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

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

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

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

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

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

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

I didn’t protect my tenant’s deposit!

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

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

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

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

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

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

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

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

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

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

Yes, it’s true.

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

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

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

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

As it stands, these are your options:

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

If your tenant hasn’t mentioned anything…

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

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

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

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

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

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

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

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

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

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

My letting agent did not protect the deposit…

Oh dear.

Your hired help has failed you. Common scenario.

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

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

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

Does anyone else have any additional tips to share? Do you have any experiences to share regarding this matter, weather you’re a landlord or a tenant? I’d love to hear your story!

493 Comments- Join The Conversation...

Showing 443 - 493 comments (out of 493)
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David 25th October, 2017 @ 09:57

@Benji

There is no requirement in S8 that requires it to be signed but any Statement of Truth relied upon as evidence of the grounds would need to be signed, this can be avoided if there is an admission of guilt, such as an email from a tenant admitting the arrears (or other grounds) supported by say bank statements. It can also be signed there an then if the Landlord is there in the Court.

Getting Statements of Truth signed is absolute basics in law, I would not advise anyone to bring S8 proceedings without using a your own Solicitor anyway. That way if there is a mistake you can hold them liable for any additional costs of delay.

A statement of truth can be signed, scanned and sent to your Solicitor and then used. Other forms of digital signature will not suffice as it is a statement from the person. This also applied to certifying evidence.

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David 25th October, 2017 @ 10:03

@Benji

Just to clarify I meant no requirement to be signed by the Landlord herself.

The form itself needs to be signed, but it can be by someone acting on behalf of the Landlord.

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mr.spacemaker 25th October, 2017 @ 11:25

@david

Rent day is coming around again soon so if there is no payment I think the best thing to do is issue S8 notice and see if that has any effect. I'm 99.9% sure there is no break clause so S21 is pointless:-

"the tenancy mustn't expire within the first 12 months"

I'm also pretty sure that this particular tenant is not receiving housing benefit, but will contact housing benefit next week and try what you suggest if payment not received.

Bearing in mind my last experience with agent and solicitors, and complete lack of funds, is there a particular link you recommend for a draft S8 notice, seeing as it's mostly intended as a warning? I will search again for this soon but I thought I may as well ask the expert...

Also, i was thinking of sending an accompanying letter saying something along the lines of "please do not be unduly concerned, S8 notice is automatically issued once you have 2 months of arrears and you have 14 days to clear the arrears in full if you wish to continue the tenancy"

My gut feeling is that this is not a bad tenant, but they just do not understand their obligations properly and feel that it's OK to skip a months rent if they are unhappy with anything! They had a slight issue (now resolved) which was caused by poor communication from their side and resolved as soon as they made contact. Can't say for sure though, as there has been no communication since the missed rent payment.

Absolutely gutted that I never considered the downside of a 12 month contract!!!!

n.b. There are a couple of other details that I wouldn't mind sharing with you in private if at all possible?

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Benji 25th October, 2017 @ 11:59

@Vernon,

To sum up the answer to your quick question;

A section 8 needs to be signed, by the landlord or the landlord's agent.

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David 25th October, 2017 @ 13:08

@MrSpacemaker

After all you have been through with the previous tenant I am really sorry you have had this bad luck.

To be honest I think in life people are split into two groups, those that care and those that don't care. The latter do not care about self respect, they do not care about values or any kind of code. Some of them have bad intent from day one, there are people that seem to think they have a right to live in property and not pay rent. They know the system, manufacture the circumstances to suit their position (e.g. have several AST's).

At the same time there are people that fall on hard times, they feel embarrassed or can't handle the anxiety and pressure. I would urge ANY tenant to reach out to their Landlord at the earliest opportunity if they have a problem. I would also suggest they claim what they are entitled to and pay that to the Landlord at the very least. I have seen some claimants run up debt rather than claim Housing Benefit, of course they ended getting evicted and having a CCJ.

I feel in your circumstances you have to think of yourself, for this to happen so early and for there to be no communication you have to just evict, it may cost you money but you will be saving yourself money down the road. If it is a good person they will learn from the experience that Rent is the one thing you pay, even if you can't afford to heat or eat. This person may have a gambling problem, a drug problem or be an alcoholic, whatever their problem, it is not your problem and you are not a social landlord or housing association who may be more able to deal with such tenants.

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

bit.ly/davidpip

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

I know you have had a bad experience in the past with Solicitors but at the very least get your S8 paperwork formerly checked over by your own Solicitor, maybe not your previous one but one that you have paid.

Another option you may consider is mediation, again start with your local Council Housing Dept and ask them if they are aware of any mediation services in the area. Unfortunately, this varies from place to place, but your local housing charity may be an option.

To be honest with it happening so early in the tenancy and the lack of comms I would be very reticent to keep this tenant unless you can get a guarantor or some other means of preventing this happening again.

You have learnt the hard way that delay ends up costing you more. right now the arrear are around equal to the deposit, if you issue the S8 notice you have up to a year to instigate proceedings.

Before actually issuing the S8 I would write to the tenant, tell them that their failure to contact you and explain what is going on in their life that prevents their paying rent is what will determine the action you take but as soon as you have to invest in legal recovery you will be forced to see it through. Only they can prevent that by engaging with you or having their representative contact you.

This is the truth because once you start down the S8 route you have to see it through and their days are numbered if they do not engage because you will always have the anxiety each month of will I be paid this month.

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David 25th October, 2017 @ 13:19

@Benji

Just to be anally retentive

Someone acting for the landlord can be agent but can also be a Solicitor.

To be honest just sign the damn thing and be done with.

"6 Name and address of landlord/licensor*.
To be signed and dated by the landlord or licensor or the landlord’s or licensor’s agent (someone acting for the landlord or licensor). If there are joint landlords each landlord or the agent must sign unless one signs on behalf of the rest with their agreement."

This is the starting point:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/572508/Form_3_-_Eng-_website_version_Updated.docx

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Jay 25th October, 2017 @ 16:57

Hi,

Looking for some advice. My mum is a landlord and has been sent a letter by her last tenants that have left that they want £4k because she did not put their deposit in the deposit scheme. She said she had. She came home yesterday frantically looking for the account and realised that somehow she had not. Her error. She genuinely thought she had and was horrified last night to find she hadn't. My mum suffers with fibromyalgia, was a foster carer and cares for my nan who has serious dementia. Her plate has been full and she has not been coping very well. She should have checked at some point but didn't. She has tried to call the tenants to explain her mistake and see if they could come to some sort of arrangement but neither are answering their phones. She does not have that sort of money and is struggling herself financially. Could anyone give me any advice that would help her please? I am worried for and fear she is having a breakdown at the minute and would really appreciate any help or advice please? Thank you.

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Maxwell 25th October, 2017 @ 17:35

Hello Jay,

I was in a similar position to you almost exactly a year ago, and came on to this site for advice, as well as seeking my own advice from lawyers etc.
I had a fantastic relationship with my tenants who were on a short term let of 6 months.
Long story short, the week after they moved out I received a “letter before action” email demanding 3 times the deposit as the reference number I had given them for the deposit protection indicated I hadn’t protected the deposit within the 30 day time frame. Even though I had protected it.
We had a great relationship, they had never asked for the Ref number before this although they said in correspondence that it had caused them “no end of worry”!!!
There are nasty people out there who probably make a decent few bob out of unsuspecting in my case first time landlords.
The law will not take your mothers illness into consideration im afraid. And the minimum which will be imposed will be 1x the deposit which is what I settled on eventually - even though I was willing to go to court as it seemed so unfair, as I returned their deposit in full the day they moved out even though repairs were needed as we had such a good relationship - or so i thought.
My advice for your Mum would be to try and settle for the 1x but go in a lot lower to start. All depends how much the deposit was in the first place.
I hope it doesn’t cause your Mum too much stress - it really did for my unfortunately it was a horrible time especially round Christmas time - and I’m a healthy man in my 30’s...

The law needs to be tightened up to stop these leeches. It should be there to help landlords against bad tenants and tenants against unscrupulous landlords. Not the innocent.

All the best. Good luck.

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David 25th October, 2017 @ 18:22

@Jay

As pointed out by Maxwell the minimum they will get in Court is 1x the deposit, that is if she successfully pleads mitigations (novice landlord, first time letting). If she allows it to go to Court she may have to pay a Court fee if they do not qualify for free filings (they have to not only be on benefits but show their bank statements and make a declaration of other criteria).

People on this site have reported that they worked out a settlement of £300 by following the advice on the page below which includes sample letters

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

It relies partly on the fact that a Court will consider it a waste of their time if a reasonable settlement is offered and not accepted and partly on case law (see OKADIGBO CHAN link below) which has affirmed a Judge has the right to exercise their own discretion under the act.

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

These are both subjective things; some Judges may in fact feel it is unfair, so what is reasonable to them is a few hundred pound. They still have to award the 1x the deposit but they may not offer the Court fee or legal fees if a Solicitor is used (we have had success as getting the avenue used to get legal fees thrown out but there is no case law, just the argument on CPR.

On the other hand, if a Tenant in explaining the facts and history lists major failings by a Landlord, such as repairs or Gas Safety certificates etc, then they can in fact expect that discretion to be used to charge the full sanction.

I should point out that the law will NOT be changed and it is NOT unfair even if you have returned the deposit.

In fact the law was tightened up because previously unscrupulous Landlords were returning the deposit in cash in Court just before they went in.

It is like saying, "I had no insurance but I did not have an accident so it is fine". The law says you need to have insurance the same as it says you need to protect the deposit.

Whilst I have sympathy and will help all of those who forget and are facing being punished, that sanction is part of the deterrent.

There are Landlords out there who protect the deposit with fake credentials, I am aware of at least three, so clearly there is a need for this regulation. The deregulation act has already made it a lot better for Landlords and it will become easier still from Oct 2018.

One thing that is a problem is the claims companies who are just getting into this, that IS unfair because they stitch up the tenant and landlord, virtually making it impossible to settle on fair terms.

So take a look at the "My Tenant Is Threatening Legal Action Because I Didn’t Secure The Deposit" page and see what you can do.

I suggest that you make the call on her behalf, perhaps go in person, withhold your caller id at first. If the approach has come for a claim firm then that is entirely different because they will have told them not to engage and told your mother not to contact them. The solution there depends on the claim firm and I would ask that you NOT name any firm publicly as it may help them and hurt others.

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Jay 26th October, 2017 @ 10:52

Thank you so much for the help and advice, I really appreciate it. She accepts she has made the mistake. She always had a good relationship with the tenants and acted swiftly with any problems they may have had, she was always a good landlord and they were good tenants. They are not answering their phones so unable to ask and reason with them personally. I will look at the links today and see what we can do. Many thanks again.

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mr.spacemaker 26th October, 2017 @ 11:15

@jay

I think given the circumstances of the tenancy it is highly unlikely that a judge would award more than 1× the deposit so that would definitely be considered 'a reasonable offer' and the tenant will risk problems in court later on if they turn it down.

If it's impossible to contact the tenants directly anyway, I would be tempted to offer 1x the deposit straight away with a professional letter that quotes the law and other cases and makes it clear that it is your only offer.

So you're basically saying "if you go to court this is the maximum you are likely to get anyway, and whilst you may usually be awarded your fees (the important bit for the claim company), the fact that you have (mis)advised your client to turn down a very reasonable offer at this early stage will make it clear that you are wasting the courts time in order to increase your fees"

What do you think @David ?

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David 26th October, 2017 @ 16:41

@Jay & @mr.spacemaker

Have a go, one thing I have found is that people like to work for their negotiation settlement, that is why in the other page I suggest starting at £300. Those who are not up for a fight may accept it, those who have 3x in their eyes will come back and haggle.

Then you quote the above case, remind them of CPR part 36 offers and increase your offer in small increments, maybe add a positive reference. If a Landlord ever rings you for a reference tell the truth, "great tenants but my advice is that you fully comply with deposit protection and PI requirements."

Also remember in any small perceived loss situation people need a nights sleep to get to acceptance, so make them the offer in writing (you must have their email) and ask them to let you at their nearest convenience.

The important thing is to lay out your offer in writing, remember that you are writing it as much for the Judge as the tenant. Say how surprised you were to receive the letter as there had been no issues of contention during tenancy and deposit was returned in full.

If they push this all the way it may backfire on them, I know one very scary landlady, she decided to fight on principle, the Judge did not give the award and they appealed. She then employed a serious Barrister, his travel expenses alone were £700, the Circuit Judge gave them the 1x Sanction because he had to really, but he said because she had made a reasonable offer the tenant had to pay costs of both hearings. Total was around £7.5k and they had their own costs to pay.

This is why I tell Landlord and Tenant alike, as long as their is no claim firm involved settle. If it is a Solicitor approaching you then settle early but some of these claim firms are really taking the proverbial P, they just crank up the fees with every interaction.

I really hope it works out well for her and that her situation improves, pain conditions are hard enough without care obligations.

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Lauren 27th October, 2017 @ 00:48

Hello I'm seeking a bit of advice. Me and my partner have been living in our property for 3 years and roughly 9 months. On 12/10/17 I contacted my landlord and informed him we had found a house and would be moving. He said he would have ideally likes a month's notice but he wasn't going to stop us if we had already found a house. Generally speaking he seemed to take it well. He wanted a specific moving out date which I told him would be the 31/10/17. He text me a few days later asking if I could reconnect a thermostat a plumber had taken off the wall to ensure our heating would work and if I didn't he could get someone in to do it but the charge would be taken from my security deposit to cover the cost. This infuriated me because he knew about the thermostat being taken off 3 years prior and didn't seem to have an issue with it. I disputed this and he reluctantly agreed it wasn't a cost I incurred. He then went on to say he could charge me for next months rent (£600) but he would only charge me 12 days and would take that out of my security deposit. This clearly made me even more angry because this hadn't been agreed at all. Our contract does not state how much notice to give and it is also invalid because it was only and AST Agreement for one year. He was happy for the tenancy to roll on but never gave us a new contract. The most important part of this issue is that he never protected our deposit. Now it seems to me he's trying to get a little more money out of us here and there where he can. Can I ask him for the whole deposit back of £550 because he didn't protect it? I ask this because I feel like when we move out he will inspect the property and try and charge us for anything he sees fit to and only give us a portion of our deposit back if any.Thanks Lauren

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David 27th October, 2017 @ 10:23

@Lauren

This is a classic case of each side not seeing things from the other's point of view, things then becoming escalated, rights and entitlements assumed and a big dispute follows. So let me lay it out for both sides.

I find it almost impossible to believe that an AST has been drafted with no notice period, it may be in legalese that you do not understand.

It is quite normal for a tenancy to expire but carry on, either the contract itself says it carries on until terminated by either party under the terms of the contract, Contractual Periodic or it becomes a Statutory Periodic.

I would be happy to review it if you want to scan it but do not post a link publicly, I suggest we do it via the forum of this site.

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

bit.ly/davidpip

BTW The statutory notice is 1 month for Tenants and 2 months for Landlords.

Your deposit is taken for the performance of the contract, that means that as long as all of the terms in the agreement are not unfair contract terms (as determined by a Judge and/or common law) then the Landlord can make a claim against the deposit.

In plain English the Landlord can charge you if the property is not left in the same condition it was when it was let to you (save wear and tear). So he can't require you to redecorate or replace worn carpets but if the carpets are very dirty he can insist they are professionally cleaned IF they were professionally cleaned or new when you moved in. This should have been documented on the inventory.

If when he let you the property it had and functioning thermostat that you or your contractor removed, he can quite reasonably insist you restore that modification to his property or else face the cost of him restoring it.

With regard to the notice, the Landlord could be difficult and hold you responsible for proper notice, this does not mean he is entitled to a whole month's rent because he has to mitigate his loss by trying to get someone in as soon as practically possible. He cannot charge you for a fee he would have incurred anyway (e.g. a letting fee from an agent or the cost of placing an ad for a new tenant). This is why he has probably not bothered.

Based on what you have said I think he is actually being quite reasonable, but what perhaps is making you angry is that he is trying to assert his authority or reneging on what was previously agreed.

If he had protected your deposit then any dispute could have been put to the deposit company to arbitrate, in my opinion they would have let him charge you for the restoration of the thermostat if you were responsible for removing it.

You said "he knew about the thermostat being taken off 3 years prior and didn't seem to have an issue with it." the issue as far as they are concerned will be, was it his contractor who removed it or did he explicitly authorise you to remove it. From what you said it seems that he knew about it because you informed him but that is not the same as authorising it.

You are nervous that he will deduct more from the deposit, he is probably nervous as to the condition of the property. You may not have trashed it but you may also have made changes that need to be restored before he can rent it to a new tenant.

My suggestion to you both is that you reach a settlement, you agree not to take legal action for his failure to protect the deposit and he agrees to refund your deposit in full regardless of the state of the property or the lack of notice.

Sure you could take legal action and so might he if the property requires huge work. It is better not to let this escalate, you seem to suggest that he has been a decent enough Landlord and that all you are worried about is the return of your deposit.

I would refer him to this page if he has any doubt, but I suspect that if you make this proposal he will graciously accept it.

If he does not then by all means come back to me and I will construct a letter for you.

I wish you all the best in your new home.

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Lauren 27th October, 2017 @ 11:41

Thanks for your comment David. I don't have the equipment to scan a copy of the contract but I have read it through a few times over and it most definitely doesn't state a notice period and I've had family members read through it also to be certain. The contract itself looks like it was printed offline, a drafted general AST. we were also not given an inventory at all,not sure if that's compulsory or not. The property was new when we moved in, we were the first to live there so the carpets were new, very cheap pale ones I might add. He mentioned he wanted me to clean them before moving out which I will happily do. I'm also more than happy to clean the whole house before we vacate the property for good, which I have told him. I feel that's what all tenants are obligated to do anyway. The house itself is not damaged just a normal wear and tear you would expect from a family of 3 living in the same property for almost 4 years with no redecorating done in that time. I am nervous about the deposit, just because I feel he may be end up being a bit unreasonable. Also this is the first home I've had and never been through the whole process before of moving out to a second home and getting a deposit back. Thanks

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Lauren 27th October, 2017 @ 11:47

I might also add that when I informed him we would moving I let him know we had some friends, a couple who are expecting that really wanted the house. They are moving in on 01/12/17. I felt he appreciated that because he was probably worried the property would be empty for a short time while he searched for a new tenant.

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David 27th October, 2017 @ 12:11

@Lauren

No matter about the contract, if something is not there the statutory notice applies but he is not going to enforce it.

Trust me you are in a very strong position, if you would like me to construct a letter or email for you suggesting the settlement I would be pleased to do so, just contact me via the forum as suggested above.

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Elena 3rd November, 2017 @ 22:42

Hi, just a query. I moved out of a rented property 5 months ago after living there for over 8 years. The landlord has now sent me a bill for nearly £800 for work he has had done since I've left - cleaning, replacing carpets. He states if I don't pay within 14 days he will start legal proceedings. This has really knocked me for six, I've been in touch with CAB but can't get an appointment for 3 weeks, they asked about the deposit, which was 2 months upfront with the last month free, and my tenancy agreement also states this an no mention of a scheme used. Should he have put the deposit in the scheme? I'm just wondering if I should reply, disputing the £800 and ask about the deposit at the same time? Many thanks

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David 3rd November, 2017 @ 23:21

@Elena

Yes he was obligated to protect your deposit, did you actually pay the last month upfront (and have it refunded), some Landlords try to quote this last month up front to avoid deposit protection but it is still viewed as a deposit (he had your money for 8 years!).

How did you pay your deposit and how was it returned (Cash, Cheque, Bank Transfer)?

Now regarding the £800

He can only hold you responsible for damages and maybe carpet cleaning (if it says latter in contract).

After 8 years and who knows how many years before it sounds like wear & tear which are NOT yours to pay.

To be honest he can't really come to you 5 months later, there should have been an Inventory going in and coming out. Any difference should have been raised then IN WRITING and had you sign.

Do not worry, I can write you a letter that will knock HIM for a 6, but I suggest we do it via the forum because you have already put personal information up.

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

bit.ly/davidpip

This was SO short sighted of him, you are now looking at between 1x and 3x the deposit and we will quote all the money taken at the beginning of the tenancy except the first months rent.

To be honest after 8 years £800 is not a lot for him to bear.

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M Judge 7th November, 2017 @ 13:26

@ David,

I am hoping you can help me.

My dad let his property and took a deposit, however he is quite illiterate and did not protect it.

The tenant has been missing payments so 2 months before the tenancy ended he served her a section 21 notice. We have now filed a court possession order to get her out.

Do you think the court will ask for evidence that we protected the deposit.

Please could you offer some good advice.

Thanks

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Chuddy 7th November, 2017 @ 14:37

Hi,
I have spoken to my landlord with regards to my 3,500 deposit not being protected , he is adamant that he does not have to put it in a Deposit Scheme.

He Is threatening to Issue a section 8 for rent arrears, I am paying arrears off weekly, so I am only 1 month behind at the moment, can he still issue a section 8.

He has still not done any of the repairs he promised would be done.

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David 7th November, 2017 @ 17:04

@Chuddy

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

You should ask them if they have historical reports for this Landlord.

£3,500 wow you are quids in, the repairs will look bad on him if it gets to Court.

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

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

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

bit.ly/davidpip

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

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David 7th November, 2017 @ 17:13

@M Judge

I am afraid that they will almost certainly ask for evidence of a protected deposit.

The tenant will also be advised to by Local Authority if they seek housing, by CAB and any old Joe in the pub. Even if it were granted they have 6 years to come after him.

You will be wasting time and money going to Court without deposit protected, you could try to protect it now.

The deposit has to be protected at the beginning of proceedings.

Strictly speaking proceedings start when you issue the notice but I have seen cases of Landlords gaining possession from poorly represented tenants defending themselves or not even turning up in Court. In those cases they argued that their interpretation of start of proceedings was going to Court.

I would not rely on that but if you want the money already spent to go somewhere then get the deposit protected now.

You could preempt any dispute by telling the tenant that you are changing deposit holder and the new deposit protection company will be in touch to inform them where the deposit will now be held. Again it is thin but you have no choice.

DO NOT GO TO COURT WITH NO DEPOSIT PROTECTION, it is critical for mitigation to protect it as soon as you became aware of the legislation. This may make the difference between paying 1x or 3x the deposit!!

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Brenda 12th November, 2017 @ 14:20

Hi

Very interesting article and forum.
I'm not sure if similar post was already posted here. There is so many of them.

We've got tenants that stay year by year with us. Every year we issue a new tenancy agreement with section21 included, hence it is not a rolling tenancy after 1 year.
Unfortunately we didn't realise that we may need to re-protect their deposit every year.

How we suppose to do that? Ask the tenants to re-pay their deposits to us? As far as I Understand it, to re-protect we need to pay it back to the Deposit Scheme and they won't release the old deposit without the tenant's consent.

Please advice.
Thank you

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David 12th November, 2017 @ 16:36

@Brenda

You do not say how many years it has been, do not give exact dates but just an idea.

This really is THE WORST way to proceed and it could end up costing you up to 3x the deposit for each tenancy, tenant has up to 6 years to claim, even after they leave and had deposit back.

For the benefit of other Landlords let me make it clear that until October 2018 the best Tenancy agreement is either a Contractual Periodic with break clauses that suit you OR a Statutory Periodic

The former has an initial period but then runs until notice given in accordance with terms laid out in agreement. The latter is where your initial AST is allowed to expire and then becomes Statutory Periodic when it expires under same terms except that tenant only has to give 1 month's notice.

There is some good news for you.

@Brenda you do NOT need to re-protect a deposit if it is already in a scheme since October 2015, the Deregulation Act rectified this case law and from Oct 2018 it will also apply to tenancies BEFORE Oct 2015 (when the Act became active).

The basic premise of the Dereg Act is that if you protected it in the first place it will count as protected as long as same tenants and substantially same tenancy in terms of space etc. If you did not protect it originally then you will pay for each and every tenancy a minimum of 1x the deposit.

You may still be liable for some tenancies, it is too complicated to lay out every permutation because there were several amendments to the Housing Act AND numerous cases in High and Appeal Court, hence the Dereg Act because it was getting silly.

The Deregulation Act gave an amnesty period for certain tenancies but that is long expired.

Your Section 21's are invalid, the Deregulation Act forbids issuing S21 with a new tenancy, the earliest it can be issued is after 4 months, giving at least 2 months clear notice so it expires at least 6 months and a day after start date because of the wording of the Act.

Your Section 21's also subject to a "use it or lose it" clause so you can't hold these over a tenant's head.

Your Section 21's are also invalid because you have no valid current deposit protection, any attempt to use one would lose you the fee and render you liable to counter claim.

Your Section 21's may also be invalid because you did not use the right S21 form (Assuming you have been using same old ones year after year).

Your Section 21's may also invalid because you did not include a EPC (required once in 5 years) and Gas Safety certificate (required annually).

If you tenant has asked for repairs and you then try to evict them, that too will render your S21 invalid.

So now it is a matter of determining how bad the damage is, i.e. how many years has this been going on and then working out a negotiation.

Let me know which and I can lay out best way forward.

Some people who know they are buggered tell the tenant that they are moving the deposit to a new scheme to cover up the fact that new paperwork will be issued. However, you might be better off waiting for a claim, your deposit in a scheme so wait and see.

Do not do anything to piss off tenants, do not make claims on their deposit or put the rent up or kick them out. Otherwise prepare yourself for some negotiation, is always better to catch a tenant before they go to a claims company, link below explains how to negotiate, but let me know the number of tenancies.

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

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David 12th November, 2017 @ 16:41

@Brenda

When you say "stay here with us" are you saying they are lodgers?

If so they do not need AST nor does deposit need to be protected.

It would be unfortunate if you have given them AST's rather than lodger agreements as in the event of a claim you would need to ask a Judge to rule that they should have been on lodger agreements as you live in with them with shared facilities.

If they ARE in a self contained flat then the AST's will apply along with my post above.

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Brenda 12th November, 2017 @ 20:41

@David

Thank you for your input.

I'm not sure which AST type is ours. We have a 6 months break clause in AST that allows our tenants (definitely not lodgers as they share separate house) to leave if they can find someone to replace them. Otherwise the tenancy expires in 12 months. From what you say I assume that then it becomes periodic (statutory or contractual?) Yet, we create a new AST document every year, with same conditions, maybe slightly higher rent after 2 years. Sometimes we are a bit late with creating the new AST so there is a period when they don't have AST document in place. I guess this is when this falls under periodic tenancy.
There is 3 tenancies with the deposit protected before August 2015. We served them already 3rd AST but they still didn't sign it a month later.

So thinking about the advise you gave, if we explain them that we're moving their deposit to the new scheme so they need to release the old one and re-pay it to our bank account , maybe we should offer them compensation for it straightaway? I only think that it might be invalid if they decide to put a case against us, since it will not be specified that the compensation is for not registering their deposits but for other inconveniences.

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David 13th November, 2017 @ 00:30

@Brenda

So they are AST, the only hope for you was Lodger or a holiday let.

The tenancies cannot BECOME contractual periodic, they start off as such, being a tenancy that does not expire till notice given, with a minimum period of 6 months (the legal minimum for any AST). Or Tenancies became statutory periodic when they expire and the tenants do not leave.

So you are in a bit of a mess although it sounds as if your tenants come and go like students or seasonal workers, I assume that the deposit is protected in the name of the lead tenant?

If you have not had at least one continuous tenant since the deposit was protected you may not be able to rely on the deposit being continuously protected. Although in a way it makes it less likely that you will get a claim, any claim on a JOINT tenancy you do get MUST be authorised and agreed by ALL tenants to whom it applies.

There is strong case law on this, what it means is if you start with Tom, Dick and Harry, in year one with Dick and Harry replaced each year till at the end only Tom, Mary and Pete remain currently. In order for Tom to bring a claim he would need to bring it jointly with each set of tenants for each claim, very difficult to achieve, even if tenants are friendly, some just do not like to do it.

So what can count as a tenancy for the purposes of the Act and be liable for Sanctions of up to 3x the deposit? Imagine a house which has AST's as follows

AST 1 Started May 1st 2013 for 12 months Deposit protected
AST 2 Started Jun 1st 2014 for 12 months
AST 3 Started Aug 1st 2015 for 12 months
AST 4 Started Sep 1st 2016 for 12 months
AST 5 Started Nov 1st 2017 for 12 months

From a Liability point of view additional SPT's are created, each with an obligation to be re-protected. (Re-protected did NOT require deposit to be returned, but merely to issue new PI with new tenancy date details).

AST 1 May 1st 2013 for 12 months Deposit protected
SPT 1 May 1st to May 31st 2014
AST 2 Jun 1st 2014 for 12 months
SPT 2 Jun 1st to July 31st 2015
AST 3 Aug 1st 2015 for 12 months
SPT 3 Aug 1st to Aug 31st 2016
AST 4 Sep 1st 2016 for 12 months
SPT 4 Sep 1st 2017 to Oct 31st 2017*
AST 5 Nov 1st 2017 for 12 months*

*Potentially not liable under dereg act IF previous deposit is classed as substantially same by the Judge.

So you see here there is a potential for up to 9 tenancies each with a minimum 1x deposit, however, if you had joint tenancy agreements (i.e. not an agreement per person but a single agreement for each period with the tenants listed together and then amended), then legal action would require all parties to each agreement to give permission for action to be taken on their behalf and they can object or decline.

If they have not signed the latest tenancy agreement then the previous SPT applies.

You do NOT need to return a deposit to the tenant to re-protect it, there is a mechanism to move it between schemes, I only mentioned it as it is a way to let tenants know they will get new paperwork.

Your situation is so complex I would LEAVE IT BE for now unless one of the tenants has started to make noises about it. Right now if anyone searches for it, then it will show as protected from the original date under the surname of the lead tenant you protected it with (unless you informed them of new tenants).

I would not give them compensation for inconvenience, if and when you want to settle it you need a settlement agreement that specifically mentions Sanction of S213-215 of Housing Act or else it will not be settling any claim.

As it is depending on how many tenants have been and gone you the complexity may protect you because they all have to agree and you can challenge that BEFORE any legal action is brought. It would be the first line of defence upon receipt of a letter before action, that the letter needed to be signed by all parties.

If such a thing arrived, you would seek to reach settlement for £100 or £200 with one of the tenants not mentioned and get them to sign a settlement agreement, that would snooker the tenant bringing the action. Of course if they were present on other tenancies you may want to reach similar agreements with other tenants that can snooker them.

You have mentioned a lot of dates so I would suggest you not mention more here because it might identify you and be used against you.

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

bit.ly/davidpip

For now it seems like a waiting game, if you can get to Oct 2018 then their case will be even harder, although that may depend on the actual dates but do not mention them here.

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mr.spacemaker 15th November, 2017 @ 00:19

@david

quick question about a post 2012 pre 2015 deregulation act tenancy as i'm drowning in facts, have forgotten the info, and can't find it in the last 5 pages of this discussion!! need this info for a friend....

deposit was protected in time by the agent, and PI served as part of the tenancy agreement. the tenancy became an SPT six months later and deposit remained protected, but PI was not re-served.

- is there a potential breach (and sanction) for not re-serving PI?
- would this prevent S21 eviction? bearing in mind deposit was and still is protected...
- what happens after october 2018 when the 2015 de-reg act applies fully? no breach and nothing to worry about?

also, in this case, the lead tenant for the deposit no longer lives at the property - they were a couple, both named on tenancy agreement, but have separated. does that complicate things (for them)? as far as i'm aware, it is only this person that could seek a sanction, and presumably they would not be able to do this as a counter claim to prevent or delay an eviction, because they are no longer living at the property...

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David 15th November, 2017 @ 01:45

@Mr Spacemaker

2012 was a crazy time, not only was there updated legislation but a plethora of High Court and Appeal Court cases, so it may depend on the month of 2012.

If the deposit remained in the scheme your friend is going to be looked on favourably by a Court. At that time re-protecting a deposit simply meant issuing new PI with the amended dates of the SPT, the money did not have to be returned as it was deemed as taken in the same way the SPT was created, by statute. Some people moved it from scheme to scheme using the inter scheme transfer but mainly because of headless chicken mode.

I would never advise telling a lie, but I would say that if your friend is sure that they did serve the PI and has a copy of it, then it is very hard to prove a negative.

This is why I always advise people get the tenant to sign a copy but although the legislation says a tenant should be given a chance to sign it, they have all the time in the world as there is no time limit.

There is always a potential for a breach/sanction but...

For a claim for sanction to be brought both of the tenants would need to agree to take action or one authorising the other to take it on their behalf. A letter cautioning them of potential for costs or just seeking a settlement with the Ex would snooker that.

I can give you the case law for that if you need it.

As for eviction, it is very thin to rely only on the PI if the deposit is still in the scheme, never say never but again it is the word of one person against the word of another.

In Oct 2015 the Deregulation Act came into being, the premise is that if you originally protected a tenancy after Oct 1 2015 and said tenancy become SPT it would be deemed as if the deposit had been protected. After Oct 2018 this also applies to tenancies before 2015, but there are some caveats for tenancies covered explicitly elsewhere. For the most part it means that your friends SPT will be deemed as protected.

The couple splitting does complicate things, it really depends on what the tenancy agreement says specifically about tenants leaving and/or being replaced. Unless there is a release, then they are both party to the agreement, both liable for arrears and both must be served with S21.

The Ex will usually baulk at this, at which point your friend can say they they do not want to hold him responsible but it will depend on their former partner and what agreement can be reached.

I have not got the full picture but I suspect the tenant will be given advise to put in a counter claim regardless, that counter claim can be challenged.

Remember a lot of people are wanting to be evicted as they think it is a route to social housing BUT if they made themselves homeless by arrears, antisocial behaviour or giving notice then the Council will say they do not have a duty to them.

The Ex leaving does not prohibit them bringing a counterclaim to invalidate the S21 on the basis that the deposit has not been protected nor PI served. However, it is likely they WANT the tenancy to end as it ends their joint and several liability to the contract.

If your friend had served a PI notifying new details of SPT tenancy dates, same reference number etc years ago and has a copy of such a document then they could dispute the counter claim saying the deposit was indeed protected and the PI served.

A Judge will consider what is in front of them, if the tenant has arrears it looks bad on tenant, if Landlord forced entry it looks bad on Landlord. If Ex is in Court and says does not object to eviction it holds sway.

The biggest concern of the Judge is the intention of the legislation; the protection of the deposit. If it was protected from day 1 and still is they may decide in the Landlord's favour, I have seen many cases do just that.

Worst case scenario is that she has to issue PI again and a new S21, if they did try to get sanctions in the counter claim I would push back and say they had not filed the appropriate forms. In the event it is heard then there is always the mitigation angle, very unlikely to be hit with more than 1x deposit.

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mr.spacemaker 18th November, 2017 @ 20:27

@david

If they write a new tenancy agreement in the current tenants name (and therefore create a new tenancy), then there would obviously be no problem with a future S21 eviction, as long as deposit protected and PI given in the 30 day time limit, right?

Would this still leave the door open for them to pursue a sanction for a perceived breach regarding the PI when the tenancy became SPT in 2013? My gut feeling is that it would not be worth it for them as it would be a very weak case, what with the deposit being protected in time and the only issue being the difficulty in proving that the PI was re-served when the tenancy became an SPT. Also, there is the added complication of both parties needing to be involved in the claim, but I think in this particular case that would not be an issue for them.....

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anne kersey 19th November, 2017 @ 17:46

Wonderful free advice thankyou

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David 19th November, 2017 @ 23:16

@Mr.spacemaker

At the moment she has two people responsible for the property, are there any arrears, is there any damage?

I would not suggest moving to a new contract with the same tenant without a thorough inventory and even then they would need to explicitly indemnify their ex, just so they could avoid risk if him being blamed.

If they had a new tenancy it would not be substantially the same so minimum 6 months, deposit needs to be protected, Gas Safety, EPC, How to Rent and as I said inventory.

Case can be bought for old tenancy for up to 6 years but as I said very thin on no PI alone and hard to prove a negative.

I am not clear on why she would want to give a new contract to someone she is going to issue an S21 to?

As you say, unlikely they would bring a case.

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mr.spacemaker 22nd November, 2017 @ 20:20

@David

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

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

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

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

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Milner James 23rd November, 2017 @ 16:39

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

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

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

Any advice appreciated

James

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David 24th November, 2017 @ 13:35

@James

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

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

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

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

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

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

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

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

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

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

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

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

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

Wait for a confirmation and take notes

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

Wait for a confirmation and take notes

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

Wait for response and take notes

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

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

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

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

Then ask them if they are deliberately contravening this guidance

Wait for response and take notes

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

Wait for response and take notes

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

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

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

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

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

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

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

Did the Tenant not attend?

What were the terms of settlement?

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

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

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Milner James 24th November, 2017 @ 14:23

@David

Thank you so much for your help.

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

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

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

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Bob 24th November, 2017 @ 14:46

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

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David 24th November, 2017 @ 15:56

@James

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

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

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

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

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

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

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

Technically they are in breach of the settlement agreement.

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

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

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

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

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

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Vicky Brenzeck 28th November, 2017 @ 13:25

Hi there,

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

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

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

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

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

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

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

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

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

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

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

Thank you very much

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David 28th November, 2017 @ 15:07

@Vicky Brenzeck

Hi

You are right on most of what you have assumed,

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

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

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

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

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

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

Were you listed as the Lead Tenant?

Was there a break clause in the tenancy agreement?

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

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

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

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

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

Examples of this may include

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

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

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

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

bit.ly/davidpip

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

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

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

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

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

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

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

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

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

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

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

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

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Vicky Brenzeck 28th November, 2017 @ 20:40

@David

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

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

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David 29th November, 2017 @ 01:07

@Vicky Brenzeck

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

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

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Vicky Brenzeck 29th November, 2017 @ 12:35

@David

Hi David,

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

Is there another option?

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Simon Pambin 29th November, 2017 @ 13:08

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

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

It's not showing any new users since Monday.

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David 29th November, 2017 @ 15:38

@VickyBrenzeck

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

1. Click on Landlord Forum at top of this page

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

3. Click Red Register button

4. Scroll to bottom and accept agreement

5. Enter the following information

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

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

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

7. Once activated then login to forum site

8. Once logged in follow the link below

https://bit.ly/davidpip

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

Hope this helps!

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

@david

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

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

@David

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

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

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

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

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

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

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David 30th November, 2017 @ 14:55

@MrSpacemaker

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

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

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

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

So first four words

Then the directions

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

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

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

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

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

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

Also check his other references.

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

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

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Cafedemichelle 8th December, 2017 @ 14:50

Hi - I wonder if you can help please?

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

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

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

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

Many thanks

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David 9th December, 2017 @ 02:08

@Cafedemichelle

Your appear to have your wires completely crossed.

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

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

Read up on post Oct 2015 Section 21 changes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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