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!

153 Shares

741 Comments- Join The Conversation...

Showing 691 - 741 comments (out of 741)
Guest Avatar
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.

691
Guest Avatar
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.

692
Guest Avatar
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.

693
Guest Avatar
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

694
Guest Avatar
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

695
Guest Avatar
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

696
Guest Avatar
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).

697
Guest Avatar
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

698
Guest Avatar
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

699
Guest Avatar
Tim 2nd June, 2019 @ 10:37

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

700
Guest Avatar
David 2nd June, 2019 @ 23:06

@Tim

I got your PM and replied.

701
Guest Avatar
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....

702
Guest Avatar
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

703
Guest Avatar
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?

704
Guest Avatar
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.

705
Guest Avatar
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

706
Guest Avatar
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.

707
Guest Avatar
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.

708
Guest Avatar
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.

709
Guest Avatar
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."

710
Guest Avatar
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

711
Guest Avatar
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.

712
Guest Avatar
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.

713
Guest Avatar
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.

714
Guest Avatar
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?

715
Guest Avatar
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.

716
Guest Avatar
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

717
Guest Avatar
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.

718
Guest Avatar
Jeanett Brown 5th October, 2019 @ 07:56

I have enjoyed reading your blog. Useful information.

719
Guest Avatar
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

720
Guest Avatar
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.

721
Guest Avatar
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

722
Guest Avatar
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.

723
Guest Avatar
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.

724
Guest Avatar
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.

725
Guest Avatar
Mary 4th January, 2020 @ 20:27

Hello,

I had two tenants in my property for 18 months. They moved out 2 and a half months ago without telling me, and they neglected to tell me that the house was broken into during their time there. As I didnt know they no longer lived there, I didnt get a new tenant and so I have lost £1400 worth of rent. They have been consistently bad at paying rent on time, but I have been lenient with them, sending gentle reminders everytime rent was late.

When I found out they had moved out, i contacted them to ask when they left. They told me they emailed me (which they didn't) but I asked them to send a screen shot as proof. They then asked me to send them proof of a deposit protection scheme. BOOM. I dont have one! I originally lived in the house myself with a lodger, then I moved out and got the second tenant to sign another lodger agreement. So both have signed lodger agreements and dont have their deposits protected. Obviously I would have paid the deposit if they told me they were leaving.

I was hoping to claim for the two and a half month rent I am missing but now I dont know if I have a leg to stand on. What do I do?

Thanks,
Mary

726
Guest Avatar
David 4th January, 2020 @ 21:40

@Mary

I have had several similar cases, two in the past year and we won both of those, although it will depend on the facts and evidence.

I do not want to disclose the legal strategy that you need here on an open blog as it could work against you.

I suggest you PM me using instructions on post 703 above, so I will be able to advise you further.

727
Guest Avatar
Luisa Love 14th January, 2020 @ 19:50

It's good to spy on this scum bag landlord blog. I'm A tenant and my highly intelligent Landlord didn't protect the deposit nor do they have an HMO - they also misspelled my name - well that section 21 notice was funny, I used it as toilet paper!

728
Guest Avatar
David 15th January, 2020 @ 09:49

@Luisa Love

I would give you the same advice I would give any Tenant or Landlord which is that it always better to settle these things.

If you need any help with understanding your legal rights feel free to use the details in post 703 to contact me via the forum.

729
Guest Avatar
Agata 17th January, 2020 @ 19:40

Hello,
I would like to write a letter to my tenant with a settlement proposal regarding a deposit that has not been properly secured. Please, could anyone help me with this?
Thank you

730
Guest Avatar
Ross 23rd January, 2020 @ 23:49

As a tenant coming up for my 3 year in a property first time I've rented. I recently had a fault on my boiler. Contact landlord told to get it sorted and take it out the rent . Gas man came and I'm formed me that no gas safety certificate has been issued since 2017!.. told me that this needs to be done every year by law. Luckily I do have a carbon monoxide alarm in the kitchen. But this then got me thinking about my deposit and after checking with 3 deposit schemes there is no sign of it.... Now I'm in a position do I bring this all up and risk bad blood and them kicking me out or do I wait until I'm ready to leave before saying something?

731
Guest Avatar
David 24th January, 2020 @ 09:00

@Ross

You have up to 6 years from being made aware so there is no hurry, the maximum is likely to be 12 years.

You need to think about whether you want to remain in the property because there is no doubt that this may damage the relationship between you.

To be honest whilst Deposit Protection Failures happen for all kinds of reasons I have no tolerance for Gas failures.

Ironically if your landlord failed to have the required Gas Safety checks done within the first 28 days it may create a situation (under certain circumstances) where they can never evict you as long as you pay the rent.

The first thing I would check is the status of your deposit, you can check all three schemes with the following links and taking screenshots or use Jing to record a video of the deposit not being found. You can also make email enquiries to confirm not protected.

TDS http://bit.ly/chkdep1

DPS http://bit.ly/chkdep2

MyDeposits http://bit.ly/chkdep3

If you need any help with understanding your legal rights feel free to use the details in post 703 to contact me via the forum.

732
Guest Avatar
Becca21 24th January, 2020 @ 16:07

I paid my deposit to the estate agent upon taking a AST tenancy. After leaving the property i found it had not been protected. Letting agent said they didnt need to protect it because they accidentally gave it to the landlord along with my first months rent.
So they took my second months rent as a bond, and because it was after the 30 days of when you should secure it, they said they didn't need to register it and they put it in a ring fenced account.
However i have spoke to the TDS a few times and they said it should still have been registered.. I feel like i'm being lied to by landlord and letting agent, they only got back to me after i wrote a formal complaint after two weeks of trying to get an answer.

I got the bond back in full but i still wanted to find out what had happened!

Any help on what i should be would be a big help... #will.never.private.rent.again

733
Guest Avatar
David 24th January, 2020 @ 21:50

@Becca21

The law is very clear, there is no way out, you gave it as a deposit, it is a deposit and needed to be protected 30 days from the day you paid it.

It is the Landlord that is Liable, he may then have an action against the Agent if they had contracted to cover it for him but that is not your problem.

You are entitled to between 1x to 3x the deposit per tenancy.

Use the details in post 703 to contact me via the forum and I will help you get it.

734
Guest Avatar
Thomas 20th February, 2020 @ 08:55

Hello,

I have had a tenant who has left with some very small issues, broken shower screen, garden unkept etc. I deducted 400 pounds all with valid receipts and bills with photo evidence. I sent the remainder of the deposit back (deposit 1500 pounds so 1100 pounds back)

This did not go down well and she discovered due to my inexperience and failure I didn't put it into a scheme, I have had a first tribunal verdict back and I have been told to pay 2250 pounds to the tenant?

Is there anything i can do?

Also, i don't have the money to pay this back due to my circumstances, what happens if I can't pay?

Really can't get my head around this as I was a very attentive landlord.

regards

Thomas

735
Guest Avatar
David 20th February, 2020 @ 12:05

@Thomas

From what you say you have a sanction of 1.5x the deposit, the minimum you could get is 1x the deposit per tenancy. An SPT is also a separate tenancy if the original tenancy was after Oct 2015 and not protected.

If you sought to change this you would open up a risk to costs that would dwarf what you have been asked to pay.

There have been some cases where the FTT has been found to have heard a case beyond their remit because they did not have a County Court Judge hearing the case but if you went down that route you may end up far worse off.

You can pay around £250 to ask a judge to amend the Order to give you more time to pay but you would have to show detailed affordability etc. Again probably not worth it, I suggest you beg or borrow to get it paid within 28 days to avoid it going on the Credit databases for 6 years.

Sorry I can't offer more hope or better prospects.

The penalty does not affect your right to seek the damages on your tenancy.

You have to be really careful to not just protect the deposit but have evidence of the PI being provided. Some embed this into their tenancy but fail to put the reference number from the DPS. TDS or MyDeposits, by doing having a space for this you have a "To Do" list entry.

I actually think it is worth having a separate stage in your signing up processes. So you may do a first viewing, then at a second viewing take the security deposit, have them sign the an inventory and have them fill in a form showing the amount and their email etc for the DPS or whoever you use.

Then an additional meet to sign the tenancy agreement which has the PI and includes the Scheme terms, as well as the reference number. You have them sign specifically that they accept deposit is protected (put a space for them to write where it is protected), have been given the PI, Gas Safety, EPC and How to Rent.

736
Guest Avatar
Emma 3rd March, 2020 @ 12:04

Yep, I am one of those that has discovered I cannot serve a section 21 notice as the deposit is not in a scheme. However I am now looking at the best way to put it right. We (as a family) bought 12 properties back in 2004, many of which came with longstanding tenants. It will take some serious digging through old documents to see if we even have a record of exactly how much deposit was originally taken by the previous owners for each property. Despite never increasing her rent, one of those longstanding tenants is continually and now seriously in arrears and we have unfortunately let her get away with it for far too long (she had a family etc that have all grown up now). We used to renew her tenancy every 6 months but eventually just let it roll onto a periodic tenancy. Looks like I will have to use section 8 with her but I would still like to know how to put it right with this and a couple of the other properties. What if we cannot find a record of the original amount of deposit? How could we then put it into a scheme? Is it even too late to do this? Given that her rent is only £370 I imagine the deposit was a fairly small amount back then, but given we may have to evict her I am trying to prepare for what might happen. It's fair to say that the same properties have never had an EPC or probably the How To Rent document - but at least they have gas certificates! Thanks in advance.

737
Guest Avatar
David 3rd March, 2020 @ 13:06

@Emma

You may be in a better place than you think, it is all going to depend on the dates of the tenancies, there has been a plethora of case law, amendments and amnesties.

You can S8 your tenant, but may get a counterclaim, there are ways to reach a settlement which may include them leaving but if the Council owes them a duty of housing they may not be able to leave.

Before putting the deposit into a scheme you need to make sure it needs to be, chances are the SPT does require it, absolute madness to renew every six months like that, I had a case where a tenant was entitled to £30k and that was being conservative.

I suggest you start with a spreadsheet of tenancies with all the pertinent dates, you will then be able to eliminate some and work out what you are facing.

As you overlooked this might I suggest you check each property to see if it requires licensing or would be considered an HMO, put that in the Spreadsheet too.

If she is on benefits you can get that rent paid direct to you and as she is on a SPT you can propose a rent increase and will almost certainly get it if you put it at the median of her current rent and what you can show the market is delivering in that area. Also look at the LHA max rates for the area the property is in, again, you will not face any resistance to going to LHA rates which are in the 30th percentile. If she does turn out to be on benefits it means you get more rent than you were getting, that may then mean you are more prepared to reach a settlement.

I have a lot on at the moment as have been quite ill but if you use the instructions on post 303 above I may be able to help you help yourself.

738
Guest Avatar
Emma 3rd March, 2020 @ 16:14

Hi David, how kind of you to reply despite being under the weather. I appreciate a lot of what you have said. My sister-in-law used to do a lot of the admin in the early days as she did not work at the time but that has changed over the years. All but three of the properties are now run (not very well) by a letting agent - something else I may well address as things develop. I know that a few of the properties are licensed by the local council but none are HMO. I have been reading up on universal credit and I have written to the tenants we now look after directly (all on periodic tenancy) for an update on their benefit status, the one we have a real problem with works a few hours so I assume she has some benefit - another letter went out today. I have also started to look at LHA rates too but wasn't sure, but now you have mentioned it I will definitely pursue. I am slowly trying to get our records in order - we have all been a bit lax in recent years with our own work situations, so a lot of it is our own fault. I have been looking for some kind of software/app that might help with keeping track but a spreadsheet for now - I have looked at propertyhawk but it's quite clunky in parts. I will look at 303 as you suggest. Thank you again for your advice, I'll keep on trying to get our ship in order! Thanks again.

739
Guest Avatar
Alexandros 6th March, 2020 @ 10:06

Rented a house for almost a year and gave 1750 to dover house lettings agency as a deposit plus 300 agents fees. Its been a month and a half that i moved out and both agent and landlord are avoiding my calls and texts. The landlord is in australia and the only person that is managing the property is the agent. I never had an inventory report dobe when i moved in. My deposit was never protected with any of the schemes.they made me fix things in the house and pay for them and they just provided the handymen. If the landlord is in australia and the agent is ignoring the letters my solicitors sent what is going to happen now??
Am I getting my deposit at some point or not?

740
Guest Avatar
David 6th March, 2020 @ 11:21

@Alexandros

Living in Australia does not exclude you from the UK Deposit Protection Law with regard to a UK property.

There is a procedure to follow before you take action and as long as you do things right, service is presumed.

Then once it goes to Court if they ignore that they will likely get the maximum sanctions, once that County Court Judgement is achieved it can be enforced against the very property you rented with an application for a charge.

If the Agent was providing the Landlord with a Full Service that included legal obligations then the Landlord will will have a potential action for negligence against the agent for the loss they have suffered, so with the right approach you can often get them "on side".

The difficulty is that some small agents run their cashflow on the deposits of Landlords and are quite happy to phoenix their company, but if they are sole traders you can go after them personally.

If you need any help with writing a strong letter to get your deposit back and to help negotiate a settlement feel free to use the details in comment 703 above to contact me via the forum.

741

Please leave a Comment...

Nobody

Nobody

Landlord

Landlord

Tenant

Tenant

Agent

Agent

Legal

Legal

Buyer

Buyer

Developer

Developer

Enthusiast

Enthusiast


Your personal information will *never* be sold or shared to a 3rd party. By submitting your details, you agree to our Privacy Policy.

Popular Landlord Categories

153 Shares
Tweet
Share
Share