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 landlords 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.

If you’re a tenant that’s trying to figure out what your rights are because you suspect your landlord hasn’t protected your deposit, you’re also marginally in the right place. But bear in mind, I’ve written this blog post from the perspective of a landlord, so you may need to backward-engineer the information so it’s relevant to you. Alternatively, you can just jump over to my tenant deposit guide for tenants :)

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

To be in compliant 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 is presumably the vast majority of landlords).

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! HELP!

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 you can’t serve a valid Section 21, and your only option is, possibly, serving a Section 8 Notice where you must prove grounds for eviction (which you may not 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.

    Suggestion: just come clean, say you didn’t follow the proper procedures and you’re trying to rectify the situation. Don’t mention the entitled compensation.

  • If you’re trying to get rid of a rogue tenant and you have grounds for eviction (e.g. your tenant is in 2 months rent arrears), serve a Section 8 (as already covered, unlike with a Section 21, you don’t need to comply with the tenancy deposit legislation in order to serve a Section 8.
  • 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!

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725 Comments- Join The Conversation...

Showing 675 - 725 comments (out of 725)
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David 20th December, 2018 @ 14:12

Hi

I had a tenant for three years in a property, it was my first time being a landlord. I registered for a DPS account but somehow never filled out the specific deposit correctly so I was never correctly protected when I was genuinely under the assumption it was.

I gave the tenant reduced rates for the first few month as they were waiting for their partner to move in with them. I didn't increase their rent through out the whole duration. They decided to move to a bigger place and I returned the deposit in full, even though I could have pulled them up on certain damages.

A year after they more than amicably moved out, they have discovered my mistake and are threatening legal action to make a quick buck as they have suffered no negative impact.

I more than understand I am in the wrong and am willing to make a settlement, but what is considered a reasonable offer. 1/4, 1/2 or the whole deposit.

Thanks, David

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David 20th December, 2018 @ 22:50

Hi David

You are very lucky to have caught it early, i.e. before they contact a Solicitor or Claim firm.

As a novice Landlord you have some mitigation and there does not seem to be anything they can drag up to paint you as a rogue landlord (e.g. failure to get gas safety every year).

So in accordance with case law a Judge us completely entitled to award what they see fit which may be 1x, but with three years you have to consider how many tenancies there were. If you had one every six months that would be a lot of tenancies but if you had say a year and then went SPT that would be 2 tenancies.

The metric for a settlement can be what they would get in Court, it can be that plus what it would cost you to defend and/or their own legal costs. However, there are a lot of holes they can fall in, even some Claims companies make errors. Also bear in mind that they lose 35% of the sanction if the Claims company or Solicitor, so if they got 1x they would be better off seeking a settlement.

Also when considering a settlement the amount of the deposit might dictate the amount you would settle at, for example if you took £2500 as a deposit you would be loath to offer 25% but if your deposit was £500 you might well offer £300.

If you are dealing with them and not a claims company or Solicitor, you can start a bit low in the knowledge that they will push back and you will probably meet in the middle.

If a Solicitor or Claims company are involved you do not want to enter into protracted negotiation because they charge you to argue. Instead contact me via the forum and I will do a letter for you which uses a different approach.

If you are still dealing the the tenant the blog post below gives some suggestions for negotiation.

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

The details of how to contact me via the forum are above in post 663, I am working on a lot of cases at the moment so would reply to you immediately but not be able to do any case work until first week of January. If the case is as simple as you suggest then it will not take long.

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Sue 21st January, 2019 @ 01:51

I had tenants move in on February 2014 it was a six month contract then extended from August 2014 for one year I forgot to protect the deposit I put it into scheme on August 2014 now tenants moved out they are sueing through Solictor can they need advice what was the time limit back then

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David 21st January, 2019 @ 09:55

Hi Sue

Yes they are quite within rights to take legal action.

The number of claims will be determined on how the tenancy was "extended" and when the tenants left. For example if a tenant moves in

January 2017 for 6 months and then signs a new AST
July 2017 for 12 months and then leaves on
October 2017.

That would be three tenancies

The law in place at the time does not matter because you are liable under all of them.

It sounds as if you have been approached by a claims company who have used one of their panel Solicitors to send a letter before action.

As you have a live case I would not advise discussing further here on this open blog, I can help you reach a settlement if you wish to contact me via the forum. Once you register, you can click on this link to private message me: http://bit.ly/davidpip

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Vince 21st January, 2019 @ 16:02

Hi,

I forgot to register the deposit. Can I issue a new AST when the other has expired and register the deposit then? By doing this (if ok) will it resolve the problem? Thanks.

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Simon Pambin 21st January, 2019 @ 16:21

Your tenant can still sue you for non-protection, as you didn't protect the deposit within 30 days of receiving it. In theory, if you did time protecting the deposit and issuing the Prescribed Information to coincide with a new AST, it's just about possible that your tenant might not notice. However, if your tenant does spot the omission, you'll be on the hook for a bigger penalty because you deliberately left the deposit unprotected, just to try and dig yourself out of a hole.

Protect the deposit and issue the prescribed information now. Not only is that the right thing to do, it's also likely to be the least costly.

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Sand 22nd January, 2019 @ 12:27

@David
I am putting my house on the market and I have a tenant in there at the moment, they have told me that they are now going down the council route, which has made me panic as I gave all the relevant information out gas safe etc but totally forgot to secure the deposit in a scheme! the council are asking for all the relevant documents but I can't provide the document for the deposit, which will no doubt lead into the council telling them to stay put until evicted on the sale of the house. I have now registered the deposit but it is after 8-9 months after them moving in.
What can I do?

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David 22nd January, 2019 @ 12:55

@Sand

If you are going to evict before sale on S21 protecting the deposit albeit late may have rectified the issue, but not if you have not served the Prescribed Information.

The S21 will be invalid if it was not correct at the commencement of proceedings, S21 is an accelerated procedure and the service of the notice is considered starting the proceedings. So you really need to have all T's crossed and I's dotted before you serve, but you can reserve a new notice and withdraw previous notice, resetting back to the 2 month notice required.

Section8 eviction proceedings do not have that problem, whilst they are not conditional on the deposit, some Judges allow a counter action on the same ticket and may give the defendant time to file a counter claim.

The best advice I can give is to face this head on, if you failed to protect a the deposit of an assured shorthold tenancy, then seek to reach a settlement with the tenant BEFORE they speak to a Solicitor or Claims company.

The post below gives some advice on how to negotiate a settlement

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

You can be sure that the Council will give the tenant advice getting the S21 thrown out if it is invalid, they will advise them to do so at the last minute and I am certain a few may even refer them to a claims company.

They will not be automatically evicted on the sale of the house, their tenancy rights are not affected by the sale of the house. You must declare if you have sitting tenants to any buyer or agent. An investment buyer may be quite happy to take on your property with the tenant remaining.

You will still be liable for your breach, I would aim to settle at between £300 and 1x the deposit with a settlement agreement.

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Sand 23rd January, 2019 @ 11:42

@David
Thank you for your reply, as the deposit is now registered and the tenant was given all other relevant documents at the beginning (EPC etc) can a S21 now be served? As the tenant is wanting to go down the council route to try to be housed they will more than likely be told to be served an eviction notice to stay housed for longer

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David 23rd January, 2019 @ 15:36

@Sand

As explained in my previous post you need to serve the prescribed information, this needs to include the following below and especially the reference number

Do a search on your property and take screenshots of your deposit being found by a search by member of public putting in the appropriate details on your deposit company site. Claim companies will use a negative result on all three deposit companies in their bundle to show you did not have protection.

Remember in Court evidence is required to show you did things, EPC is not a huge thing, it is usually expected to be on site the property is advertised on, i.e. tenant had access to it BEFORE they signed. More important is that Gas regulations were complied with, I.E. that a safety inspection was carried out within 28 days and a certificate issued.

As I said in last post, if you remedy a problem you may serve the notice but the PI forms part of that remedy and if you have a Gas certificate problem there is debate, waiting on case law or change of law, as to whether it can even be rectified.

Prescribed information relating to tenancy deposits

2.—(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)—

(a)the name, address, telephone number, e-mail address and any fax number of the scheme administrator(1) of the authorised tenancy deposit scheme(2) applying to the deposit;
(b)any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act(3);
(c)the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy(4) (“the tenancy”);
(d)the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;
(e)the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;
(f)the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and
(g)the following information in connection with the tenancy in respect of which the deposit has been paid—
(i)the amount of the deposit paid;
(ii)the address of the property to which the tenancy relates;
(iii)the name, address, telephone number, and any e-mail address or fax number of the landlord;
(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;
(v)the name, address, telephone number and any e-mail address or fax number of any relevant person;
(vi)the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and
(vii)confirmation (in the form of a certificate signed by the landlord) that—
(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit.

https://www.legislation.gov.uk/uksi/2007/797/article/2/made

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Sand 23rd January, 2019 @ 16:06

@David

Hi David, could you clarify what you mean by:

Do a search on your property and take screenshots of your deposit being found by a search by member of public putting in the appropriate details on your deposit company site. Claim companies will use a negative result on all three deposit companies in their bundle to show you did not have protection.

As even though late it was completed, how can I find proof that it has been registered by someone else looking?

The gas safe certificate was in date and has been renewed since the tenant has been there.

With regards to the prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)— is this all in the tenancy agreement and has been signed by both tenant and landlord

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David 23rd January, 2019 @ 21:30

@Sand

You can check each deposit company by following the following and entering the deposit amount, date taken, tenant surname etc.

bit.ly/chkdep1

bit.ly/chkdep2

bit.ly/chkdep3

I do not know which one you are with but such a search will simply say "a deposit matching that amount is protected in our scheme" or something similar.

Of course you will be provided with more detailed information if you login to the portal as would the tenant.

Regarding your PI, I have seen a plethora of tenancy agreements that Landlords "think" include the PI but I have found fault in all of them and won every time a Landlord has tried to say the PI is in the agreement when in Court.

The PI cannot be served if the deposit has not been protected, the PI has to refer to an actual protection, if the deposit was not protected until recently the PI in the agreement cannot be accurate, the date of the agreement confirms that. If you want to argue this in Court bring your chequebook.

The reason the Landlord's are sanctioned is because if a tenant was to rely on that information, did a search on one of the above, they would be told the deposit was not protected and thus none of the scheme details would apply.

The tenant would have then lost all the surety of the legislation seeks to provide.

That is why there is a 30 day limit so that a tenant can check the status of the deposit, understand the way the scheme operates, understand their rights if there is a dispute and how they can have their say, etc.

I always advise that the PI is either provided on a separate page or as a page in the appendix with actual details including the reference number, the terms of the scheme and a copy of the certificate of protection. It is good practice for the tenant to sign a copy of these, BUT THEY HAVE TO BE ACCURATE OF ACTUAL PROTECTION.

Understand that a tenant will be advised to log into the portal and check the details of the protection. To make sure it was protected within 30 days of being taken, not from beginning of tenancy. Landlords should not think they can fool anyone, one has to get in front of it, then mitigate the loss by reaching a settlement.

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Sarah 22nd February, 2019 @ 07:26

I got one question. If a tenancy started in 2009 and the deposit was protected after 6 months, even though I have not received any prescribed information.
In November 2017 the landlord repaid the full deposit from his own pocket, without using the money of the scheme. In January 2018 he served S21. The case is in court for a while.

Now my question is: is the S21 valid if the landlord didn’t protect the deposit within 30 days and can he use his own pocket money to repay. I have checked online today now in Feb 2019 and the deposit is protected and available for repayment.
Will the judge agree with the repayment of the deposit by not using the scheme and grant possession to the landlord? I got a court hearing in a week time

Many thanks.

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David 22nd February, 2019 @ 13:19

@Sarah

I there is a limit of 14 days before hearing for filing a defence but you will probably get away with it if you HURRY UP.

The Landlord seems to have rectified the failure on the deposit front, it was protected when the S21 was issued, however if you have never been given the Prescribed Information you can argue that if you want.

What you need to argue for is time to make a Counter Claim, I can help you with that or to negotiate a settlement if you contact me via the forum, instructions are in post 679 above.

It is not guaranteed that the Judge will stop the S21, by itself it is not a reason to stop it as the deposit is now in a scheme and he has repaid it, but some Judges are sympathetic. The repayment does not stop the landlords liability to his/her failure.

You need to consider where you are going, because all you are doing now is delaying things, the landlord wants you out and out you will go, it is just a matter of time.

Now with a tenancy that started in 2009 I am guessing that there were in fact several tenancies, even if you only signed one and it expired, that counts as two as when it expired a statutory periodic tenancy is created in law if you remained in the property. Either way you are entitled to between 1x and 3x the deposit in sanction PER TENANCY because of the failure to issue the PI. The failure to protect for 6 months is a second failure so you might get 2x for that first tenancy and 1x for all subsequent tenancies.

You need to plan for the worst case scenario and see this deposit issue as a separate matter. It is possible the S21 will be granted and the Judge tells you that you were too late to file the Counter Claim, in which case he has to grant you between 14 and 42 days to get out, no more. You can still make a claim against the Landlord, just not as part of those proceedings in front of that Judge at that time.

You need to consider whether you could be classed as a vulnerable tenant, e.g. if you have children or have a mental health problem you can show medical evidence for or if you have a disability etc.

As your case is live I URGE you NOT to discuss it further here but to contact me via the Forum. We can put in a request for the Court to allow you an adjournment until you have had time to prepare a Counter Claim as you are too close for the other side to have evidence to defend it. You will need to pay the Court fee for the Counter Claim for it to be valid or get a dispensation if you are on very low income.

We can discuss more via private message in the forum.

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Sarah 22nd February, 2019 @ 15:08

Hi David thank you very much for your reply. It is much appreciated. I have sent you a private message.

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Matt 4th March, 2019 @ 10:58

Hi There, thank you for taking the time to explain these issues to us novices.

I also have found myself in a situation where I haven't protected the tenants deposit and I'm pretty sure they understand their rights as they have mentioned the deposit scheme. They moved in August 2008 and the council held £550 deposit on bond, the tenants also paid £500 cash deposit which is not protected.

The tenants have served notice and are leaving the property this month. They have not paid the final months rent and have not answered calls or texts regarding the issue.

What is the best course of action? I would prefer to have them pay the rent (£700) and return the deposit to them in full and inform the council that we don't require the bond money. However this still leaves us open to being sued. They entered an AST for 6 months and it has rolled over until now without being re-signed.

If the tenants don't pay the last months rent then we both have a reason to take each other to court - something we want to avoid!

Many thanks for your help.

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David 4th March, 2019 @ 11:28

Hi Matt

No matter what happens they can bring a case against you for EACH tenancy agreement and you should budget on it costing you at least 1x the deposit for each tenancy. The goal will be to reach a settlement and for many tenants it is far easier on them to accept a settlement than go to Court.

For you it is far better to deal with this head on than wait for it to get to a claims company who charge huge fees for what is essentially a template with Tenant and Tenancy details.

Interestingly in my recent negotiations with some of these firms they drop to 1x after receiving my response to claim, but do more work to justify hike in fees.

As you have a live case do not give me details of the tenancies here as it may identify you.

I can think of a letter that may help you, but I would rather they do not see it on the Internet as it would weaken it's impact.

I suggest you contact me via the forum, see post 679 for details for how to do this.

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Natalie 7th March, 2019 @ 10:44

I rented this house via a letting agent on 28/4/15.
6 months later the agency emailed to say they will no longer be managing the property on behalf of the landlord and that I will need to deal with her directly including paying her rent.
This was no problem at all.

In November 2017 I received a letter from my deposit do you want tha in November 2017 I received a letter from MyDeposits stating my deposit was no longer protected as my tenancy had ended. It hasn’t and I still live here.
I started on an AST of six months in April 215 and another was never agreed, so I have remained in a rolling tenancy since October 2015.

I have recently found out that the letting agent has closed down, they did not return the deposit to myself or the landlord.
My landlord didn’t re protect the deposit as she wasn’t aware she needed to or that the previous letting agent holding it had closed down.

I now want to give notice to my landlord as I have found a better property. But she is disputing her responsibility in this and will not give me back my deposit of £675.

She has not given me a new AST, she has failed to re-protect my deposit and she has not done the gas safety check I believe it is over a year late.

On this basis can I give a shorter notice period of maybe two or three weeks ?
And can I possibly withhold my last months rent as it is the same amount as the deposit she’s refusing to give back ?

I do not want to threaten court action as I need her to give a reference to my new landlord.

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David 7th March, 2019 @ 20:46

@Natalie

From a legal point of view, she employed the agent, they took the deposit whilst acting for her. She is ultimately liable for their failure to protect and for your deposit.

Assuming the original tenancy was correctly protected and you were correctly service with a complete copy of the prescribed information (not a certainty), then there is only the rolling tenancy (Statutory Periodic Tenancy) to claim for.

Do not worry about a reference, once she is made aware of her obligation she will negotiate to return your deposit, pay you a sanction of between 1x and 3x the deposit to avoid being held liable for these plus both of your legal fees.

As you have a live case do not give me more details here as it may identify you.

I can prepare a letter of claim for you with an offer to settle the matter including her providing and supporting a positive reference.

I suggest you contact me via the forum, see post 679 for details for how to do this.

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Gruff 20th March, 2019 @ 16:42

My dad started his tencey in 2014/15 i played his deposit through my bank, the landlord never protected it

He's on HB and the rent is covered bar £3.95 PW .
The landlord said if he cleaned the stairs and hall way (accessed by other flats in the block) he didn't have to pay (verbal agreement) but now he's saying that dads in arreas and he's going to evict him

He refuses to do repairs
I.e the window hinge broke he won't fix it
The hot water boiler from upstairs is leaking through the hallway stairs celling
The toilet wouldn't flush for 5 months. Had to use a bucket for it to flush
There is mould every where supposedly to my dad using the flat wrong! He doesn't have a dryer the window s are opened daily there is no form of heating bar a oil radiator which dad brought

Where does he stand please

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David 20th March, 2019 @ 21:33

@Gruff

If his tenancy started in 2014/15 I imagine he has at least 2 tenancies (perhaps more), so he can make a claim for between 1x and 3x the deposit for EACH tenancy.

There are two ways to evict, the mandatory method for rent arrears requires 2 months of arrears and can be stopped in it's tracks by getting the arrears under 2 months.

The no fault S21 eviction requires evidence that

Energy Performance Certificate was provided before the tenancy
Valid Gas Safety certificate provided within 28 days and annually
The lastest How to Rent Document provided
Deposit Protected
Prescribed information regarding deposit provided

If we can find emails or something that confirms the claim the shortfall can be disputed.

The repairs need to be reported to the Council and an improvement Order will be issued. This will prevent serving of S21 for 6 months under revenge eviction.

Today the Homes (Fitness for Human Habitation) Act 2018 came into law, it will deal with the mould.

The Council will look at the mould and determine source or you can get a quote as if it is your property, it is often a gutter or wall that has damp outside.

As you have a live case I would not advise discussing further here on this open blog, He is in a very strong position because he can inform the Landlord of the above and done properly it could be dragged out for 12 to 18 months. I can help you reach a settlement if you wish to contact me via the forum.

Once you register, you can click on this link to private message me: http://bit.ly/davidpip

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Tim 27th May, 2019 @ 18:29

Hi David,
Just want some advice please. I had started an AST as a Landlord with a tenant a year ago and forgot to protect the deposit. AST went on SPT as AST was not renewed. Now I have realised my mistake. What do I do to protect myself now? Please advice!
Thanks
Tim

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David 28th May, 2019 @ 11:31

@Tim

Protecting it as soon as you become aware offers SOME mitigation, so I would get on with that.

The tenant will be informed by the deposit company, but that is not a problem unless you are in a hostile situation with them.

You will potentially be liable for between 1-3 times the deposit per tenancy but can usually negotiate that down to 1x per tenancy, you want to get ahead of it by negotiating a settlement agreement BEFORE they speak to a claims company.

You do not say how many tenants there are, if they are not partners or related you may be able to settle with one of them with a firm agreement (I can help with that) and snooker the other tenant(s).

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Tim 29th May, 2019 @ 19:39

Hi David,
Thanks for your message and offer to help. I had one tenant during this time, Tenant has a partner living with him. Both are on the contract. They are still living and no problem so far.
Thanks
Tim

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David 30th May, 2019 @ 11:35

@Tim

I always think that it is a good idea to face these things head on, you can say that there was an admin error at your end or some try to suggest that they are moving it from one scheme to another (as often happens when moving from an agent to a Landlord managing property).

Either way you want to lock them down with a settlement agreement, the article below is for once they have twigged that you screwed up but you can adapt the process

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

As you have a live case I would not advise discussing further here on this open blog, if you want help doing a settlement agreement I suggest you contact me via the Landlord forum Link at top of page Once you register, you can click on this link to private message me: http://bit.ly/davidpip

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Tim 2nd June, 2019 @ 10:37

Hi David,
I am unable to PM you. Can you help please.
Thanks
Tim

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David 2nd June, 2019 @ 23:06

@Tim

I got your PM and replied.

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Matt 16th June, 2019 @ 10:31

Guys...

In a pickle!

Became a new landlord in 2017, block of 4 flats!

I assumed (clearly incorrectly) that the Letting Agent posted the bond, but reality this wasn't the case. Tenant moved out Jan 2019, without any notice, trashed the place and didn't pay the last months rent! GREAT!

I then received a court notice for £2000 for the bond (Bond x £525 x 4) apparently its the law!

So yes i'm a muppet for not understanding the issues of protecting the bond, but is this correct? I have to respond to the court paperwork, am I best just paying the dam money?

it cost us nearly £900 to make good the property!

HELP....

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David 16th June, 2019 @ 20:45

Hi Matt

Do not worry, we will not only negotiate this down but the threat of a counter claim will do the trick but the approach is different depending on the firm.

As you have a live case I suggest you contact me via the forum using the link below

https://www.landlordforumproject.co.uk

Join the forum, confirm the email and then follow the link below which has an option to send me a private message.

http://bit.ly/davidpip

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annamarie 18th June, 2019 @ 16:22

Hello, i have been in a rented house for 2 years this december, i have just checked all the deposit schemes and they have all said my deposit is not registered. I have a letter from my letting agent to say it is with TDS however after speaking to TDS they said it is not registered in either the insurance or the custodial scheme.
What should i do now?

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David 18th June, 2019 @ 16:35

@AnnaMarie

I can help you write a letter to achieve a settlement out of Court without using a claim company (who take 35%) and without the onerous fees that the claims companies put on Landlords.

If you would like to contact me via the forum using instructions in post 703 I will draft you a letter after collecting the details and verifying you definitely have claims.

Your Landlord should be pleased they have avoided a claims company.

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Lynn 26th June, 2019 @ 13:39

Can a landlord take a month in advance rent and not protect it if the tenant is in agreement
Thanks

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David 26th June, 2019 @ 13:55

@Lynn

There is no avoiding taking a deposit and you are no longer allowed to take more than 5 weeks deposit (new tenancies from June and all tenancies from June 2020).

You can take a months rent upfront but you can't construct ways to avoid deposit protection and expect to be able to make deductions, in other words if it looks like a duck and quacks like a duck, it IS a duck.

All the claims company has to do (and I have had many do it) is claim under the legislation and ask the Judge to deem it a deposit.

If you do not take a deposit and there is nothing to protect you for the performance of the contract save litigation of breach of the contract then there is nothing to protect.

You can also take 6 months rent on a revolving credit but in such circumstances I strongly advise taking a deposit as well and protecting it just to avoid your financial arrangement being deemed as a deposit.

It is far easier to just take the deposit, protect it in a custodial scheme so there is no fee and obey the legislation. You have every right to take a deposit for the performance of the contract, all you have to do is protect it. Also it is often easier to have the DPS decide if you can make deductions or you can still go to Court by declining them being arbiter.

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C.A.E 13th August, 2019 @ 14:30

Hi David,
I have left my problem on the "Periodic Tenancy" page as I did not know this existed!
Now am being shafted by ex tenant!!...regarding Deposit Protection.
Please advise on best course of action asap.

Thanks: C.A.E.

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David 14th August, 2019 @ 06:57

@C.A.E

Posting a reply to the wrong thread does not help the blog and others then respond with further offtopic comments, please copy it here or use instructions on post 703 above to PM me.

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David 14th August, 2019 @ 07:18

@CAE

I found it now

For tenancies since October 2015 this would not be a problem, in the Deregulation Act it says that if the original Tenancy fully complied with all the laws on deposit protection then the SPT would not need re-protecting.

We can negotiate this down to 1x the deposit, maybe less once I get the exact details of the tenancy.

I would be happy to help you further, as this is a live case and there is a risk that you prejudice yourself on a publicly accessible blog, I suggest you PM me using instructions on post 703 above.

=====

"HI,

I NEED SOME HELP AND ADVICE PLEASE.I'M A LANDLORD AND THE FIRST 2 YEARS WITH MY TENANT WE HAD AN AST AND THE DEPOSIT WAS PROTECTED,BUT AT THE END OF THE SECOND YEAR WE AGREED TO LET THE TENANCY RUN BETWEEN US AS A "ROLLING CONTRACT" OR [PERIODIC TENANCY AS I NOW KNOW]AS THE TENANT WASN'T SURE OF STAYING OR ANY FUTURE PLANS ETC..SUFFICE TO SAY I LAPSED THE DEPOSIT PROTECTION AND THE PERIODIC TENANCY RAN FOR A FURTHER 2 YEARS!

THE RELATIONSHIP WITH THE TENANT WAS ABSOLUTELY FINE THROUGHOUT THE 4 YEARS AND EVEN UP TO EXIT, A MONTHS NOTICE WAS GIVEN BY THE TENANT THE EXIT OBLIGATIONS WERE ALL MET ETC ON BOTH SIDES AND THE DEPOSIT WAS RETURNED IN FULL [£1400] ALBEIT ME MENTIONING THAT I HAD LAPSED THE DEPOSIT PROTECTION,STILL NO PROBLEMS.NOW 10 WEEKS LATER I RECEIVE A LETTER BEFORE ACTION [TEMPLATE] STATING MY FAILURE TO PROTECT THE DEPOSIT FOR THE REMAINING YEAR/S AND PURSUING ME FOR UP TO 1 TO 3 TIMES THE DEPOSIT AMOUNT!............WHERE DO I STAND?

ADVICE GREATLY APPRECIATED ASAP."

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Beth22 16th August, 2019 @ 18:39

My landlord told me they would give me one months free rent every year after my first year, i have now been in the house nearly three years and they have gone back on what they said. They said they cant offer that now, Was this verbal agreement legally binding? (nothings on paper) also my deposit has not protected for the three years either.. what should i do

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David 17th August, 2019 @ 09:46

Beth22

Verbal contracts are legally binding but the issue is proving them, if you have emails where you referred to what was said and replies to such emails that did not say "what the hell are you talking about" then that might help.

However, what you probably DO have a chance of is getting, is between 1x and 3x the deposit PER tenancy, this breach of the law might be used to help negotiate your free rent but chances are the Landlord would issue you with a S21 and so get rid of any obligation.

You have at least 6 years to make a claim, potentially 12 years in some circumstances.

If you want help with the letters that you need to send as a legal requirement before taking action then please use the instructions in post 703 above to contact me via private message on the forum site.

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Nicky 20th August, 2019 @ 13:34

Hi there

I just wanted to find out if I can let my new tenants move into the property if I haven't paid my previous tenants their deposit back yet? We have still not come to an agreement regarding the amount.

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David 20th August, 2019 @ 16:59

@Nicky

If there is likely to be an argument over the state of the property as they left it you will need to have good evidence that is timestamped. Ideally you will have done an inventory check before and after, these are what you will need to rely upon with the Deposit Protection Company or Court.

I always advise people to video the property before and after, then closing in on existing and new damage.

You can go ahead and rent it if you already have all the evidence you think you need and you have repaired the damages (because you can only really claim if you had the damages repaired and suffered loss).

I would advise you to be wary of anyone rushing to get into a property, nobody wants long voids but do very solid reference checks, use a third party AND call their employers, see payslips and ID of course.

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Mary 22nd August, 2019 @ 18:29

In Jan 2015 I let my house for the first time. I had got a new job and very quickly moved 70 miles away. This is the only time I have let my property and have no previous experience of being a landlord. I found out about the deposit scheme however with moving away myself, changing jobs and changes in personal circumstances I forgot and the deposit remained in my account until tennants told me they were moving out in July 2018, after 3 years and 6 months. I provided a 12 month tenancy agreement for the first 2 years however did not issue any agreement since Jan 2018- for no reason other than my other inexperience and nativity. Anyways, on moving out I realised I had never protected the deposit and explained this to the tenants. We have always had a good relationship and I have been quick to fix issues and allowed them to have cats and a dog when requested. I was happy to return their deposit however their cats had destroyed my carpet and I asked if we could agree on a contribution towards replacement. They have seen the potential financial gain in my genuine mistake and I have received a letter from a solicitor demanding 3 times (x2 for each tenancy agreement) to be paid within the next few weeks. What can I do?

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David 23rd August, 2019 @ 08:38

@Mary

Your novice status may help mitigate your situation legally.

As things stand you have put a bit too much detail in your post about exact dates and I am reluctant to go into too much detail as it may prejudice you because you can be identified.

I think you need to get in front of this and reach a settlement with a written agreement, I can help you with that.

I would be happy to advise you further and I suggest you PM me using instructions on post 703 above.

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Sarah 25th August, 2019 @ 23:12

Dear All,

I am desperate for some advice please

I took out a AST in Aug 2017 deposit protected with letting agents ( £2500 with Agents )

In Feb 2018 LL took over and in Aug 2018 LL asked us to sign a new 12 month AST tenancy agreement.

Landlord issued a section 21 in March 2019. It was a revenge S21 because she had used the address for schooling and it backfired. So she demanded I wrote a letter to say I was moving out.

Our 17 year old daughter battling Cancer was rushed off to hospital with Carbon Monoxide poisoning this is when we found out the last two Gas safety certificates was by the L/L best friend who isn’t Gas safety registered.
HSE are prosecuting.

The deposit is still protected with letting Agents £2500 property oubudsman are investigating them and ICO so we have no relationship at all.

Is this new Section 21 valid or is it invalid failing to register our deposit, any information will be greatly received. Our daughter is just about to go to Transplant and this stress is not good at all for her at the minute. Thank you all in advance

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David 26th August, 2019 @ 18:30

@Sarah

As you have a live case and facing eviction, I think it is important that you contact me via the forum, please use the instructions on post 703.

I would need to see the paperwork provided to be totally accurate, but on the face of it the S21 is not valid on several counts.

Do not worry because nobody with an AST can be evicted without a Court Order and you are a long long way from that even being a possibility.

Furthermore there are some critical things that you must NOT do this month, so please contact me via the forum and I will explain.

I wish your daughter all the very best.

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Jeanett Brown 5th October, 2019 @ 07:56

I have enjoyed reading your blog. Useful information.

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nick 14th October, 2019 @ 23:27

Hi,
My tenants moved in back in May. A lovely couple or so I thought!
I protected their deposit but it was two days late purely down to work pressures making me lose track of the days.
I didn't issue the proscribed info as I didn't know about it.
I also didn't give the guide to rent booklet
My gas certificate was up to date, thankfully.
My tenants haven't once paid rent on time and have acted as if it is their divine right to pay as and when they feel like it.
They are now 3 months in arrears because I believed their relentless sob stories and hoped they genuinely meant it when they promised they would catch up!
They have made a token payment fairly recently but have since ignored all my efforts to make contact with them.
There were complaints of anti social behaviour twice in the first couple of months of their tenancy but I didn't know I could have applied for possesion via S8 within the first 6 mths I have been waiting for the tenancy to end so I could serve S21 but now realise I could have problems.
Should I give the deposit back and serve S21.. do I still need to give the proscribed info?
Shall I keep the deposit in the scheme but serve the information?

Shall i serve section 8 on the basis of mandatory ground 8 and discretionary ground 11, I am going round in circles online and really need advice please.The building's management company has suggested that I pay them off , is this legal?
Thank you in advance

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David 15th October, 2019 @ 11:00

@Nick

I think you have to accept that you have dodgy tenants and just accept it is going to cost you money and hassle to get rid of them. Paying them off does not often work as you need to wrap it all in a very tight agreement and if they do not go it just creates another tenancy in law which is more hassle.

I am a great believer in using the appropriate law for the circumstances, as you have cause then S8 is the way I would proceed.

I would not would not waste your time on S21 at this stage because of the risk of it being dismissed, although we may add it later as a belt n braces exercise.

When doing a S8 it is important to have as many causes as possible so that if they bring the arrears up to date before the hearing the Judge will lean towards ending the tenancy and allowing eviction anyway.

Reading your post it seems you have the following S8 Grounds

Ground 8 Arrears
Ground 10 Any amount of rent remains unpaid
Ground 11 Repeatedly Failed to Pay
Ground 12 Any non rent breach of terms of the contract
Ground 14 Antisocial Behaviour

I would get a letter from as many neighbours as you can confirming the ASB, ideally have a letter ready and ask them to just fill in their name and sign it or if you know them well enough that they are reliable have them draft their own. It is important that they list that the ASB was on multiple occasions and that it was excessive, preventing them from the quiet enjoyment of their own property.

If there has been any aggression or reports to the Police get that put in too and try to get a statement from the Police confirming that they have had reports of ASB and whether they attended.

Ask your neighbour if there has been any over occupancy, other than the couple. Also look through all your paperwork, go back to the references they provided and ask them again to confirm that their were no arrears or ASB. Check their work references, confirm that they were employed where they said they were and that their salaries what they said they were.

If any of it was false, get evidence of it and add Ground 17 as another cause. This can be a very powerful cause when used with others.

Give them the appropriate notice in your tenancy agreement for an inspection and do one to make sure the property is being kept in good order, look for any evidence of breaches & film it, smoking, drug taking, ANYTHING in breach of the agreement.

If they refuse to let you inspect, simply record the refusal text or email and add it to the Ground 12.

Have a look at the other ground from the list below in case there is anything else

https://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/#grounds

It is a common stunt for a tenant to quote deposit protection or other S21 failures in a S8 case, this needs to be batted down as soon as it is raised.

They are welcome to bring a Counter Claim for alleged Deposit Protection but these need to be paid for with a Court fee, they must be a Part56 claim in the Part8 track and they do NOT stop a section 8 claim they are merely an additional matter.

With regard to the deposit you need to look at it as a totally separate matter, I can help you get it negotiated down to 1x the deposit in most cases.

So I would start with the notice to inspect

=============
Dear X

In accordance with Clause x of our Tenancy Agreement I am writing to give you 48 hours notice of inspection of the property, I will be attending the property for said inspection on 18th October 2019 at 18:30, please make sure you are present.
============

Ideally you would have someone with you who is non threatening, a girlfriend, sister or an Agent, just to act as a witness, brief them on saying absolutely nothing. Have a spare phone recording audio in case anything kicks off. If they refuse entry then video yourself gently knocking and asking them to answer the door.

Then issue your S8 notice, I can help you with that if you wish or you can use the service listed on the right by Legal for Landlords.

That is about as much as I can say on this open blog and as you have a live case where detail can identify you, I would suggest you contact me via the forum private message system for further advice. See post 703 above for how to do this.

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Naive Landlord 21st October, 2019 @ 06:13

Loads of great information on this site, couldn't find anything relating to my case so am after some advice about how to precede:

I moved out of house and in with my partner and started renting my house out, renting to a family in 2015 in an AST, put deposit in scheme.. all great

2017, family split and deposit returned to my account, signed a new AST for 1 parent and child but fail to protect deposit as I forgot :\ issued Section 21 and that 2 months has now elapsed, went to apply for accelerated posession order and realise its not protected, all other paperwork is ok (i gave EPC, gas check, rent guide). Tenant is on benefits and is being advised by housing options to wait for the bailiff letter before they find them somewhere else, the problem is I cant issue the APO due to not protecting the deposit :(

Should I put the money in a protected scheme now and give them relevant info and reissue S21 or return the deposit amount asap in cash/cheque (and get a receipt from them)? Then wait the 2 months and reapply for APO

Relationship with tenant is good but they are being advised to stay and i need the house back ASAP.

Any help is appreciated

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David 21st October, 2019 @ 15:09

@Naive Landlord

As so often happens, it is the Council that will prevent this go forward, what they are doing is actually contrary to legislation & Guidance (to advise to wait for bailiffs, as it increases the debt of the tenant).

However, your section 21 is Invalid if at the start of proceedings the S21 does not have prerequisites.

I have seen some technical argument about when exactly the start of proceedings is; on the issue of the S21 or when the accelerated procedure is started. I have seen some County Court that ruled on the latter but I have successfully argued the former on numerous occasions.

If you have paid the fee you lose nothing to try except the risk of legal costs.

My advise would be to protect the deposit immediately, you did not say whether the 2017 tenancy was replaced or became a statutory periodic tenancy. It is important that the S21 notice relates to the tenancy currently in force or else it will not be valid.

For the record, If the 2015 tenancy started after Oct 2015 you would have been better off you had never issued the 2017 tenancy, but left it as AST that way the initial protection would be valid in accordance with the Deregulation Act 2015 which says if the first tenancy is protected in accordance with the law and remained protected since then subsequent tenancies are deemed protected.

You did not mention the PI so that needs to be served this time.

If you wish contact to me via the forum private message system for further advice. See post 703 above for how to do this.

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Jacqueline 3rd November, 2019 @ 12:14

I have a tenant upon her moving in I did all the usual things gas certificate right to rent electrical certificate ect. I took 3 lots of rent of her and thought did the right thing depositing one of them in DPS. In May 2019 tenant didn’t pay rent. After me contacting her she paid £150.00 . Later on in June 2019 and July 2019 she paid £75.00 and £25.00. I received a email form Dps which stated that now we can only take 5 weeks deposit of a tenant. So I called them and they told me that as the tenanancy agreement is from before June 2019 ( Dec 2018) I would be okay to carry on the way things were and we I have a new tenant or it’s a year later June 2020 then I would have to change. Now the tenant has moved changed electric and gas ect. Not surrendered keys . I have to go down the road of section 21 and she is also threatening legal action over the extra months rent which as of June 2019 I only had part of that money.

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David 3rd November, 2019 @ 12:24

@Jaqueline

I have some case law regarding advance rent situations like this.

As this is a live case, I suggest you PM me using instructions on post 703 above, so I will be able to advise you further.

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