I commented that I did not know BG paid so well, he said "They don't, it is just that I have been paying for content insurance and I want my money's worth"

I asked what he meant, he said he was going to "accidentally" drop the hifi and the the sofa has been damaged accidentally as well. He said he would pull out a flap of leather for when the loss adjuster came around and remove some of the stitching.

Now I would not ever do that, but there are people who feel they are entitled and Billy's attitude was he was happy to have insurance but he wanted he money back if he had not make a claim. Billy is the kind of tenant that would throw a big party because he would think "well I have insurance what do I care".

If you had a good tenant who refused to renew such insurance would you really want to end the tenancy and risk pissing them off so they trash the place?

No adult likes to be forced to do things, DO YOU? It is your property investment, it is down to YOU as a Landlord to insure it or take on the risk yourself (something I do myself rather than paying for my own contents insurance). It is just a cost of doing business.

These policies are not worth the paper they are written on, they have so many get out clauses that they are just a false sense of security.

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Benji 2nd June, 2017 @ 08:38

@David,

Since deposit protection, there has been a surge in these crap policies, touted as being a cheaper alternative to tenants and avoiding onerous deposit protection rules to landlords, hence very much to do with deposit protection laws. They were no where near as mainstream before.

The rest of your post is preaching the bleeding obvious but thanks for the patronising rant.

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Daniel 6th June, 2017 @ 18:37

I signed a tenancy renewal and the agent said I received a deposit of £850,I never received any deposit ,after serving a s21 to remove tenant,he has appealed on the grounds of his deposit not protected ,even though he never gave one ,but it says he did in contract,I know I am a fool for not reading the renewal ,I have a court date ,the agent won't answer my calls and is related to the tenant,any advice would be great ,and I do have a solicter but costs are mounting and I just want this awful person out,he is on dss and the council seem to be aiding his every move ,at least he is still paying his rent

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David 6th June, 2017 @ 20:30

@Daniel

It is hard to help you when you do not provide any detail, there have been a plethora of changes to several Acts and numerous case law in between.

When did the original tenancy start?

Was this this the first renewal?

Was it a renewal or and extension of the original agreement?

When did you serve the S21

When you say "appeal" is the tenant asking for your S21 to be thrown out (because tenancy is post Oct 2015 and deposit not protected) or did they do a counter claim for the sanction?

Depending the the date of the tenancy you have differing options.

First and foremost, no matter what, the buck stops with you.

If the tenancy was post Oct 2015 your S21 can be thrown out and you will not usually get a Court date if the deposit was not protected. All the tenant has to do in such circumstances is write to the Court asking them to reject the S21 on the basis of Deregulation Act 2015 and deposit not protected. A sanction will also be payable.

The tenant can also ask for your S21 to be thrown out on a post Oct 2015 tenancy if you did not provide the PI, a Gas Safety Certificate, an Energy Performance Certificate or if you did not provide the Government "How to Rent" booklet, on a renewal of such a tenancy the "How to rent" booklet needs to be provided again if a newer version has been published (I think there are 3 so far but depends on date of tenancy and what you served).

Note from Oct 2018 the Dereg act applies to all tenancies.

If the tenancy is prior to Oct 2015 then it may not be thrown out but there will be a Sanction to pay unless you can prove the deposit WAS protected with one of the authorised deposit holders (DPS, My Deposits, TDS). A lot of agent protected with TDS on an insurance backed scheme but then got kicked out leaving you with no protection. Later the other companies got bigger in Insurance backed protection although Custodial is always better for the Landlord.

If you can show that not only did the agent tell you that the deposit was protected but they gave you a certificate, it will go a long way to mitigate your position.

Failing that an email would help.

However, even if you had protected the deposit, the sanction still applies if you do not tell the tenant where the deposit is protected in the official format, this is called the Prescribed information.

So then it comes down to mitigation, you need as much information as possible that you were given by the agent, you need a copy of their terms and ideally their marketing material, for example if their website said "we offer a full service and will take care of deposit protection and all your other legal obligations" then you have them, BUT this will not get you off the hook, it merely gives you a case for breach of contract against them and an ability to sue them after for consequential loss.

Finally there is one item of case law that may help, in the case the Landlord accepted that they were liable to sanction but asked the Court to consider that they were novice landlords and that they had a reasonable expectation that the agent would take care of all of the legal responsibilities. (As stated above, if you have evidence of this so much the better). So the Judge agreed with them and awarded a sanction of 1 x the deposit:

"the Defendant seeks a penalty pursuant to Sections 213 to 215 of the Housing Act 2004. Section 214(4) provides that in the event of a breach, and here the breach is admitted, I must award the Defendant a sum of money not less than the amount of the deposit and not more than three times the deposit. The Defendant contends for the maximum sum which would be three times £1,520, a sum of £4,560. The Claimant contends for one month's rent in the sum of £1,520. I find that the Claimants are not experienced landlords, that this is the first time that they had let out any property and that they were letting out their home. That they quite properly put the matter in the hands of professional managing agents who let them down by not complying with the terms of the Act. I find this case to be at the lowest end of the scale of culpability for non-compliance. And for those reasons I award the sum of £1,520."

Normally this would not be relevant to your case because it was a County Court, BUT the tenants appealed it and sought 2 x the deposit.

NOW YOU NEED TO BE CLEAR, this case is only relevant because it is about whether a County Court judge has discretion. This is what the Tenant's Lawyer said:

"Mr Wellings for the appellants says that this was a wrong exercise of discretion. He submits that the lack of experience as landlords to which the judge referred and the fact that they put the matter in the hands of agents were matters of little weight when set against what he described as a serious failure to comply with the requirements of the Act for a considerable period of time. He recognised realistically that there was a degree of mitigation in that the breach had been admitted and that there was in the event full compliance, albeit only after a period of delay. He contended that the discretion of the judge should, therefore, be set aside and that the appropriate order would be a multiple of twice the appropriate amount of rent."

THE APPEAL COURT did NOT AGREE

"In my judgment, however, the judge was entitled to regard the question of culpability as the most relevant factor in determining what order to make and was entitled to find that the culpability in this case fell at the lowest end of the scale for the reasons which she gave. It is not as if the breach was uncorrected and therefore, although the appellants were lacking the protection for a period of some months, in the end matters were put right."

The other Appeal Court Judges agreed and so there is now case law to say a Country Court Judge has discretion. This does NOT mean they have to give you 1 x the deposit, it merely means your solicitor can refer to the case, try to suggest that you also had a reasonable expectation of a professional agent doing this for you. If course that would be blown out of the water if you did not have a full service agreement and the agent specified they only did that for such clients.

Okadigbo & Anor v Chan & Anor [2014] EWHC 4729 (QB),

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

It is in your interests to ask the agent to provide whatever paperwork they can to mitigate your loss because you will be holding them responsible for your legal fees on the basis that you would not have needed a solicitor if it was a simple S21 eviction.

You also need to understand your position with the Council, if the tenant is more than 6 weeks in arrears you can ask for their Housing Benefit to be paid directly to you or your agent (get it yourself!!)

Also understand that Housing Departments routinely ask tenants if their deposit was not protected in order to delay the eviction. Usually they will only do this because they have a duty of care to house the tenant and that only occurs if the tenant is in some way vulnerable. Some Councils will insist you go all the way and evict the tenant before they will provide temporary accommodation, others will advise the tenant to present themselves as homeless on the day the S21 expires.

The S21 needs to go ahead no matter what but you could negotiate with the tenant to cancel their request for sanctions and just let the S21 go through, offer them 1 x the rent to leave on the day, offer to provide a reference and not to take damages from the deposit (if that makes sense to you), this will reduce your solicitors fee but get the agreement in writing. Remember that even if the tenant wins a case they are still liable for any damage (not wear and tear) to the property, you would get this via the deposit company by paying or getting the agent to pay their deposit into an approved scheme before the Court date. Then you ask the Judge to allow the remains of the deposit be returned after any damages to the property have been clarified and decided by the DPS or whoever has it.

So you can go after the agent for your solicitor costs but probably not the S21 fee which you would have had to pay anyway.

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Daniel 7th June, 2017 @ 12:00

To David
Thank you for your swift yet unfortunately complicated reply for myself to fully comprehend,may I please ask you if I do this

1 cancel court date
2 put in protected deposit £850
3 re issue s21
4 be prepared for a fine even though I never took the deposit ,the agent is bust and was the tenants brother,so I'm sure will stand to his aide,
My only worry is he also appeal on s21 by saying he didn't receive s21 with 2 clear months
Any ideas to make sure it is a valid s21 would be appreciated
Also he put in a repair claim for minuscule things I.e shower tray need reselling
Can this stop my s21
Many thanks for your previous reply and I would greatly appreciate further comment from yourself at such a troubling time mentally for myself
Daniel

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David 7th June, 2017 @ 12:59

@Daniel

I can't answer those until you give me the full facts, my response is a little complicated because I have had to give you various scenarios.

Answer the questions at the beginning of my previous post, then I will try and answer yours.

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David 7th June, 2017 @ 22:51

@Daniel

It is hard to help you when you do not provide any detail

When did the original tenancy start?
Was this this the first renewal?
Was it a renewal or and extension of the original agreement?
When did you serve the S21?

In the absence of these I will try to answer your question, copy and paste my previous message and give it to your solicitor or tell me specifically what you do not understand.

1 cancel court date

TOO PREMATURE TO SAY, AS YOU HAVE NOT ANSWERED THE ABOVE

2 put in protected deposit £850

YES THAT IS A GOOD IDEA, BECAUSE EVEN IF COURT WERE TO FIND IN HIS FAVOUR, THE DPS WOULD STILL ACCEPT A CLAIM FROM YOU IF HE DID NOT MEET TERMS OF THE AGREEMENT, E.G. TO CLEAN CARPETS IF IN CONTRACT OR IF HE DAMAGED PROPERTY

3 re issue s21

YOU HAVE NOT GIVEN ANY REASON THUS FAR TO SUGGEST YOU NEED TO DO THAT

4 be prepared for a fine even though I never took the deposit ,the agent is bust and was the tenants brother,so I'm sure will stand to his aide.

WHAT?

NOW YOU TELL ME THAT?

WAS THE AGENT A LIMITED COMPANY OR SOLE TRADER OR PARTNERSHIP? IF IT WAS A COMPANY DOES IT SHOW AT COMPANIES HOUSE AS IN ADMINISTRATION OR DISQUALIFIED? NAME AND SHAME HERE, GIVE THE NAME OF THE AGENT, THEIR WEBSITE OR COMPANY REG

IF THEY WERE NOT A LIMITED COMPANY YOU CAN SUE THE AGENT/BROTHER PERSONALLY FOR YOUR CONSEQUENTIAL LOSS, EVEN IF HE HAS STOPPED TRADING.

5 My only worry is he also appeal on s21 by saying he didn't receive s21 with 2 clear months

WELL IF HE TOOK IT TO THE COUNCIL THEN HE CLEARLY RECEIVED IT, YOU CAN CALL THE HOUSING AND DISCUSS SOME ASPECTS OF THE CASE, YOU CAN ASK THEM WHETHER THEY HAVE BEEN INFORMED THAT YOU ISSUED A S21, LET THEM ANSWER AND THEN SAY "WHEN WAS THAT", NEXT YOU ASK THEM "DO YOU CONSIDER THAT YOU HAVE A DUTY TO THIS TENANT AS A VULNERABLE PERSON?"

6 Any ideas to make sure it is a valid s21 would be appreciated

I TOLD YOU IN PREVIOUS MESSAGE WHAT MAKES IT VALID

OTHER THAN NEEDING TO BE SERVED 2 CLEAR MONTHS THE MAIN REASONS FOR REJECTION ARE ALL BASED ON THE DATES OF THE TENANCY, PRE 2007 TENANCIES HAVE CERTAIN REQUIREMENT, POST 2007 BUT PRE 2012 TENANCY AGREEMENT HAVE CERTAIN REQUIREMENTS, POST 2012 BUT PRE OCT 2015 HAVE CERTAIN REQUIREMENT AND POST OCT 2015 HAVE CERTAIN REQUIREMENTS,

SO UNLESS YOU GIVE ME THE DETAILS I ASKED FOR ABOVE I CAN'T GIVE YOU ACCURATE INFORMATION

7. Also he put in a repair claim for minuscule things I.e shower tray need reselling Can this stop my s21

IF YOUR TENANCY STARTED AFTER OCTOBER 2015 AND HE ASKED YOU TO DO A REPAIR AND YOU RESPONDED BY ISSUING A S21 THEN HE COULD TRY TO CLAIM IT WAS A REVENGE EVICTION BUT HE WOULD HAVE NEEDED TO REPORT TO THE COUNCIL THAT HE ASKED YOU TO DO THE REPAIR AND IT WOULD PROBABLY HAVE TO BE MORE THAN JUST RESEALING A SHOWER.

THE MORE INFORMATION YOU PROVIDE THE MORE ACCURATE THE ADVICE.

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Ruben 9th June, 2017 @ 09:17

Hi,

I was hoping for some help.

I was renting a property for a year, and I believe the letting agent did not protect my deposit.
The letting agent has been rubbish concerning repairs to the flat, because it was "brand new when I moved in". I admit it was newly finished, but I doubt it was as the letting agent said.

Anyhow I had no problems on moving out my deposit was returned in full. But because I was nervous that the letting agent was gong to try and deduct whatever they could from my deposit I did some research and found out that the fact it was not in a protection scheme (I checked with all 3) means that they have acted illegally.
And I think it is my civic duty to take this further, so as to protect future tenants of this agent (in hoping that they learn there lesson)...I just don't know what action I should take.

Any advice on how to proceed would be very much appreciated.

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Max 9th June, 2017 @ 10:08

Sounds like you're after a quick buck. Forget about it and move on - you got your deposit back no questions asked.
Sounds to me as though you just love something to moan about to be honest. Civic duty to pull his pants down when he's given your deposit back in full? Don't be silly.

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Ruben 9th June, 2017 @ 10:56

That would be the opinion of a landlord!

Landlords/agents as you know are legally permitted to have a deposit protected. This was, I think, introduced to protect both parties in any disputes.

The only thing I have to dispute is that my deposit was not protected. I believe the Law needs to be adhered to. So if somebody has broken the Law, why should I keep quiet about it!

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Amanda 9th June, 2017 @ 11:31

Ruben, if you really want to protect future tenants, then there are other ways!

Unfortunately, whether they use a letting agent or not, the fact that the letting agent has not protected the deposit becomes the landlord's responsibility. . . and therefore presumably the landlord's liability too. The landlord may not know that the agent failed in his responsibility, so perhaps you should tell the landlord directly, giving him/her the option to take their business elsewhere.

You've lost nothing. You're armed with information to protect you as a tenant in the future, so why punish the landlord? Unless, of course, you simply want some money for nothing, irrespective of how much misery the process of getting it will cause everyone involved.

And yes, I too am a landlord!

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Max 9th June, 2017 @ 12:40

Ruben,
You sound very similar to my last and only tenants. Apart from the moaning.

I had to work overseas for 6 months at short notice so let out my flat while I was away. The girls were very pleasant, I let them treat it as their own, hang pictures etc, they sent me pictures of the flat and how well they were looking after it while I was away. I even had my chippy come round and put door nobs on the wardrobe which they wanted. All very amicable.
After about 5 months they asked for the deposit certificate number from the deposit scheme. Something which in my quick departure and moving abroad I forgot to do. I immediately protected it and gave them the cert number and they were fine. They then moved out and I moved back in after the 6 months. I paid them the deposit back in full the day they moved out. Even though They left a bit of a mess and I had to fix the cooker, but seeing as they were friendly tenants and I didn't really see myself as a landlord I didn't want to take any money out of the deposit especially as they were leaving to buy their own place and I know how expensive this can be.

Then, without warning two weeks later I received a "letter before action" from their solicitors and stating that as I hadn't protected their deposit within the one month stipulated thy wanted 3 x the deposit - nearly £4000. I was gobsmacked. Thy said they were incredibly worried throughout the tenancy that I hadn't issued their certificate - even though thy had never asked for it.
Basically they were pulling a fast one and had obviously done this before and knew the law inside out.
I wanted to go to court as this was incredibly unfair but I was assured the court would find in their favour and a minimum of one months deposit would be payable. So I settled out of court for that sum. It has put me off ever doing it in the future.
I think the law needs to be tweaked to protect landlords from rogue tenants as well and if protecting the deposit is so important why don't the tenants pay it in to the scheme thus saving all the "worry" they go through.

Ruben - do as you wish but don't try and hide the fact you are after easy money by saying you are doing it to protect others. That's bull crap.
You have nothing to be aggrieved by by the sounds of it. It's Friday - go have a beer and chill out ffs....

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Ruben 9th June, 2017 @ 12:51

Hi Amanda,

Thank you for your comments.

I have thought about how to help future tenants, and I am going to write a detailed blog about my experiences.

I will post a link here once it's done...

I have had lots of problems in the past. And I acknowledge that apart from my agent being rubbish concerning repairs, and not protecting my deposit, I've had no problem getting my deposit back. Maybe, and I am speculating, because the agent knew they had not protected the deposit.

Although I know the landlords name, I have no contact details for him. And this has been the case in the last 3 apartments that I have rented. All through agencies. I have on all occasions asked for details, but my requests have been ignored. So yes I would tell the LL...If I could!

My problem is that I have had some pretty rubbish situations in the past, whilst a student and as a teacher. I also hear horror stories all the time from my students...And I know, some students have absolutely ruined properties...I knew a group when I was a student that really had no respect at all for a property that did not belong to them, and to be honest I don't think it would have been any different had one of them owned it...But that is another story.

I just feel that its unfair for some agents and in my experience, some landlords to behave in an unscrupulous manner, when it is so expensive to rent and live in London.

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Ruben 9th June, 2017 @ 13:18

Hi Max,

I agree the Law does need tweaking to protect LL as well. I don't think it is fair for LL to be held responsible if an agent that they pay to managed the property does not fulfil that management by protecting a deposit.

Your suggestions of the deposit being protected by the tenant is a great idea. Maybe it should be implemented that without a deposit protection certificate number, a tenancy agreement can not be reached. Then any disputes at the end of a tenancy have to be mediated through a scheme.

As my post to Amanda said, I have no contact details for the LL other than a name. If I had more than that, then the suggestion from Amanda to notify the LL about the Agents inability to conform to Law would be what I would do.

Im not going to lie, I was motivated by the money. But understanding that it would be the LL that is out of pocket is not fair. So I will no longer pursue that.

Best

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David 9th June, 2017 @ 14:41

@Ruben

I take a slightly different approach to the others who have responded to your post.

You see I hate agents about as much as having to clean the remains of dog turd on my shoe.

I do not think you would be protecting tenants here but you could be protecting the next unsuspecting Landlord that might use this useless agent.

Your claim will be against the Landlord (as listed in your tenancy agreement) not the agent, but the Landlord can take the agent to Court depending on the kind of service they had.

I think if nothing else you should drop the landlord a line letting them know that you have just found out that they (the Landlord) should have made sure your deposit was protected within 30 days and now they are liable to a sanction of between 1x and 3x the deposit.

This will no doubt shake them, but it will make sure they take this legal responsibility more seriously in future.

Then depending on the response you get (complete capitulation to aggressive) you can decide how to proceed.

You may of course decide not to proceed in return for a glowing reference but only agree to that AFTER you have had their response.

I have had a case where we got the agent to pay the tenant the settlement, we spoke to the solicitors for the Landlord who accepted he had no defence, we then suggested they sue the agent (who was a complete toe rag). The agent paid, we all saved legal fees and the world was a bright place.

Now that Landlord will be grateful, they will tell friends who might also be landlords and so more tenant deposits will be protected.

This legislation has been around for many years now, so there is no excuse for not protecting the deposit.

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London letting agent 9th June, 2017 @ 14:57

Ruben,
I hope that is not your real name you are using if you intend renting again.
Landlords name and address is on the Land Registry website, something any sensible tenant should check before renting.
Crap tenants tend to attract crap landlords and vice versa.

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David 9th June, 2017 @ 21:08

That may be true but ALL agents are crap!!

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David 9th June, 2017 @ 21:15

@Ruben

It is a legal requirement for the Landord's full name and address to be named in your tenancy agreement. It costs £3 to get the owner of a property from Land registry website.

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David 9th June, 2017 @ 22:06

@Max

"I was gobsmacked. Thy said they were incredibly worried throughout the tenancy that I hadn't issued their certificate - even though thy had never asked for it."

Tell me, do you always go around blaming others for YOUR mistakes? It is NOT their responsibility to ask for the certificate, it is yours to provide it.

"Basically they were pulling a fast one and had obviously done this before and knew the law inside out."

It reflects on you when you berate your tenants but what would have happened if you had an accident while abroad, or if you had a big business fail and lost all your money and assets? They would have lost everything.

The simple fact is that before deposit protection legislation Landlords abused the tenants left right and centre, they saw the deposit as a private fund they could dip into to redecorate the property when it just had wear and tear.

Even after the initial legislation Landlords took the piss, they would get taken to Court, then ask for an adornment and give the Tenant a load of cash, go back into Court then get off because the deposit had been returned. So the legislation was tightened up. There are lots of amendments because Landlords did not take this obligation seriously

"I think the law needs to be tweaked to protect landlords from rogue tenants as well and if protecting the deposit is so important why don't the tenants pay it in to the scheme thus saving all the "worry" they go through."

You are actually quite lucky, initially the law said the deposit had to be protected within 14 days or the Judge had to award 3x the deposit, these was changed to within 30 days and between 1x and 3x the deposit, so you see it has already been tweaked and STILL you screw it up, so of course you deserve a smack, now you will remember, so it has done it's job, to deter you from not taking your responsibility seriously. They are not rogue tenants, YOU were a rogue landlord or rather an Amateur, again you do not appreciate your luck. You not only failed to protect the deposit but you failed to give them the PI within 30 days. SO chances are if you had gone to court it may well have been 2x the deposit, they did you a further favour by asking your for the reference number, if you had not done it by the end of the tenancy you could have been hit for the full 3x the deposit plus the return of the deposit.

Tenants had just 6 months security of tenure in this Country, Landlords kick them out and put up the rent as demand keep increasing. The tenant then faces moving costs and a higher rent, so the last thing thing they need is some dodgy Landlord dipping into their deposit.

"Then, without warning two weeks later I received a "letter before action" from their solicitors and stating that as I hadn't protected their deposit within the one month stipulated thy wanted 3 x the deposit - nearly £4000."

The letter before action IS a warning!

"I wanted to go to court as this was incredibly unfair but I was assured the court would find in their favour and a minimum of one months deposit would be payable. So I settled out of court for that sum. It has put me off ever doing it in the future."

So all in all you were lucky, I always recommend that both parties aim to settle, other landlords who have realised they are in the same position should visit the following article:

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

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Max 9th June, 2017 @ 23:58

@david

Wow. You've changed your tune since we last had correspondence! A lot of the above you actually told me - e.g. They had obviously done this before etc. You helped me with my situation last year david and totally sided with me but it's done now - I couldn't care less! Stop changing your mind you're beginning to sound like Abbott...!!

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Max 10th June, 2017 @ 00:00

@david
In fact you actually told me to offer them £75 to start with... and then keep adding £20 or whatever... ring any bells?!?!

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David 10th June, 2017 @ 09:14

@Max

I do not assume anyone is right or wrong and I help everyone I can, you are right that I gave you advice and I am glad it worked out for you, however, my point was that you can't be blaming them or saying the law is wrong when it was truly your mistake.

I am really glad it worked out for you, to make a difference in other people's lives is what motivates me.

I have not changed my tune one bit, I always suggest both tenant and landlord settle settle settle, I also say it is a game of P O K E R and so you both start with an amount that nobody will accept then meet somewhere in the middle.

I did suggest Ruben use this to get a good reference from a grateful landlord but if there was an agent involved to make sure that they pay the sanction.

If Ruben's Landlord came on here tomorrow I would be please to give them the same advice or better if it was appropriate, I would encourage Ruben to settle for a reasonable amount, I would give his Landlord the case law that might help them mitigate any loss and I would give them the law which would help them go after the Agent (if it was appropriate).

The case above where we got the agent to pay involved an agent who had phoenixed the company and had a right little scam going, I got him home address and exposed his fraudulent structure.

Max you seem to be an amateur landlord but ignorance is not an excuse for breaking the law, now you are better equipped to be a professional Landlord and would probably investigate all your legal obligations if you went into it again, so the experience has helped you. I wish you luck in all your endeavours.

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London letting agent 10th June, 2017 @ 11:37

David,
"It is a legal requirement for the Landord's full name and address to be named in your tenancy agreement."

Bullshit. And don't try twisting it to say you meant s1 L&T 1985.

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David 10th June, 2017 @ 14:40

No, Section 1 of the Landlord & Tenant Act 1985 is the bit where wanker leech Estate Agents must provide the name and address of the Landlord within 21 days of it being requested.

I was actually referring to Section 48 of the Landlord & Tenant Act 1987

This is a LANDLORD forum and many landlords are paying fines because of incompetent Letting Agents failing to carry out their legal duties or giving them bad advice, so I feel it is important to point out that you seem to be such an person (whoever you are).

Now if you want to TWIST things you say you mean they COULD give the details of the Landlord in a separate notice, but it is normal and good practice to name the parties to the tenancy agreement including the full address (for legal service).

I have see agents giving their address and that would be fine if a Landlord was prepared to to risk having such an address as an address for legal service.

However, I would caution all Landlords the obvious conflict of interest, for example, an agent does not protect your deposit, the tenant employs a Solicitor who sends a letter before action, the agent puts in in a drawer for good or bad reason. The Solicitor issues proceedings, the Agent keeps their head in the sand, a county court judgement is obtained and the Landlord is fucked.

In the event that a tenant has NOT been given the notice they may even withhold rent, the request for the address must be adhered to and if the agent refuses to provide it then it becomes a criminal offence.

So not bullshit, just my good advice vs your bad advice.

Glad we cleared that up!

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Anon 11th June, 2017 @ 10:57

Hi,

I had a property where two tenants jointly signed the agreement and the deposit was protected under their joint names.

After the 12 month mark, it became a statutory periodic tenancy, but one of the parties gave notice and left, the other party wanted to stay.

We made him sign a new 6-month tenancy agreement, but we did not notify the deposit protection scheme of this change in parties. (The new agreement was signed August 2016).

The tenant withheld rent for repairs not being carried out to the secure front door and secure electric gate of the property. This amounted to 3 months before we served a notice that Section 8 and Section 21 notices would be served if: the amount of 3 months arrears were not paid before a certain date, and the property was not vacated before the 2 month mark.

The tenant paid promptly and said he would vacate the property well in time of the final date.

Regardless of this, court letters were sent to him seeking possession and payment of one months arrears that had become due.

He then paid the arrears and said there was no need for a court date as he had already given notice that he was leaving in a few days.

The court case was then rescinded and without agreeing deductions, we sent his deposit back minus the court fees and miscellaneous repairs.

The tenant has since discovered that we did not re-protect the deposit and issue the prescribed information in his sole name. (It is still protected under the joint names from the original tenancy agreement.) (The deposit protection company have told him that we should have re-protected the deposit in his name only and re-served him with prescribed information.)

He has now served us with a letter before action stating that he will claim the compensation through the courts if no settlement is reached.

Will he win in court?
Should we settle?

Thanks in advance.

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David 11th June, 2017 @ 12:11

I am afraid he will win at least one month's deposit.

The reason for this is that the law is black and white.

The deposit that was protected was for an entirely different contract.

Ironically, you might have got away with it if you had left it periodic, depending on the year of the tenancy (yours would be fine but others not).

Now there are SOME Judges that will take your side and say they find the deposit was protected, however, most Judges do not want to be overturned on appeal, so only maverick Judges do this.

The thing is the tenant would then be well advised to take it to appeal as it is almost certainly a win AND it removes any protection of costs for you.

The solution here is to negotiate a settlement, visit the article below which explains the process

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

It may involve a certain amount of bluff but you need to get them before they go to a claim company, they are leeches, they will push up costs and aim for a high settlement. They are actually bad news for tenants too because they can't back out without a fee and if the legal issues become more complicated (e.g. breach of contract) they want a fee.

A tenant is always best placed to threaten action with a view to a settlement, the amount of which is always going to depend on the size of cojones which translates into risk appetite, they have less to lose in the situation you describe. Start with the post above, a low ball offer.

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Anon 12th June, 2017 @ 09:23

Hello,

Looking for advice for the following situation below:

I'm looking to rent a room out for 8 weeks, I've met the live-in landlord who seems nice and genuine. However, the landlord admitted that they won't be putting the deposit into a protection scheme as they'd rather not have to pay to do so for such a short period of time. I'm not the to bothered about this as long as I get the full amount back if the room is left in the same condition as it was. The landlord also wants the deposit and each months rent paid in cash. This is my first time renting from a private landlord and I don't want to be ripped off but at the same time I'm not going to report them for not putting it into the scheme as long as they're fair when it comes to returning it. Can anyone with more expeirence give me any advice or let me know if it sounds like something 'dodgey' is going on here. I've asked to a contract to be written up stating all the payments which must be made and waiting to recieve it at the moment.

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London letting agent 12th June, 2017 @ 09:24

David,

So a complete backdown on your previous bullshit now that you've googled it.

Cutting through the crap of your petulant rant;

"I have see agents giving their address and that would be fine"

Glad we cleared that up!

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London letting agent 12th June, 2017 @ 09:53

Anon,
You will be a lodger so no deposit protection is required.

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David 12th June, 2017 @ 11:02

@Anon of 12th June, 2017 @ 09:23

The deposit regulations are for Assured Shorthold Tenancies (and the Statutory Period Tenancies they may become).

So they do not cover lodgers where the Landlord lives in the building.

It is OK to pay cash as long as you have and invoice/receipt BEFORE you hand over the money.

You need a copy of Landlord photo ID, as do they you.

Do not accept no for an answer, there are people renting properties on AirBNB and doing fake lodger lets.

As a precaution you may want to spend £3 and go to the Land Registry website to download the deeds of the property to make sure that the name of the owner of the property matches the person you are dealing with. The deeds are also useful in that they will add any charges by mortgage company that may apply.

In the event that the Landlord (assuming they are genuine) does not return your deposit, you call HMRC and the Mortgage company to let them know that the Landlord is letting the property for cash. That is your only security, this landlord needs to feel safe letting you into their home, so it is entirely reasonable they take a deposit. It is also entirely reasonable that you take steps to secure yourself, photo ID is the most basic thing and the only way you have if things go pear shaped.

I suggest that you arrange with the Landlord to have a meeting to signup and pay the deposit, where you will sign an agreement but you will need an invoice/receipt before you pay. I would also suggest that you ask them to email you any agreement they ask you to sign so that you have time to consider the terms.

Be prepared to cross out anything that is not acceptable, make sure that there are two copies on the day and that you keep one.

What is most important is the inventory and room state, you should film the room, make note on the paperwork of ANY damage at all to the walls, carpet and furniture.

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David 12th June, 2017 @ 11:06

@London letting agent

Not at all, I quote good practice and the law.

You are nothing and nobody, you add no value to the thread and are just polluting it.

If you are a letting agent then your demise is only a matter of time, the industry is changing, either go with it or find another way to earn money.

I expect to see you driving an Uber car in the next five years or maybe one of those cheap Yodel or MyHermes drivers earning 65p a parcel.

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London letting agent 12th June, 2017 @ 12:04

http://www.propertyinvestmentproject.co.uk/blog/5-tenancy-agreement-facts-that-are-bullshit/

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John 12th June, 2017 @ 14:29

I have been renting a flat to two women on a shared tenancy basis for 2 years. One tenant is two months in arrears whilst the other is up to date.
I now need the property back to live in.
Unfortunately I didn't protect their deposits so although I can issue a section 8 to one, I understand that I can't issue a section 21 to the other
Can I move in with the remaining tenant once the other has been evicted?

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David 12th June, 2017 @ 14:52

The first thing to clarify was the type of tenancy, I want to make sure whether you have ever lived with them or you just intend to move back in to take the place of the one you seek to evict.

Assuming these tenants were/are on an Assured Shorthold Tenancy (or one that ended and carried on into a Statutory Periodic) then you need to protect the deposit to mitigate your sanctions.

BTW whilst you can move back in the pre-existing tenancy will apply and if she keeps living there it will roll over to Statutory Periodic (or may have already) if not renewed. You really need to formally end the tenancy and get her to enter into a new agreement that is not substantially the same as previous. Specifically, that she lives there as a lodger, you may want to give her half the deposit back. Some might advice that she move out for a day or week so that there is a clear ending.

Which one was the lead tenant? (the payer or non payer).

Section 8 can be expensive, chances are the non paying tenant is going to come after you for the sanction sooner or later, so why not use your mistake to make the best of a bad situation.

You approach the non payer, you say that you need to move back in and she needs to pay her arrears and move out. You say that you recognise she is in hardship and so are prepared to cut her a break on the arrears if she moves out quickly and agrees to signing a legal agreement so that there is no confusion.

In that agreement to agree terms including, her accepting the monies owed are a settlement for deposit and not protecting the deposit. This is a good thing for her as she does not need to go to Court and it is good for you as it gets her out quickly. Make sure the agreement is headlined as SETTLEMENT AGREEMENT, it should refer to S213, S214 S215 of the Housing Act 2004 and any amendments by later legislation or case law.

Wrap it up with dates of departure, list any damage to the property and say it also settles that, so the agreement can be seen to be in he favour.

Ideally have it drawn up by your Solicitor, at the very least draw it up and have them amend it. Overall it will be cheaper than the legal costs of S8.

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Dawn 25th June, 2017 @ 22:15

I let my house out for the first time 2 years ago. I didn't protect the deposit. I gave the tenant notice to quit and they want to know the holding company. What can I do to mitigate?

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David 26th June, 2017 @ 09:27

@Dawn

Well you need to protect that deposit immediately because you cannot issue a section 21 notice until the deposit is protected.

You do not say much about the circumstances, so it is hard to give you leverage, for example why are you giving notice, are they a non payer, antisocial, trasher, drug den?

The ideal situation is that you find something they want and you barter it into a settlement, for example an offer of £300 plus a positive reference as full and final settlement of the S213-5 legal issues.

I might be able to offer further advice if you give us a bit of history (but nothing that would identify them or you please, so change dates by a month or so etc.)

Meanwhile this article will explain some ways forward, I hope it helps.

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

As far as Court is concerned, there is a little case law that may help you plead for mitigation.

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