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

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

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

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

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

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

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

I didn’t protect my tenant’s deposit!

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

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

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

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

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

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

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

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

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

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

Yes, it’s true.

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

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

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

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

As it stands, these are your options:

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

If your tenant hasn’t mentioned anything…

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

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

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

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

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

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

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

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

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

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

My letting agent did not protect the deposit…

Oh dear.

Your hired help has failed you. Common scenario.

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

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

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

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

576 Comments- Join The Conversation...

Showing 526 - 576 comments (out of 576)
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David 8th February, 2018 @ 17:49

@Hab

Sorry I thought you meant without deposit protection.

If not deposit was taken then clearly there is nothing to protect.

You are fine and you seem to have done all the other blockers to an S21.

Sorry for my misreading that.

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Elsa Phillips 14th March, 2018 @ 16:44

I did not protect the tenants deposit. When they left there were certain things that needed to be done that they had not done to comply with the terms in the lease. Costing were done and a figure agreed and they were returned the difference. Now 3 months down the line they are saying they did not have to comply with the conditions of the lease and as I had not protected their deposit they want their money back.
What can I do and do I have to pay it back?

Elsa

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David 14th March, 2018 @ 18:54

@Elsa Phillips

Yep they can come after you for up to six years from becoming aware of your failure to protect their deposit.

You should not be worrying about whether you have to pay it back unless it is more than 3 months rent, you should be worrying whether they will use a claims company and you end up paying their costs although I can help you with that.

Depending on the amount, my advice would be to wrap the repayment up in a settlement agreement, do not quibble or negotiate if the amount is less than one month's rent it is a good deal because that may be the minimum you have to pay.

See this page for further advice about negotiating but as they already have an amount in mind I would go for it as long as it is not more than the max settlement.

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

You did not say how long the tenancy was or when it started, if it was prior to Oct 2015 and you let the tenancy roll over to a statutory periodic tenancy then you could be facing two sets of 3x the deposit. If you renewed the tenancy for 3 years then each tenancy is liable for the sanctions, albeit that some Judges are questioning multiple sanctions do not count on it.

The failure to protect does not make the contractual obligations invalid, it is just that failure to protect renders you potentially liable for UP TO 3x the deposit. There is potential for mitigation but it will depend on how you have carried yourself and the details of the failure as well as whether you are a novice Landlord.

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@Bob 16th March, 2018 @ 09:55

Hello, some advice please?
My wife owns a property that used to be our family home until we moved out of there approx 5years ago. We had lovely tenants, and all was well for several years before they decided to move on. Towards the end of their tenancy, we had put the house up for sale in the hope we too could move out of rented accommodation and buy a place for ourselves. The old tenants did not want the uncertainty of a house sale looming over their heads, understandably so, and made their own arrangements to amicably move. All well, their deposit, which was protected was returned to them.
We decided to take the house off the market as there was little interest, most probably as a result of the looming Brexit issues.
Anyway, in March 2017 we took on new tenants, a married couple with 3 young children. We had made it clear that there may be the possibility that we put the house on the market again but not during the period of the AST my wife had with them.
At the end of February 2018, we arranged to meet with the family to advise them that we were thinking about putting the property on the market in March 2018 and see what interest we had. We were not in a as there is a penalty to be paid for early exit on a remortgage.
We were hoping that this would give them enough time to start looking for alternative arrangements.
This is when the problems started. A couple of days after the meeting with us, the husband tenant calls to say that he wanted to discuss something with us. I took the call on behalf of my wife, and he explained that he wanted us to serve him a section 21, as he wanted the local council to offer him accommodation. I said that I would have to look into it as we had never done anything like this before. The tenant had then sent me a link by text message for an evictions company, advising that i should take a look at them, and also saying that he would be happy to pay for my costs associated with the s21.
After doing some research, it all looked pretty straightforward but as i began to ensure we had covered all the bases in order to serve a section 21, it became apparent that through oversight, my wife had not protected the deposit, she thought i was doing it, and i thought she had done it.
Either way it was not done. We understand this is against the law and we have made a mistake.
I then explained to the tenant that we were unable to serve a S21 because of this, and it was at this point the wife advised me that they did not want to go down the route of a S21,her family did not wish for her to do this. And instead they wanted us to just give them a months notice and provide them with particulars of sales to prove we were indeed selling the business.
I then arranged for a local estate agent to come over and take photos, which was all done amicably between agent and tenant. I asked the tenant which date he wanted to start the notice letter from and for how long, as we were quite happy to give them as much time as needed, within reason. He advised that he would be happy to have the letter given to them at the expiry of the AST, which is the 21-MAR-2018, and i said i would be happy to give them notice until the end of April-2018.
The estate agent begins to market the property in the mean time online, and has some serious interest from one particular gentleman. When the agent tries to arrange viewings, the tenant becomes very odd and explains that he was not aware that viewings would happen so soon, and that because of his family commitments and issues he cannot allow viewings.
The agent contacts me, i try to discuss with the tenant, and the tenant advises that he no longer wishes to discuss the matter with me (I would like to point out that all of my comms with the tenant have been courteous and professional at all times), and will deal via email only with my wife.
Through the emails, he first advises that he needs the notice of intention of sale to be given to them, including sales particulars before he will allow any viewings. We said we were happy to do this, and also stressed that it was only one very serious buyer who we wanted to have him view the property at a time that suited the tenants, and that we would be happy for viewings to cease until after they had moved out.
Yesterday, the 15-MAR, we hand delivered a notice of intention to sell together with sales particulars, in the hope that the tenant would allow the just one viewing, and then we would leave them be until they moved out.
Not quite so, unfortunately. The tenant emails my wife an email with the starting phrase that she should take this email very seriously. He has now taken advice from the council and they have advised him that he needs to be served with 2 months notice if we are selling the house, and also needs to serve him a section 21. He is demanding the deposit back, as it was celarly not protected, and he will then allow for veiwings to commence.

Sorry for the long prose above, but we just wanted to seek out some advise and come up with a plan of action. We have been very accommodating with the tenant, and now feel that because we have been trying so hard to make sure they are happy and will move out at the end of APR-2018, we have been unwittingly pushed into a corner that is just delaying our sale and causing undue stress.

My wifes thinking is that we just return the deposit (how do we do this so as to not have the tenant cause further issues for is?), which we are happy to do so, and then serve a S21. My question here is can we serve the section 21as soon as the deposit has been returned, bearing in mind the notice of imtention to sell the house has already been sent yesterday and a break notice can only be served in 2 months time, giving a tenancy end date 2 months after that break notice, ie 4 months from yesterday, taking us to mid July. Or do we have to wait until we serve the break notice, then the S21? Naturally, if the tenant does not move after the S21 date, we will need to fo to court and arrange bailiffs, which will take another 2-4 months, taking us to mid Nov.

My thinking is that we put the deposit into a DPS immediately and serve the tenant the correct PI. We take the property off the market, and ask for them to sign a new AST, and calling the tenants bluff and leaving them to serve us notice to leave when they are ready. In fact the tenant had said at our earlier meeting, they themselves were thinking about trying to secure a council property or indeed leave the borough entirely as the wife was not working and they were having health issues with the children. If they dont sign, then the AST will automatically become a monthly periodic tenancy.

The issue is that we dont really know what the mind of the tenant is like now. One moment they wanted a S21 served on them, the next they didnt, and now they do, but will they move out at the end of that or not?

Do we send a strongly worded solicitor letter stating our decision? And regarding the deposit, we know we have messed up, and we know there maybe a strong possibility that the tenant may come back on us about this, but what can we do to best mitigate the whole situation, knowing that we will just have to take any repercussions on the chin.

Any help would be really appreciated. My wifes rhinking is that we just do what the tenant says, as she just wants them out, and my thinking is that what can we do to ensure they are are giben just as much a hard time as they are giving us, and if they wanted social housing they can do that off of their own backs and not with assistance from us.

In terms of current rent being paid, all is up to date, and from the tenant in the past I am led to believe that bcause they get Universal Credit, if they decided to refuse to pay rent, then i could go to the council to ask them to pay rent to us directly. Not sure if that is correct.

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Benji 16th March, 2018 @ 11:35

"Yep they can come after you for up to six years from becoming aware of your failure to protect their deposit."

I don't think that is correct David.
It is six years from the date on which the cause of action accrued.

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Benji 16th March, 2018 @ 12:03

Its just business, don't start playing games.
Return their deposit and serve a section 21.
As you will presumably be using a solicitor for the conveyancing anyway, might as well get them to deal with the lot. Make sure you choose a competent one.

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Benji 16th March, 2018 @ 12:22

Previous comment was addressed to Bob post 529.

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David 16th March, 2018 @ 14:05

@Bob

I am sorry you are going through this, I do feel you have been manipulated from the start by delaying. If you allow the tenancy to expire a Statutory Periodic Tenancy is created in Law. If you failed to protect the original deposit then you are potentially liable for a 2nd sanction of between 1x and 3x the deposit for that new SPT.

First things first, DO NOT RETURN THE DEPOSIT, protect the deposit with a Government approved scheme (DPS, MyDeposits or TPS) do this when you have finished reading this reply in full. Do NOT use an insurance backed scheme, pay their money into a custodial scheme such as offered by DPS and issue the prescribed information by 3 methods as soon as possible and certainly within the next 4 days.

You will still be liable for the initial failure but I can help you with mitigation etc to get it down to 1x rent or a negotiated settlement in due course.

Do NOT issue a new AST, if you want to call his bluff offer to renew your existing one, you can use a single piece of A4 to effectively convert it to a contractual periodic tenancy without creating a new tenancy agreement. All you will be doing is extending the existing tenancy until it is terminated by the tenant giving a months notice and leaving the property or you issuing S21 or S8 notice in accordance with the Housing Act.

Recognising that your tenant may not want to be co-operative and sign such a renewal, you could word this so that by they become bound by it even if they do not sign it, by remaining in the property at the end of the tenancy when it expires on the 23rd March, in that situation what would matter is that you have evidence that the paper is served.

Looking at the dates YOU HAVE LESS THAN 5 DAYS TO DO THIS or else a new SPT will be created anyway.

You MUST protect the deposit and issue the Prescribed Information BEFORE the SPT is created, protecting it gives you evidence that you carried out the action.

You could return the deposit by bank transfer taking screenshots and showing bank statements but this puts you in a weaker negotiating position with regard to settlement of the sanction issue. If there are damages to the property or other contractual performance issues you have right to ask DPS for some or all of that deposit.

Protecting IMMEDIATELY as soon as you become aware helps you in mitigation.

The alternative to renewing is a replacement AST for a fixed term or doing nothing and letting the SPT be created. A replacement tenancy gives the tenant power to mess you around, they can not sign it and if they do sign it you have lost flexibility for a year or 6 months and you can imagine this tenant is going to turn into the tenant from hell.

If you had protected the deposit in the first place I would say it was time to take off the gloves but it is still important to keep things amicable and be seen to be doing so. If the tenant goes to a claim company they will rack up your charged by refusing to negotiate and adding their legal fees. I can help with this but better to avoid it by coming to a settlement agreement directly with the tenant.

Once you have protected the deposit you need to serve the PI, difficult tenants can attempt to frustrate this by not answering the door and you must never gain entry because that can be considered as harassment. All you do is video the PI and you putting it through the letterbox and taping another copy to the front door. You would also email one and send one by normal post and another by recorded delivery (from different places).

The way I would approach this is to call the tenant, tell them that you are confused because it appears they have changed their mind about what they previously stated and you would like to meet up to discuss the way forward. Before you enter the property put your phones on silent and set voice recorder on and leave phones in your pocket. This is just to protect you in the event of any false accusation of harassment and to give you a record you can type up.

At that meeting (if they agree to it) you start by asking what is their preferred tenancy option, do they want to leave the area, do they want request housing by local authority, do they want an open ended tenancy agreement or a fixed term. Try to keep it to open questions, so they say what they want.

Say to them that you are sorry that you failed to protect the deposit, that it you and your wife each thought the other had done it and you are willing to reach a settlement with them.

You tell them that meanwhile you have protected the deposit and here is the prescribed information that tells them the details of the deposit (they will get an email from DPS anyway so they will know but it does not count as PI). Ask them to sign a copy of the PI, if they don't just take a photo of the PI in situ in the property and/or do the video of you posting a copy through the door and sticking one to the door.

This is all going to come down to negotiation so you need to know what the other side wants and what you can do for them.

They can't claim homelessness if they intentionally leave a property, that is why they asked for the S21.

They can't make a claim in another area unless they have/had a "local connection" to that area. They may be able to register homeless locally but tell the housing dept they are prepared to consider moving up North to another town if the Council can negotiate that with another Council.

Once they are in a permanent property (which may take up to a year in temporary accommodation but probably for with kids with health issues) they can do a swap with the Housing Association.

Knowing what they want is the only way you can put a value on what you can do for them. There is no blanket advice because some Councils will fight tooth and nail to prevent the person becoming homeless. They will contact you, ask you if you can keep them longer, ask you if the tenant was antisocial, damaged the property, was in arrears or anything than enables them to deny the tenant their homelessness obligation.

To be honest most Councils have to consider the children so if they know kids are involved they usually do not mess people around, which is why at first I thought the Council just wanted enough evidence to know that they had an obligation (because you were selling). The refusal to allow viewings made me think they were messing you around to delay things. I suppose it is possible the place is a mess or there is damage and they wanted time to cover that up.

I would call the housing department and ask them what the situation is, explain that things had been amicable thus far but you are selling the property and need to know whether they will be taking on the tenant as homeless and if so from when because their tenancy expires in 5 days.

Regardless of the expiry the Council knows they can delay by insisting you issue S21, so you have to factor that in as a cost of doing business. You just need to make the call to gather some intelligence, without giving any away.

If you have it in writing that the tenant offered to pay for it then you have something to negotiate with the tenant about when it comes to agreeing how much you will pay them in lieu of sanction and it can be used for a counter claim should things get ugly.

So if you have to bring eviction proceedings it is Section 8 which require grounds and ideally mandatory grounds, these are covered here:

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

OR it is Section 21 which is a no fault eviction that requires 2 months notice BUT has prerequisites.

https://www.propertyinvestmentproject.co.uk/blog/section-21-notice-of-possession-order-form/

Now as you failed to issue the deposit I have to question whether you met your other obligations that can kill an S21 notice, apart from the deposit and Deposit PI these include

Energy Performance Certificate (prior to occupation perhaps on rightmove)

Gas Safety Certificate - this is critical as is the annual check, do this now if not done already.

How to Rent Booklet - provide this with the PI if you did not provide it already

IMPORTANT: If you allow the tenancy to go SPT you MUST serve the latest "How to Rent" (if newer than previously served) before you issue an S21. As a new version came out in January 2018 I expect you will need to do this, this can be sent via email but belt and braces so a copy by post and a signed copy as evidence of service.

With regard to the payment for failing to protect, see the page here

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

I would be aiming at

* £300 payment on signing of settlement agreement
* No obligation for tenant to pay for S21 as they previously agreed to do
* Positive reference
* No Damages counterclaim
* Cooperation with Council regarding housing

I would point out that you have mitigation so would probably be looking at a 1x rent sanction, this is offset against S21 cost but also the loss of 1/3rd to Solicitors if used as well as cost of Court fee and legal costs incurred by the tenant which they may be held liable for if the Court feels that your Settlement was reasonable and they are wasting the Courts time. The Court must grant a minimum of 1x but they can punish landlord or tenant on costs.

So now get on and protect that deposit, do it NOW!

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David 16th March, 2018 @ 14:14

@Benji

I stick to my advice as to when the six years starts because there are circumstances and case law.

I myself had had claims that go back beyond 6 years, additional tenancies were issued and also unprotected, during this time the tenant was not aware of the Landlord obligation but the Landlord was sanctioned for each tenancy regardless of the typical 6 year limit.

This is also reflected in other law for financial claims.

Note I try to give advice that protects the widest group of people in all circumstances, the law can have lots of loopholes, so such a statement stops people assuming they are safe or getting bad advice.

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@Bob 16th March, 2018 @ 15:18

@David & @Benji, thank you both for your advice. We do have a conveyancing solicitor lined up and will also take advice from them. I will keep you abreast of developments as they happen. Kind regards, Bob.

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David 16th March, 2018 @ 15:27

@Bob

I think you have to move forward on the assumption that the tenant may remain in place for a considerable time and thus there will be no conveyancing.

You may find Solicitors without experience in Housing Act issues ill prepared for how you can be messed around.

For now, protect the deposit and arrange that meeting, considering you have 5 days and they may be working it means getting things done THIS WEEKEND.

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@Bob 16th March, 2018 @ 16:06

@David, many thanks. Point taken. Will do.

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Salda 20th March, 2018 @ 06:31

Hi David.

On below link you mention about "an example Settlement Agreement"

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

Have you managed to do it?:-))

Thanks for your efforts and time. Much appreciated!

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David 20th March, 2018 @ 08:52

@Salda

I originally was going to provide a template settlement agreement to the site owner, I assigned it as a task to 3 people in my team.

It then became clear that this was going to be problematic.

2 came back with very comprehensive agreements, that would scare a tenant shitless. 1 came back with a basic agreement that a tenant would sign but may leave the site owner liable for anything missing (regardless of waiver).

Then we had situations where a claim company was involved and a plethora of other variables.

So I felt it was better to draw these up myself when people have shared with me their situation via the forum.

That does not stop anyone drawing up their own agreement, what matters is that it is titled settlement agreement, is dated, specifies the parties to the agreement, that it refers to any sanctions arising from renting the property (which must be named) under legislation Housing and other acts of Parliament. It should be clear that it encompasses all tenancies for the said property.

It should specify what is being given by each party as settlement and it should be witnessed by someone you can rely upon.

It should specify that in the event of any further claim by either party that the person bringing the claim will be responsible for both sides legal costs and any consequential costs or sanctions.

If you trawl the comments of this thread there are examples given some time ago.

There is also some benefit from you both agreeing this and just writing what you agree, the key is to show intent.

I should point out that no agreement can override common UK law so it will not stop someone bringing a claim if they had cause under the Act, it is just that Judges decide things not Court staff who process claim paperwork.

However, the Court would either dismiss the claim or at the very least take into account the amounts that had been settled. There is enough case law anyway to show it would represent bad faith.

It it worth remembering that if there is more than one tenant all must agree or authorise the other to bring a claim, so by getting just one to agree not to bring or authorise a claim you snooker the others.

Hope this helps, but feel free to contact me via the forum (I have posted enough times here and on the page you refer to how to join it and PM me.

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Salda 21st March, 2018 @ 05:03

Many thanks David for your time

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Jason 8th April, 2018 @ 13:06

Need some advice as we did not protect our tenant's deposit.

We actually sold our property to our tenant, the heritable property part has all been legally transferred. However, there was a private agreement between our tenant and ourselves for our tenant to pay an additional sum for all of the furniture less some personal items that my wife and I wanted to keep. The total amount due to us less our tenant's full deposit less the costs of shipping the personal items that were not included in the sale has never been paid by our tenant as well as nearly 1 months rent (our tenant last paid rent on 1 Feb with a view that the sale would be concluded on 28 February) The sale concluded on 23 March and since 24 March we have had zero communication from our tenant. I spoke to a debt recovery lawyer and he mentioned the issue about the Tenancy Deposit scheme, and that even though our former tenant still owes us a considerable sum as well as our property) they could actually sue for damages even though in effect they have received their full deposit back.

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David 8th April, 2018 @ 14:23

@Jason

Your situation is that for EACH tenancy agreement you are POTENTIALLY liable for Between 1X TO 3X the deposit.

However, note the words in capitals, some Judges are awarding 1x the deposit because they feel there was mitigation. Some are only awarding the sanction for one breach even though there is clear case law and they risk being overturned at appeal.

If while you were the Landlord you had an AST and your tenant did not leave when it expired a Statutory Periodic Tenancy would have been created and potentially incur another 1x to 3x the deposit. Also if you created new tenancy agreements each year (as opposed to extending them) then those too would be liable for sanctions.

The law changes slightly for tenancies after 2015, in that if you protect the first tenancy you are deemed to have protected any SPT created.

In your position you can have this hanging over you for 6 years, your solicitor was right to point out that in the event of a dispute over money that may trigger a claim if the tenant becomes aware. It does not matter if it was paid back or if the tenant subsequently bought the property.

At the same time, if the tenant does come after you then you would also have opportunity for a counter claim. It will not remove your obligation but a Judge may take the bad faith into account when deciding on how much to award.

So you have to factor in whether you write off this amount you are owed but use it in a counter claim if the former tenant comes after you for the failure to protect the deposit.

The other option is to grab the bull by the horns, engage the former tenant with regard to this debt and suggest some form of mediation with a view to reaching a settlement agreement, then in that agreement you specify that it settles any future claim of landlord obligations under the housing act, ideally you would specify S212-5a but that would immediately draw their attention to your failure.

I guess it depends on how much they owe you, how solid the private agreement is, whether it is in writing etc. You really should have attached it all to the sale so that they paid it via the solicitor who handled the sale.

On the basis that they will get a minimum of 1x the deposit and they owe you 1x rent, the value of the items sold needs to exceed 2x the deposit assuming you bring the case yourself in the small claims Court with no legal fees.

The other risk you need to be aware of is that if they use a claims company you are at risk of their legal fees, the tenant will lose a third of the sanctions but the claims companies very rarely negotiate on fees. They know that if they keep writing to you they earn more fees, that is their game. I can help you draft a letter for an early settlement if a claims co becomes involved which may prevent them adding more fees, but you really want to avoid it getting that far.

The page below explains options for negotiating a settlement with a tenant (ideally before a claims co becomes involved).

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

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Chuddy 15th April, 2018 @ 17:02

Hi .

I have posted on this site on few occassions.
My Nightmare began In July 2017. We viewed a property to rent with the person who said he was the owner.
The Property was in Desperate need of Repair and Carpets needed Professional Cleaning or Removal.
The 'Owner' blamed all deterioration at the property on the Previous TENNANTS. He told us what he was looking for for Rent he told us £2,500 this Includes £200 per month for Garden Maintainance. I offered less stating that the State of the Property did not warrant what he was asking, he told us that if we wanted the house all Repairs would be completed ,all Carpets would be either removed and replaced with wood flooring. Carpet In the Utility room which has been damaged due to water leaks etc would be replaced with tiling within a 2 week period.
So we agreed we paid £3,500 Deposit and the first months rent of £2,500.
After numerous phone calls and texts none of the Repairs have been done , carpets etc have been left along with numerous other Issues.
The Deposit has not been placed Into a Deposit Protection Scheme, I questioned the ' Owner ' a Specialist Residential Agent.
He Stated he did not have to put it with a Goverment Backed Scheme he had his own Scheme , this was In October 2017.
Due to loosing my Business and being if Bad Health I Informed the 'Owner' at the Beginning of Jan 2018 that I wanted my Deposit returned and would vacate the Property as it was not worth any where near the amount of money we were paying. The Owner said ' Forget It you are getting no Deposit Back'.So I told him that he would have to take me to Court as I was not Prepared to pay anymore Rent for the Property.
It has now transpired he is not the Owner at all. He has been removing Post from my Post Box as he tried to take me to Court at the Beginning of March for Possession of the Property, which I was unaware of due to post going missing. The Court Struck out the Claim , due to him not being the Owner.
He has now Issued another Claim In the Name of the Owner but with his own home address.
Over the past few weeks he has come into the Property on several occassions he has gone through personal belongings, and on Thursday of last week he turned up again and Physically Assaulted my Son , he had to attend hospital and the police have been Involved.
He has not Protected Deposit.I have No EPC or Gas Certificate and have not been given the guide to renting.
I am of the opinion he Is conning the Owner of the Property wJo is a older Gentleman, and that the Owner is not aware of the State of his property and how he is letting it deteriorate
We are due on court on the 20/04/18.

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David 16th April, 2018 @ 00:50

@Chuddy

Yes I remember your posts, I also remember my advice and you contacting me via forum to say that you did Land Registry Search so you have the name of the Landlord but I am not clear if you have their address.

I advised you to formerly request the address of the Landlord and I explained to you that you that you are entitled to withhold rent until it is provided but must then pay it.

Under S48 of the 1987 Landlord & Tenant Act you are entitled to withhold your rent until the address is formerly provided, you needed to request it in writing and they need to reply.

It is actually a Criminal Offence not to provide you with the address under S1 of the 1985 Landlord & Tenant Act.

The Council is the one who would take the matter to Court.

I also advised you that you have a Counter claim worth £10,500.

and most importantly I told you to invest £3 in changing the lock.

I fired off a load of questions to you via the forum which I cannot trace a reply to.

Now you come at me 4 days before Court, it is past the date you can file evidence so you will have to rely on telling the Judge your position.

Because you did not tell me I do not know if you followed my advice.

I suggest that you contact me via the forum.

It does not matter that the Landlord is an elderly man, he is the one who let this person do this and he is responsible, you have to claim against him.

You will be asking the Judge to adjourn the hearing, order that this person provides the Court with full details of the Landlord and orders them to attend the new hearing.

You will make a request to the Court that you be allowed to file evidence for the adjourned hearing as the "agent" has been stealing your post and entering your property as well as harassing you and assaulting your son, you will need a crime number and something from the Police.

Regardless of whether he is Landlord you can have him prosecuted under Protection from Harassment Act 1997,

https://www.legislation.gov.uk/ukpga/1997/40/contents

This is far reaching with many breaches based on what you have said and the assault on your son will allow you to double down.

You did not say whether he is using S8 or S21.

The EPC and How to Rent Booklet, Gas Safety and Deposit Protection are automatic rejection for S21 so I suspect that he is using S8.

So initially, if you made the formal request I suggested and he has not provided the Landlord address then you have your defence for not paying the rent. If he did respond and gave his address, then that becomes the address for serving legal papers.

In Court you can tell the Judge that you have been trying to find the real Landlord, referring to how he brought the previous case in an attempt to deceive the Court. You can explain that he has been stealing your post and harassing you so you have been living in fear and would be grateful if the Court would order him to furnish the Court with the full name and address of the Landlord so you may deal with them moving forward.

Note that the fines in Civil Remedy for the Harassment are much higher than you will expect in

For example I have seen a Landlord who was also Agent bring a bunch of mates around and threaten a tenant then evict him, it cost them in excess of £40,000 plus all the deposit protection etc.

Due to the Gravity of this case I strongly suggest you seek legal representation if you have not already. I can recommend a firm but due to the timing they will need to seek an adjournment. If your financial position is as bad as you say they may do a conditional fee arrangement, especially as the potential payout is so large.

You could attend yourself saying that you have only been recently made aware of the new case and wish to have time to seek professional legal advice.

If this person does not have an agency business that has a business premises, a website or a formal limited company or trading name, you could say to the Court that you felt they were not even an agent or formerly instructed by the Landlord Owner of the property.

You did not say how much in arrears you are? Assuming you did not pay since January you exceed the 2 month limit for mandatory under S8 Ground 8, you could delay the case by paying enough rent to bring it just under 2 months. I would pay that into Court on the day if you have it.

Otherwise you bring your deposit protection claim against the actual Landlord and use the sanction you win, considering the violence it is likely to be a 3x case.

I will send you a copy of this message via the forum.

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Chuddy 18th April, 2018 @ 18:58

Hi.
Further to my post.
I have Contacted the Agent on several occassions asking for the Address of the Landlord.

He keeps sending me his own address.

Furthermore I have never signed any Tennsncy agreement.

You said you would send me details of a legal repeesentative.
I have contacted the Court asking for a adjournment.
I cannot move out of the Property until I receive my Deposit back.

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Chuddy 20th April, 2018 @ 20:18

Hi To everone who takes any notice of this site.

PLEASE BEWARE.

We have been Involved with a Rogue Landlord for the past 9 Months During this time we have been put through he Hell.

NO SIGNED TENNANCY AGREEMENT.
NO DEPOSIT PROTECTED 3,500.
NON DISCLOSURE OF OWNER / LANDLORDS ADDRESS.
DRASTIC REPAIRS NEVER DONE.
NO EPC
NO GAS CERTIFICATE.
NO GUIDE TO RENTING.
ASSAULT
HARRASMENT
THREATS.

AND THIS LANDLORD TOOK IS TO COURT TODAY AND WON THE CASE WITH IMMEDIATE EFFECT.

I am absolutely Disgusted.
Landlords can do what they want and the Tennant has no protection whatsoever.

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David 20th April, 2018 @ 20:51

@Chuddy

I feel really sorry for you but to be honest it is your own fault, you failed to prepare for your case

You can appeal and bring a claim against them.

I wrote to you via the forum the other day and back in January.

I told you above you could have had a huge payout and could have got things to work for you.

If you had provided me with the information when I requested it I would have helped you get the case dismissed and issue a counterclaim for nearly £11k on the deposit alone and potentially £40k for the harassment.

People offer you help but they have a life, other clients and it is not fair to come back on here and whinge 4 days from Court date when you did not even respond to the very first email I sent you in January. You left it too late to file evidence so you disrespected the Court and it punished you. Now you can appeal but you need it to be looked at professionally.

I am still prepared to look at your case but you will need to be responsive.

In life you can't help people who do not help themselves.

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Chuddy 20th April, 2018 @ 21:29

Hi.

I did respond as you said to knew legal people who could help. I did not get a response.

Can you tell me how long it takes for Baillifs to get a Warrant for eviction. On a Immediate Procession order ??

I have filled In the form N244 to set aside the Judgement as explained by the Court.
Not for the possession order by the Monetary Side of the Case and what we have had to put up with

Thank you

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David 21st April, 2018 @ 09:05

@Chuddy

I sent you a message via forum in January, you did not respond, the next I heard from you was the post above 4 days before Court date when it was too late to file.

I have helped loads of visitors from this site, Landlords and Tenants alike. I do this in between my paid clients. Currently I am helping 4 people with active cases. I cannot wipe your arse for you, if you want my help I expect you to do your bit and promptly, my time is limited so I expect you to respect it.

You will not have much chance of setting judgement aside unless you can show a legitimate reason for not presenting evidence in the first place. The reason I asked the questions in January was so I can assess your case and provide the best strategy, it is a minefield for both Landlords and Tenants.

Courts work within a framework call Civil Procedure Rules, anything you want a Court to do has to have a CPR rule, many of these compel a Court to take certain actions.

You will have been served papers which told you the things you needed to do. The first of those was an acknowledgement of service, the way you fill this in can help or hinder you.

You have to file your defence against what the Landlord is claiming, these must apply to the section of law that he is using, not another one. You can at that time bring a counterclaim, a dispute, a legitimate reason for the arrears. If you had responded promptly in January I would have done all this for you.

If the action was brought as a Section 8 the EPC et al defences would not work, they stop Section 21.

I did advise you the other day that you could delay action by bringing the arrears down to less than 2 months and asking the Court for time to reduce arrears and permission to bring a counter claim (as you were late).

The Court will have given you between 14 and 42 days to leave, after that date if you do not leave the Landlord has to get Court bailiffs, these take up to six weeks depending on the lead time at your local Court (call them to ask). If the Landlord tries to escalate to High Court Enforcement I can help you with that as long as you let me know promptly.

Now the power you have is that your deposit was huge, the the Landlord will face nearly £11k regardless and you can bring your claim anytime. I can help you with that, but for now you can use it as a negotiation tool to delay eviction.

You also have the claim for harassment and assault which are huge. So huge in fact that I would not suggest you do this on a conditional fee basis if you can find the money.

I can't discuss too much here because your Landlord may read it, so I suggest you contact me via the forum and I will start over with you to determine the best way forward from where you stand now.

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The Landlord 21st April, 2018 @ 12:03

@Chuddy,
Unfortunately, you didn't reply to David; you keep replying to the email notifications (which says, "IMPORTANT: Remember, this is just a notification. Please do not reply to this email."), and not actually directly to David by either the forum private messaging system or directly on this blog post.

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David 21st April, 2018 @ 18:08

Thanks @Landlord

That explains it, @Chuddy when you get a message from the forum click the link in the email, then when logged into the forum click Reply to message me.

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Bob 22nd April, 2018 @ 21:57

Hi David,
Hope all well? Just to change the mood a little, and whilst I wait to hear the outcome after the notice period having taken your advice and served the S21, I hope to see if there was any advice from you or any of your members in relation to the following. I know it is a little off topic but there seems to be some very clued up individuals on this forum.

Didn't know whether to start a new thread, but here goes:

Below is an email I sent to my local borough council after having visited my mother's house. I hope the email is self-explanatory:

Hello, on the 17-MAR-18 I visited my mothers house at XXX, and was stunned to see all the trees from the back of her garden had disappeared. On checking further, the Neighbour behind has had a large number of trees in their garden felled. The issue is that the trees that bordered the back of their garden were on my Mothers property.
I went around to the Neighbour (XXX) and asked what their reasons were and why they had not seeked my mother?s permission to fell the trees that were located on her property.
The neighbour advised that they had approached the council as the trees (which I believe were holly trees) were causing issues for their children to be able to play freely in the garden. It was in fact council workmen who had come, removed fence panels and then felled trees.
With regards to the trees, whilst we can appreciate that they would have caused an issue for those behind, we (this also includes the Neighbour at XXX) were never consulted about the councils decision to remove them. The trees for many years have provided an excellent safety and security deterrent to anyone trying to approach my mothers house from the rear. This is now wide open and very dissatisfactory.
This also leaves open the land at the end of XXX (behind my mothers) that belongs to my mother at XXX that needs to be brought back into my mothers garden. Visiting the site will make this all clear.
Originally when the property at xxx was purchased by my parents, the garden extended to a wooden fence at the back. Inside the perimeter of this fence was a line of holly trees, and after several years of living there, my parents erected a second fence in front of these holly trees to make the garden more pleasing to the eye. The neighbours did the same over the years, especially XXXX. Neighbours at XXXX had built an out house a few years ago that they took all the way back to the original boundary.
Now that the original boundary fence is no longer there, and the trees removed, this gives the impression that XXX has a larger garden, and my mothers garden at XXXX is now technically smaller.
I would be grateful for some response from the council as to a) why my mother was not contacted first to seek her permission, or at the very least her involvement in any council based decision making process and b) what the council will be doing about re-installing a new boundary fence at the rear of 27 Marshall Close, allowing my mother to ensure that her land remains with her property and is not open to further development on by neighbours in XXX.

The below now is the councils response received this Friday, having taken the maximum number of days in which to respond:

Dear XXX,

Thank you for your email.

Following various complaints from the residents and neighbours in relation to overgrown trees at XXX, a job was raised for our contractor to attend and fell the trees that were causing a potential health and safety risk.

Having attended to inspect the garden yesterday, it does appear that one of the trees that was felled was along the boundary line .

Though, I can confirm that no fence panels were removed as part of these works. In addition, your mother’s fence is positioned before the boundary line which resulted in the contractors being unaware of any boundary issues.

I apologise for this oversight on behalf of our contractors.

However, the tree along this boundary was indeed causing a potential health and safety risk to our resident’s and according to the tree surgeon, it did require felling.

The council has absorbed the cost of this, which may have otherwise have had a financial impact on your mother.

Moreover, there are a couple of trees on the left of the boundary line which appear to be on your mother’s property and interfere with the boundary line. This will need to be dealt with before any fence can be installed along the boundary line.

The residents have been advised of the boundary line, however the council will not be installing a fence in this financial year. The council has already spent a lot of money improve the state of the garden at 27 Marshall Close.

Your mother is welcome to re-position her fence back to the original boundary line if she wishes to do so.

Please feel free to contact me if you wish to discuss this matter further.

Kind Regards,

XXXX

Housing Officer

Again, I hope their reply is self-explanatory, as in they are not accepting any responsibility for the removal of the rear most fence ( although we can not be sure that there was one before the trees were removed), and are not prepared to reinstate a new boundary line fence.

My questions here, and what I am looking for advice on is:

* Can a council come in and remove tree's on private property without first consulting with the owner of the land? I have photo's clearly showing that there were a number of trees removed from WITHIN my mother's boundary line. Also, my mother and her side neighbour would have loved to have been given the choice as to what was to happen to those tree's in the rear. They have provided an excellent security deterrent for over 30 years of us having lived there.
* As I have now discovered the property behind my mothers is in fact a council property, are they not responsible for the upkeep of the boundary line and maintain/repair/replace a broken/damaged/removed fence as owners/landlords?
* As the property behind now has a bigger garden and my mothers garden is still the same size, although in fact the second fence should now be dismantled and moved back several feet before being rebuilt on the boundary line, what rights does the council have over this land if we do not do this in a certain time frame.
* My mother is registered blind with the borough council, and has been a resident of the borough since 1981. What recourse does she have with regards to claiming for compensation, and on what grounds? And are we able to push the council into reinstating a boundary line fence, which is all we really want them to do?

* I originally submitted the above as a COMPLAINT to the borough, and according to their website they have a strict criteria to follow in terms of response times etc. BUT the email reply makes no reference to my email as a complaint, so do I take it as them downgrading my contact with them as just an email? Or can I ask for this to be taken more seriously?

* Do I need to push this matter further within the council, potentially to my mother's ward councillor?

OR

* do we thank the council for taking the cost of the tree felling, and arrange for a handyman to come over and move the fence panels back to the original boundary line and call it a day?

Any help and advice will be greatly appreciated. Like the most of us, I too am busy with work and family, and it really is a case of gauging what could be gained by pushing the matter further or not. I'm just a little aggrieved by the fact that they came onto my mothers property, removed tree's and panels and didn't even care to think that she would need to know.

Again, thank you.

Also, will keep the forum updated as to what happens after the 2 months notice period on the S21 recently served.

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Chuddy 23rd April, 2018 @ 07:20

Hi David.

I have now Traced the Landlord.

You said you could put a Draft letter together for me with regards to Deposit not being Protected and other relevant Issues.

Can you please do that for me.

Thank you

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David 23rd April, 2018 @ 10:36

Hi Chuddy

Due to the confidential nature of this I have responded via the forum.

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David 23rd April, 2018 @ 11:02

@Bob

This side of the site is a blog, there is a Landlord forum link above where you will get other Landlords pile in.

First of all the Council is unlikely to incriminate themselves, but to be honest they have powers to act from various legislation, the easiest is GPC - General Power of Competence brought in by the Localism Act 2011.

I think they might argue that they send your mother correspondence and suggest that she missed it because she is registered blind.

These days most Councils have sold their Council properties to a Housing Association (some are even formed from the transfer). So you might want to establish who actually owns the land behind and who contracted for the work to be done.

Councils do wish to avoid protracted legal action, so you may be able to get them to replace the boundary fence. The deeds will show exactly where it is, you can get a copy of your own deed and that of the property behind.

I would not hold out much hope of compensation, I would contact the your Local Counciller or complain directly to the Chief Exec.

You might want to look up the local crime stats in her specific area which are published and then suggest to the Council that their works have left your mother more vulnerable so ask them to make good the damage they have done. Maybe replace with some fast growing eucalyptus (be warned some consider these a hazard). They will always prefer the cheapest option!

Wait and see how they respond to your letter.

Your mother is entitled to put up a fence at the borders subject to local bylaws and covenants in the original deed.

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Looper 25th April, 2018 @ 18:37

Hello,

My husband and I have a huge problem with a property we rent, I hope someone here can help us.

We´ve rented a property since 2015, initially it was for 11 months, we had 2 extensions to the original contract and now we are in the 3rd term which ends in 2019. We always dealt with one man who is listed on the rental contract as landlord etc, we never met anyone else other than the agent who initially dealt with the tenancy (the 2 extensions were done direct with landlord and the agent was not ever used after the initial tenancy agreement).

Recently, our landlords wife wrote to us and said she was divorcing the landlord and the house is hers, she went on to say that "she is the rightful owner and landlord" - She insisted that we sign a new contract with her and ignore the existing agreements with her husband. We replied saying that we couldnt simply stop a contract with her husband, we confirmed we were totally impartial and that if we were to change over the contract she would need to get written confirmation from her husband. She then instructed a solicitor to contact us and say the same, he said she owned the property and that we would need to sign a contract with her to remain in the house, otherwise face eviction. We spoke with the husband, our landlord, and he said his wife was totally out of order and that her claims to solely owning the house were completely un-true. Our landlord went on to say that his solicitor had sent her a letter to tell her to stop. He apologised various times for the discomfort and confirmed his wife would stop harassing us.

We thought that would be the end of it but next the wife´s solicitor wrote to us and issued us a section 21.

We spoke with "Shelter" and they reiterated some things we already knew from internet research but they were rather stumped by the wife´s (and her solicitors) behaviour, and told us they couldn´t give more advice than they had, the reality is they didn´t actually give us any advice on how to deal with this, initially they said it was impossible for the wife to evict us as she is not our landlord, and that even if she was the landlord, she would need rent arrears or another good reason to evict us. When, a few days later, the Section21 came, we contacted Shelter again, they were very surprised and said they couldnt advise further, they did say that it was very likely we would be able to contest the s21.

What should our actual course of action be in this case? If any further information is required I am happy to elaborate, in private if necessary. I really appreciate this resource, i´ve been reading through the posts and there is a lot of clarification on many points, but I feel our situation is different from everyone i´ve ever read before.... It really is distressing that we are involved in another persons divorce, should the parties involved not leave us tenants in peace, until the court make their divorce awards official?

Thank you in advance for any advice.

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David 25th April, 2018 @ 20:07

@Looper

I am sorry for the situation you find yourself in and will try to help you.

First thing to check is who is the legal owner of the property

You can do that for £3 by ordering a title deed from the Land registry, it is all done online from this link

https://eservices.landregistry.gov.uk/eservices/FindAProperty/view/QuickEnquiryInit.do

Next you need to understand that you have a contract, to be honest, it does not matter if she is the owner, the fact that it was her husband who let you the property validates the contract until a Court of Law terminates it. That has not happened and an S21 is not the legal procedure to terminate a contract, it is an accelerated eviction process and she could only issue such a notice if she was in fact a party to the contract she is trying to break.

She can't have it both ways.

It will also be affected by whether they are Joint Tenants or Tenants in Common, by their marriage in certain circumstances. If she had bought out the property from her husband she would become your landlord, but that does not seem to be the case based on the response from the Husband. If it was her property to begin with it does not matter because until terms of divorce are settled by Court he has at least a claim if not joint ownership, but as I said these things need to be determined by a Judge and from what you have said thus far, this is not the case.

We can have some fun with the S21, I will help you fill out the response to the Court and draft a letter to the Solicitors rejecting the S21 but there is no hurry. If you want to stay in there as long as possible we can so things serially rather than in parallel.

So your tenancy is secure until 2019 unless there is a break clause, it would specify the conditions when the contract could be terminated, if there is no break clause then the contract lasts until 2019 unless you have breach terms specified in the contract that bring the contract to an end, even those require a Section 8 notice from the Landlord, not his wife.

Now do not be surprised if the wife puts pressure on the Landlord to end the contract, but again it will need to be legally correct.

If the Solicitor who issued the section 21 had any sense he would have done a registry search, he may have seen the property in both their names but that in itself does not give her rights to end a contract her husband entered into.

Anything she wants to happen needs to be determined by a Judge, she may want half the rent but that is a dispute between her and her husband. She may want to sell the property but there are strict rules about that and besides if it is in both their names it can't be sold without both of them agreeing, even then they can't evict you in those circumstances without grounds if they use Section 8 or during a fixed term contract without a break clause for S21.

For your info their Ground for a Section 8 (which they have not issued yet are here:

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

As for the S21, I have about 30 ways you can frustrate their attempts to evict you, but for now I think we need to move to the forum because of the privacy aspect.

So please register with the Landlord forum link at the top of the page or use this link

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

Once you have registered you will be sent an email to validate your registration, click that link and log into the forum, you may then send me a Private Message from the link below:

http://bit.ly/davidpip

When I reply your messages in the forum you will get a copy in your email but you MUST reply via the forum, if you reply via your email client I will NOT get the message.

So do not worry, I will give you some further advice in private message to help you secure yourself further.

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Looper 26th April, 2018 @ 08:35

@David

Thank you for your comprehensive reply!

You´ve already helped calm my fears with your positive attitude towards this problem we face. I´ve sent you a PM via the forum and will speak to you there more.

Best regards.

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SJG 30th April, 2018 @ 14:38

So I signed a tenancy agreement on 24th April 2017, and I have never received anything to say that my deposit is protected. I've checked with the 3 agencies who cannot see any record of my deposit. The landlady will not answer me when I ask who the deposit is registered with.

I have moved out of the property now. The property was a total mess when i moved in, and it was so bad that the landlady even offered me money to decorate, including new carpet (This wasn't a huge amount, it was more of a contribution to it) The hallway floor for example was a terrible state with mats stapled to the stairs and bits of laminate hanging off all over the place. I had this carpeted and I have before and after pics. I also have the email confirming that she had offered money towards the new carpet. She is now saying that she did not authorise it, and that laying that carpet is tantamount to vandalism.

When I left, I did have some outstanding bills as I'd had a difficult time financially after being made redundant, however these bills were all in my name and I had spoken to the bill companies to arrange payment and advise that I'd moved.

The deposit wasn't much, only £570, but she is now saying that the 'vandalism' cost her £450 to repair, plus other bits, and there is no deposit left to give me. She still won't confirm that its protected....

Can someone advise me on the best thing to do?. I don't have much experience with this sort of thing but I'm sure my deposit should be protected?

Thanks in advance

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David 30th April, 2018 @ 18:55

Hi SJG

I would be happy to help you draft a letter, if the facts are as you outlined them above with no surprises, then not only will you get your deposit back but between 1x and 3x the deposit and if you want we can ask for a positive reference too. The alternative is I help you take her to Court and she faces thousands in legal fees, trust me she will bite your hand off.

You needed to be a tenant in self contained property, not a lodger or holiday let, those are the only real exceptions.

If your former Landlady was organised she would have taken an inventory when you moved in and you should have too. I always advice both parties to take a video then upload it to YouTube as a hidden video. Then if there is any dispute you have a time stamped video ready as evidence of the state of the property.

In this case if you have an email it will suffice.

If you have checked the following three sites and put in the correct postcode, deposit amount and date then that will suffice as evidence.

http://bit.ly/chkdep1

http://bit.ly/chkdep2

http://bit.ly/chkdep3

In order to maintain your privacy I suggest you register with the Landlord forum link at the top of the page or use this link

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

Once you have registered you will be sent an email to validate your registration, click that link and log into the forum, you may then send me a Private Message from the link below:

http://bit.ly/davidpip

When I reply your messages in the forum you will get a copy in your email but you MUST reply via the forum, if you reply via your email client I will NOT get the message. Once you login it should be self explanatory.

I will than gather some details and draft you a letter.

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Chuddy 30th April, 2018 @ 19:19

Hi David.

I have tried to Contact you directly but there seems to be a problem.

I would like to know what steps I can take with regards to Deposit.

I will not go through all the details as I have done already on several occassions.
I checked with all Deposit Protection Shemes if my Deposit id £3,500 had been protected and it has not.

The Tennancy started on the 12/07/17, I have found out through the Court possesion order that the agent had placed the Deposit in a Deposit Protection Scheme.
I have had no Information on the Deposit whatsoever.
I contacted the DPS and the Deposit has been protected with them.
This has been done in a very underhand way. He had given a Ficticious Mobile Number and email address to the DPS. The Deposit was protected on the 08/03/18. Some 8;months later.
I have been told by the DPS that he has already started a Single Claim Reppayment for the Full Deposit to be paid back to him.
On explaining the Situation with regards to the Agent and Landlord she has stopped the single claim repayment based on all above Information.
can i still go after the Landlord for not protecting my Deposit .

561
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David 30th April, 2018 @ 19:31

@Chuddy

I have seen that many times, some Landlords just seem to have a problem with deposit protection.

Even if it is protected now it is too late, it has to be protected within 30 days and they have to serve you with the prescribed information.

I really need to deal with you via the forum for your own sake.

Others contact me with no problem, so check your spam folder, Flossy said that you were replying via email which sent your replies into a black hole, so click on the link from the landlord forum. I know you registered properly because I got and replied to your initial message in January.

You message will be from Landlord Forum, it will include a quote from the message but to reply you must click the link at the end of the message

This is an example (I changed the numbers to protect the innocent)

Reply to this Personal Message here: https://www.landlordforumproject.co.uk/index.php?action=pm;sa=send;f=inbox;pmsg=999;quote;u=99999

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The Landlord Avatar
The Landlord 1st May, 2018 @ 08:18

@Chuddy
I'm sorry, but you seem to be having an abnormally difficult time grasping the fact you have to reply via the private messages David is sending you on the landlord forum (https://www.landlordforumproject.co.uk/), which he's explained multiple times now. The problem is you don't seem to be listening :(

Once again, you haven't tried to contact him directly. All you did this time was go to the contact page of this website and submit an enquiry (which came directly to me). And then, after sending that enquiry, you once again replied to an email notification, which says "IMPORTANT: Remember, this is just a notification. Please do not reply to this email."

*slaps forehead*

563
Guest Avatar
SJG 2nd May, 2018 @ 07:10

@David

Hi David - I haven't seen my activation email yet - I've checked in my spam folder but couldnt see it so I've requested another activation

In the meantime, yes - I was the only tenant and my contract was a shorthold tenancy. I sent an email to her calling her bluff and this morning I received my deposit and a not very nice email along with it, although in the email she outright admitted that she hadn't protected the deposit.

Her initial email re: my deposit had been to try to make it sound like I owed her more than she owed me (which wasn't the case at all) and as much as I don't really like 'claim culture' etc I still feel very aggrieved. Is that the end of it now or is there anything else I can do, such as report her as a rogue landlady?

Thanks in advance :)

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David 2nd May, 2018 @ 08:24

@SJG

I am glad you got your deposit back.

Originally when this legislation was drafted returning the deposit was enough, I remember cases where a Landlord would be in Court, realise that they did not have a leg to stand on and pass me a note to ask for an adjournment. They then handed over an envelope and the Judge would rule in their favour.

However, that wasted the Courts time and it created legal fees for the tenant, so the law was changed.

So now you have up to six years to bring a claim, if it is an open and shut case, then your Landlord cannot defend it, all she can do is ask for mitigation if she is say a novice Landlord, perhaps had an agent who she relied upon because they provided a full service or said they did all legal paperwork on their website etc.

Despite the open and shut nature of this I advise clients to think of the Landlord, generally were they decent if not a little incompetent, were they downright dodgy or just a bit of an arsehole? Did they fail to do Gas tests, leave you in a mould infected dump?

I can imagine her initial hostility was probably because of the bills and now that she knows you have her bang to rights, she is gutted. I know that with redundancy you will be very tempted to think "fuck you, this is the law and I paid your mortgage for the duration of my tenancy, if you are going to do this then you should do it properly". You also need to balance that with the bloody nose theory, if she is made to pay a sanction, she will not only make damn sure that she pays in future but she will tell her friends who are also Landlords to make damn sure that they protect the deposit, serve PI, get and EPC and Gas Certificate and give tenants the "how to rent" document.

Whatever you decide to do there are civil procedure rules and I can help you through those, probably get you a negotiated settlement that leaves you both better off than worst case scenarios.

Give the forum another go, I fear you might have registered for this blog rather than the forum or there was some error.

use this link and try again

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

I know it is working because others have contacted me from it during the same period.

Maybe check your junk mail folder

Once you have registered you will be sent an email to validate your registration, click that link and log into the forum, you may then send me a Private Message from the link below:

http://bit.ly/davidpip

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Guest Avatar
Martin 2nd May, 2018 @ 11:30

@SJG

Definitely claim the compensation/penalty for failing to protect the deposit. She will have to pay at least 1x the amount of the deposit and rightfully so. You can totally do it on your own, I did it myself, it is pretty straightforward thing, you just need to do some research and get some free legal advice maybe. Just follow the pre-action protocol (check out what that means online) before you take her to the court -- if that is necessary.

566
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Looper 2nd May, 2018 @ 12:00

@SJG

Try changing your email address, the auto system failed to send me the verification email too, even though I requested it numerous times. I was using a hotmail.com address initially and the system just wouldn´t send a mail to it (I checked Junk, etc), so I changed to a gmail email address and got the verification within seconds.

Cheers.

567
Guest Avatar
David 2nd May, 2018 @ 13:55

@Martin

That is good advice but there are some loopholes which is why I do offer to help people, both Landlord and Tenant alike.

90% of the time I am able to avoid Court action being taken and get the parties to agree a decent settlement.

The only time I do not recommend a settlement is where the Landlord has been a rogue.

Examples include:

Landlord breaking into property and evicting tenant
Landlord changing locks
Landlord registering deposit using fake tenant details which was fraud.
Landlord harassing tenants
Fake Landlords (agents hiding the true Landlord)
Deliberate use of wrong agreements (Licence and Lodger)

I even had a case where the Landlord was in a national newspaper on a GBH charge, he threatened me and my family referring to the article. You do wonder just how dumb people can be. I had written to him simply opening up discussion with a view to negotiation. Of course it was easy for me to find his Solicitor and I respectfully suggested that they advise their client. He ending up paying the 3x sanction and returned the deposit, he also got his original bail revoked and ended up doing 6 months in prison.

For Landlords I have had claims where I have been able to reduce or eliminate costs.

CPR is a minefield and searching may find you something, such as the pre-action protocol, but it will not tell you all the processes and procedures that you or the other side could use if the case goes forward.

I also advise how to get the Judge on your side whether you are Landlord or Tenant.

Sometimes I do regret offering help, I have had both Landlord and Tenant lie to me which has led to advice being given based on those lies. This makes it harder to help them going forward as it completely undermines their case. If a Judge sees you have lied once they will assume everything is tainted.

I have also had cases that have gone on for over a year when the Deposit claim is part of a much bigger strategy of claims that can cost a Landlord tens of thousands of pounds. These have run to over 500 emails and thousands of pages of evidence.

When I look at these cases overall they are often started because of a bit of a bad feeling, it may be a Landlord charges the tenant for something small and petty. In the scheme of things these are either wear and tear or just not worth the aggravation. Of course there are still some landlords who seem to think that the tenant's deposit is their redecorating fund, which is why the legislation was created in the first place.

There are claim companies out there, but I strongly advise to avoid them like the plague. First they take a third of your sanction under a conditional fee arrangement, but also their process avoids settlement, you may get your two thirds eventually but they will get huge legal fees and you will never get a positive reference. In two cases who came to me after they started a claim it did backfire and they then had to pay the Landlord's costs of £6k and £8k.

Had they done things right in the first place they could have avoided that, remember some Landlords have deep pockets, you can't predict the way a case will go.

At the end of the day, I can only offer advice, it is up to the individual to take it and do the actions required.

Legal action should always be the last resort but sometimes you come across people who are vengeful and seek to punish the other party, regardless of the merits of the case.

There is a further page on negotiation here

https://www.propertyinvestmentproject.co.uk/blog/i-havent-protected-my-tenants-deposit/

568
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SJG 2nd May, 2018 @ 15:58

@David

Thanks David.

I wasn't issued with a section 8 or 21, I simply moved out because the area was horrible and I sorted a new job so I could afford something nicer.

I have a copy of the tenancy agreement and I'll get a copy of the title deed. Do you have access to DropBox, can I share documents via that?

She was very hands off as a landlady and to be honest I didn't have an awful lot of contact with her. I did have a Gas Safety Check done while I was a tenant, but she didn't complete any kind of inventory or give me an EPC when I moved in

The flat probably wasn't in an acceptable state to be let out anyway, the stairs and hallway flooring was seriously bodged with bad laminate, exposed nails etc etc. When I moved in she said she would contribute towards carpet and I have this confirmed via email as well - I was pretty desperate to move and as she was willing to contribute I didnt see an issue with putting up with it for while before getting it sorted.

As I said, I did have a few outstanding bills when I left but these are all in my name and are being dealt with personally by me. I made it clear that I had a few financial problems due to being made redundant, but my rent was all ok.

I'll send you over my email address via the personal message :)

569
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David 2nd May, 2018 @ 19:53

@SJG

You are posting on the blog not the forum

Best we discuss this by forum for sake of privacy and because she may be reading this page.

570
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Chuddy 13th May, 2018 @ 19:10

David.

I have sent numerous emails to you directly. But had not response.

Can you please let me know what forms I need to fill in to put a Ckaim against the rogue Landlord.

571
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David 13th May, 2018 @ 20:34

@Chuddy

I have sent you lots of messages but you do not follow through.

There are basic things I need of you, but you do not do them or reply, then when I chase, you give some excuse.

Then when I said I was closing your file you said it you were busy moving.

Last one was that your son was going to send me something.

It did not happen.

I will email to give you one more chance to get your act together, I can't help people who won't help themselves.

I really want to help you but you have to do your part.

You did nothing from January to May, then you posted too late to make a submission to Court.

Now you are entitled to up to £11k if you can sort yourself out, you have a means on contacting me privately, use it!

Better still, go back to the emails I already sent you with numbered things I need and get them to me.

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Joey12345 15th May, 2018 @ 13:04

@David

I am a tenant with a rather complicated dispute with my landlords. Would you be able to provide me with some advice? Are you legally qualified?

As my landlords may be viewing this, I would prefer to discuss this privately if possible, in the first instance at least?

I have registered (username: Joey12345). However, I haven't received a verification email as yet.

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Guest Avatar
Looper 15th May, 2018 @ 13:13

@Joey12345

See comment 567 above regarding the email verification. Might be worth trying.

574
Guest Avatar
Joey23456 15th May, 2018 @ 16:43

@Looper - Many thanks, that is precisely what happened (I had used a Hotmail account). Re-registered (now Joey23456) with a yahoo account and got the email straight away.

@David - just sent a couple of chunky emails to you directly to: http://bit.ly/davidpip

I would really appreciate your assistance.

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Guest Avatar
David 15th May, 2018 @ 19:03

@Joey23456

Got them.

576

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