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

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

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

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

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

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

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

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

I didn’t protect my tenant’s deposit! HELP!

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

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

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

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

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

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

If the Deposit Protection Legislation has not been followed, you’re screwed – meaning you can’t serve a valid Section 21, and your only option is, possibly, serving a Section 8 Notice where you must prove grounds for eviction (which you may not have).

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

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

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

Yes, it’s true.

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

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

I didn’t comply with the Tenant Deposit Legislation– what can I do?

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

As it stands, these are your options:

  • Recommended solution: Protect it now and serve the prescribed information hoping that if an issue arises and it goes to court the Judge will take the view “better late than never”
  • Pay the deposit back to the tenant and hope that he doesn’t find out that he can get compensation, although it might be difficult to explain *why* you’re giving it back.

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

  • If you’re trying to get rid of a rogue tenant and you have grounds for eviction (e.g. your tenant is in 2 months rent arrears), serve a Section 8 (as already covered, unlike with a Section 21, you don’t need to comply with the tenancy deposit legislation in order to serve a Section 8.
  • Do nothing, but sit tight and pray that your tenants don’t realise protecting the deposit and serving the Prescribed Information is a legal requirement and/or they don’t care enough to seek compensation because you’ve been an amazing landlord.

If your tenant hasn’t mentioned anything…

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

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

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

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

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

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

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

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

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

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

My letting agent did not protect the deposit…

Oh dear.

Your hired help has failed you. Common scenario.

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

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

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

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

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763 Comments- Join The Conversation...

Showing 713 - 763 comments (out of 763)
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Nicky 20th August, 2019 @ 13:34

Hi there

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

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David 20th August, 2019 @ 16:59

@Nicky

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

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

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

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

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Mary 22nd August, 2019 @ 18:29

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

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David 23rd August, 2019 @ 08:38

@Mary

Your novice status may help mitigate your situation legally.

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

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

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

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Sarah 25th August, 2019 @ 23:12

Dear All,

I am desperate for some advice please

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

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

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

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

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

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

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David 26th August, 2019 @ 18:30

@Sarah

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

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

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

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

I wish your daughter all the very best.

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Jeanett Brown 5th October, 2019 @ 07:56

I have enjoyed reading your blog. Useful information.

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nick 14th October, 2019 @ 23:27

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

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

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David 15th October, 2019 @ 11:00

@Nick

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

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

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

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

Reading your post it seems you have the following S8 Grounds

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

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

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

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

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

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

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

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

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

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

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

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

So I would start with the notice to inspect

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

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

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

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

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

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Naive Landlord 21st October, 2019 @ 06:13

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

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

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

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

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

Any help is appreciated

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David 21st October, 2019 @ 15:09

@Naive Landlord

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

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

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

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

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

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

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

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

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Jacqueline 3rd November, 2019 @ 12:14

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

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David 3rd November, 2019 @ 12:24

@Jaqueline

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

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

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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

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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.

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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!

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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.

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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

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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?

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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.

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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

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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.

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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

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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.

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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.

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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.

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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.

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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?

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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.

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Greg 12th April, 2020 @ 15:26

In the UK, Deposit £3000.
As I live in the same property as my tenants ( I’m in flat a, there in flat b but in the same building let’s say number 1) the letting agents have created a contractual tenancy agreement which says I as the landlord hold the tenants deposit is that correct?
If there a useful link I could be guided in.

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David 12th April, 2020 @ 16:30

@Greg

No it sounds like their flat is self contained and you do not share common things like kitchen and bathroom.

If you were resident is say a two bed flat and let out one room as a lodger then the deposit protection legislation would not apply.

If the agreement is an Assured Shorthold Tenancy or can be deemed as one by a Court (for all those dodgy agents that created so called licences) then the legislation applies.

Flat B sounds as if it has it's own front door and you do not live behind it so you need to protect the deposit AND serve the Prescribed Information within 30 days of you (or your agent) receiving the deposit (which may be earlier than the tenancy).

The deposit must not exceed 5 weeks rent so £2600 a month rent for 3k deposit.

All agreements are contractual so do not count on that exempting you.

They may be referring to a Contractual Periodic which were popular before the Deregulation Act as a way to avoid Superstrike case law, Dereg dealt with Superstrike as long as you comply.

Any of the the 3 deposit protection sites have a plethora of information, I like the DPS because it is free and they are generally 50/50 on disputes. You may think you are more secure in holding onto your money but with an insurance backed scheme in the event of dispute it can be requested immediately. Also insurance policies have exclusions and can cut protection if say an agent does not keep up payments or makes a clerical error.

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Joana 28th April, 2020 @ 08:12

Neglected to put the deposit received in a scheme. Tenant fell behind on their rent and are now seeking assistance from the local council. They have now asked for the details of the scheme in order to make the back payments. Is there anything I can do?

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Eric 28th April, 2020 @ 08:21

Joana,

This whole blog post answers your question, did you even bother to read it?

No wonder you "neglected" to secure it *rolls eyes*

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David 28th April, 2020 @ 11:20

@Joana

In any event, you mitigate your sanction by protecting the deposit at the earliest opportunity after you became aware of your mistake, there are only a very few tenancies from donkeys years ago where this does not apply.

Once you put it in the scheme you will be able to give them the details.

Understand that you are now liable for Court action for 6 to 12 years from the failure.

You do NOT want the Tenant to go to a claims company because they will just create legal fees for any interaction with you.

At the same time you do not want the Council poking their nose in because they may encourage a tenant to take the action so that the tenant gets the money which is means the Council can count is as income and grab 85% of it.

The Council have no powers to force a tenant to take legal action.

What you want is to have a settlement agreement with the tenant and I can help you with that, they are all done on a custom basis because it varies so much on the circumstances.

In these times we cannot ignore WHY the tenant is in arrears, has it been affected by the Pandemic we are now in, can they provide evidence of same, e.g. being fired, forced to apply to universal credit or were they a DSS tenant before?

If they were affected by Pandemic or if you were affected yourself, then you can ask your lender for a payment holiday, as long as it is authorised it will not affect your credit record, some add 3 months to mortgage others charge more interest.

Do not put too much personal information here on this open blog.

Please use the instructions in post 703 above to contact me via private message on the forum site, I can then help you.

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David 2nd May, 2020 @ 09:59

@Mini70

If no deposit was taken then there is nothing to protect.

I do not know if you are aware but the UK is in Lockdown and if it is at all possible you are to work from home.

At the same time there has been guidance not to move home unless the property being moved into is empty, I would imagine most prospective tenant would want it deep cleaned, but there is another issue, viewings.

Having prospective tenants coming and going, infecting the air as they go is not ideal. Viewings tend to be done for convenience of the agent, so booked up one after the other.

So the Agent is probably working from home, they may have gone bust or on furlough which means they are not allowed to even respond to emails or pick up the phone as it is considered work by HMRC. One would have hoped they would change voicemail but that might tell you something about how professional the agent is.

The email means nothing if the tenant has bank evidence of paying an amount, especially if the tenancy agreement refers to the same amount.

If you need any further help with feel free to use the details in comment 703 above to contact me via the forum.

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Liz 24th May, 2020 @ 18:29

Hi David,

Have rented our property last year, and was late in registering the deposit into a scheme by 2 months. There is no dispute that we failed to protect the deposit within the time scale due to a mitigating circumstances, but as soon as it was brought to our attention by our tenants we entered it into the scheme the same day, and have provided the tenants the prescribed information, deposit scheme certificate and addendum as soon as it was protected.
But after 4 months the tenants abandoned the property with no formal notice, no forwarding address, leaving outstanding council tax and utility bills, with still 2 months left in the contract. We have now received a letter from their solicitor claiming £1300 (£650 x2) for late deposit protection.
Do you think it’s best to make a counter offer, and if we had to go to court what would be our chances.

Your thoughts and comments are much appreciated.

Many thanks,
Liz

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David 24th May, 2020 @ 19:08

@Liz

As this has already got to a firm there is no point seeking a reasonable correspondence as they will drag things out to get fees for the letters they write.

I have an approach for this sort of case but it depends on the firm (I have dealt with most of the specialist players), hopefully we can get it stopped before it goes to Court. However, even if it goes to Court we can combine your claim against them as a counterclaim, in my experience a Judge faced with, case law, respectful Landlords who complied as soon as made aware vs Tenants than abandon a property without paying contracted rent, usually means they award the tenant the bare minimum, but award the Landlord all outstanding plus legal fees.

Please use the instructions in post 703 above to contact me via private message on the forum site, I can then help you.

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James 10th June, 2020 @ 10:58

Hi David and others,

Much appreciation for this very informative blog. If at all possible, I would like to receive some advice regarding two issues I have.

Recently have left a small flat of which I have been a tenant for three years which is managed by a nationwide letting agency, this was my first time renting a property.
I feel I am genuinely responsible tenant and have had no problems with rent payment etc. Multiple flat inspections have been more than satisfactory in addition to the end of tenancy inspection by the independent assessor provided by the letting agency. My landlord is disputing a large amount of the deposit for cleaning the property as well as painting and varnishing the small outdoor balcony which I feel is not appropriate as the condition of the property has not changed and this is confirmed by the property inspection reports. We have been back and forth several times via the letting agent and I have tried to negotiate, but the monies claimed by the landlord are still very high and I feel inappropriate, with the landlord essentially claiming these end of report inspections documenting the condition of the flat do not apply.

Additionally, whilst reviewing my deposit as considering going to the tenancy dispute service, I found out only a proportion of my 950 pound deposit (around 2/3) was held in the TDS. On my latest email to the landlord and agent regarding negotiation of deposit monies, I raised this, highlighting the required law etc and even suggesting around £120 taken off my deposit to end any dispute. This sum was not agreed and the point regarding my full deposit was ignored and not replied to.

My questions are really what should I do next? I am likely to raise a dispute with the TDS, as the negotiation isn't going anywhere, and am also frustrated and dismayed as the full deposit was not held properly and no explanation received. I am really not seeking compensation, I just want my deposit back even allowing a 'fair' deduction of 100 pounds or so. I feel I am being reasonable. Do I submit a court application? Is there a case even though a proportion of the deposit was held with the TDS? Should I go through a solictor?

Many many thanks

James

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David 10th June, 2020 @ 14:56

@James

It seems that you have one of these Landlords that thinks your deposit is their redecoration fund, this is one of the reasons the Deposit Protection Legislation was created to avoid.

You are in a very strong position, you have independent reports regarding the condition of the property.

Furthermore the Landlord would have to show evidence that the property was in an inferior state, SAVE WEAR AND TEAR.

All properties deteriorate and they would have to show that you exceeded this allowance for wear and tear.

My advice would be to first log into the TDS portal and check exactly WHEN was the deposit, albeit inferior amount, was protected. It should have been protected within 30 days of you giving them the money (not the beginning of the tenancy).

Next you need to check the paperwork you have includes the Prescribed Information, some landlords include a subset of this in their tenancy agreement, this is often not valid.

A failure to protect or serve the PI brings a penalty of between 1x and 3x the full deposit.

You say you were a tenant for three years, so I am wondering how many tenancy agreements there were, if you had 3 AST's then the penalty applies three times and is between 1x and 3x the deposit for EACH tenancy.

I understand why you do not want to go to Court but when you have a Landlord who is unreasonable sometimes they need a bloody nose.

From what you have said I see no reason to have any deduction whatsoever.

The next step for you regarding the return of the deposit is to use the TDS arbitration service although you might find the rules slightly onerous.

https://www.tenancydepositscheme.com/wp-content/uploads/2017/09/TDS-Rules-for-the-Independent-Resolution-of-Tenancy-Deposit-Disputes-1.pdf

Alternatively I can draft you a letter to seek a settlement with your Landlord, I will first verify all the of the evidence and and write the letter based on my findings. The letter will seek a settlement but very firmly inform the Landlord that you will be taking legal action if the deposit is not returned in full within 7 days.

If the matter goes to Court they will order the return of the deposit and make a decision based on the failures. They will also charge the Landlord for your costs if they find against him and it is pretty hard not to find against him when he has not protected the complete deposit.

Most of the time it is the element of the deposit that is used for any multiple but I am aware of one case where the Judge said the legislation talks about failure not amounts and charged the Landlord 2x the full deposit.

If you want to accept my offer to help you please use the form on post 703 above.

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Nice Guy Landlord 18th June, 2020 @ 20:12

Hello David
I love your zesty, salty writing, and how you're trying to stand up for the beleaguered landlord! I am the sort of landlord, who sends compensation, when it takes him three days to fix the shower. I am so nice / stupid, I sent a letter to APOLOGISE, when I registered the deposit a couple of days late. (Of course now I see the foolishness of that!) My tenant left recently, leaving about 5 K's worth of damage, and has just got a solicitor to send the threatening letter, this time asking for 10K. (I feel as if I've been mugged for my dinner money, by the school bully, and the headteacher!)
Questions...
1) You say elsewhere that you're considered to have made TWO infractions, if you've renewed the AST, and been slow to re-register both times. Is that right? But what happens if the tenant didn't sign the second time, but lost the AST, so went onto a rolling contract. Then, surely, you may have been slow to register a second time, but they would only expect ONE time the deposit, because you have only breached the terms of ONE contract. Is that right?
2) Us landlords are all wanting to know a bit more about precedence, of how likely the judge is to award three times / one times the deposit. I did register it, albeit late, but the tenant left a huge bag of apparently stolen scooter parts... Does that prejudice a court to think I am the more innocent party, or is this the sort of pleading that you have dismissed elsewhere as whining like a big girl? What seems to move a judge to go for a larger / smaller pay out?
3) You say that any change of the law would most likely make it worse, but surely this is a disgraceful, stupid law, and there's an obvious fix: if the landlords have stolen a deposit, they should return it to the tenant - fair enough. But if they have not registered the deposit, the fine should go to the crown. Why is that wrong? Where else, in law, is there a situation where you might be told to pay up 10K to a scooter thief, because you didn't fill in a form? It doesn't make sense. Is there something I'm not seeing?
4) Like any landlord in this situation, I am longing to have your help with my letter, and to have you coming back at the bully like a big brother in big boots, but maybe you're getting tired of doing that. Anyway, my attempts to reach you are being foiled, cos I've clicked on the landlord forum icon, I've registered, but have been waiting, forlornly, like a little snivelling beaten up little brother, waiting for my confirmation e-mail to come clicking in. Are you willing to help one last time, Oh masterfully salty one?

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David 19th June, 2020 @ 00:03

Hi NiceGuy

Just to be clear, Flossy is the site owner, it is he with the wit.

0. If they left damages and you have good evidence of that from two proper inventories then you have a counterclaim. Some tenants disappear but if they come after you via a claims company you now have an address to serve them, care of the firm.

1. This blog page has been going a long time, the law has changed as many times plus they is a heap of legislation. So what was valid then may not be valid now. At the time of writing to you as I am doing now, it is going to depend on whether you did not protect it at all or whether you protected it after the 30 days but well before the second tenancy arose. You cannot get out of things because someone did not sign something or has lost something. If the tenant remained after the term then a contract is created in law, it is called a Statutory Periodic Tenancy. If the deposit was not protected within 30 days of the second tenancy starting then it is liable for penalty as well. It was in the Deregulation Act 2015 that Landlords were given a break, if they complied fully with the law on Tenancy one they did not need to re-protect the deposit and if they protected promptly after realising they were also given a break. Otherwise each failure draws sanctions.

2. The Court does not care about much, it is binary, you either protected it within 30 days or you didn’t. You do not say how late or whether there were factors that forced you to protect it, such as trying to issue a Section 21 and realising you had screwed up. A Court WILL take into account culpability, this varies from Court to Court. If you protect a deposit 45 days after receiving it the Judge is likely to consider it on the lower end of the scale between 1x and 3x the deposit (per tenancy). We had a case recently where the Landlord’s agent forgot to protect the deposit for 3 tenancies, they protected it AFTER the tenant left and they took several months to return the deposit. We avoided court for 9x the deposit which is what we would have got if we had gone to Court but they would have paid legal and Court fees too. The agent paid it. Can you see what I mean now about culpability. The Court does not care about apparent anything, especially not scooter parts because they are not in the legislation.

3. No this is NOT a disgraceful stupid law, this is an essential law, right now it is about perfect, there is a deterrent and it is working. Deposit protection has been a requirement since 2007, so no excuse. I can bet that from now on you are going to make damn sure that you protect tenant deposits in future. The problem is that many many landlords think of the deposit as a redecorating fund. I had a case not long ago where the rent was so high that deposit protection does not apply. I saw the inventories both produced by an external company. Honestly hardly anything needed to be done, but the Landlord had his builder create invoices for over £9000. We could see from the property photos online that they had used the money to add new flooring, but the old one was fine, no issues at all, not even put in the inventory. So now, for valid tenancies, we have three deposit protection companies. They will handle a claim for damages for free up to the amount of the deposit, otherwise you take the tenant to Court. You can even protect the deposit for free. The sanction goes to the tenant because it is they that has been wronged not the state, they lost the protection and were put at risk. It is also done to encourage there to be enough cases to remain a deterrent. The same applies to an unlicensed Landlord (where required), the sanction is 12 months rent, choke on that! I have had a deposit protection case for £36,000. It is more than filling in the form, there is a payment to be made, either of the deposit or a paltry amount if you use the insurance version. Yes what you are not seeing is that there is a law and you must comply, it does not matter if the tenant is a scooter thief, a pimp or an armed robber, you broke a law and risk being punished under the law just as they would if they got caught. You can always give the scooter parts to the Police. Right now you are blaming a tenant you are already pissed about because YOU made a mistake. With the right letter Court can be avoided, you can put this down to experience and improve your processes.

4. I am happy to review your case, but let me be clear you need to be able to follow instructions, there is a small window of time to prepare a case because these are Part 8 procedures. I assess each case based on the evidence, I will give you a means to get that to me in a secure and prescribed method. Note, I will not rush around because you waited until the last minute. Just contact me via the forum, using the instructions in post 707 and let’s see if we can get this down to the minimum they are likely to get if they went to Court.

Contact to me via the forum private message system. See post 703 above for how to do this.

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Nice Guy Landlord 22nd June, 2020 @ 14:11

David
sorry not to have responded quicker. Very annoying when you have kindly taken an interest. (I checked this site a few times in the 24 hours after posting, then have been waiting for the activation e-mail. I've just asked for another one, but it's still not coming. Not sure if there's a small glitch in the system).
I am trying again to reach you, following the 703 instructions, but thank you already for these very useful clarifications.
The Foolish Nice Guy.

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David 22nd June, 2020 @ 15:18

@NiceGuy

In the past it seems to be hotmail issues, try another mail provider if you used a hotmail/outlook account.

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Mariam 9th July, 2020 @ 18:49

Hi David
I have problems with my tenant who is in rent arrears and I want to evict her.
I was a couple of weeks late on registering deposit and providing prescribed information. I than did not provide further prescribed info a year later when in renewed to a periodic tenancy. I only provided that info again a couple of years ago. Presumably in the case of an AST starting over 7 going to renewal as a periodic tenancy a year later (over 6 years ago) the tenant would now be out of time to raise any claim or counterclaim in respect of deposit breaches?
Do you agree that a Section 21 notice however still remains invalid unless the deposit is released? Under DPS if the tenant does not confirm acceptance of the deposit arguably it has not been returned to the tenant before issue of a S21. In these circumstances would you consider that I am still able to successfully issue S21 proceedings on the basis that the tenant cannot counterclaim for deposit breaches in light of expiry of the limitation period?
If a deposit breach is still within the limitation period can my tenant counterclaim for deposit breaches in respect of any S8 proceedings?
I would really appreciate your help.
Thank you
Mariam

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David 10th July, 2020 @ 10:47

@Mariam

You will struggle to evict your tenant because of the Pandemic, the Government put a block on all eviction proceedings and this was extended to 31st August, it may even be extended again.

However, there is a more serious problem, there are typically around 10,000 evictions a month in the UK, the Courts have been out of action since March so there will be a massive backlog. It was already taking an average of six weeks to get a Court hearing following the expiry of a legally valid S21 notice and a bit longer for S8 notices.

The actions you take will depend on the employment status of the tenant and which benefits they are claiming. If they are on Housing Benefit then you can request the Council to pay it directly to you once 6 weeks of arrears have accrued. If they are on Universal Credit you need to make the request from the DWP via local Job Centre Plus offices. This needs to be done delicately, I can help you with how you word this and the best approach.

A couple of weeks late protecting the deposit is a breach, but a very low level one that would likely see an award of 1x the deposit if defended properly.

I would not rely on the 6 and 7 year age of the tenancy being a barrier to proceedings being brought against you. I have seen cases where claimants were able to get to the Judge to extend the allowance because of the tenant not becoming aware of the breach. If I were pressing a claim I would be confidently using this, although I know of a few where it was rejected. The problem is that if a poor tenant appeals the rejection it will not cost them a penny, but your costs will increase substantially. If they keep doing this it will get to Appeal Court and make case law.

With regard to the validity of the S21, it is valid if any breach has been rectified prior to service of S21 notice.

So NO I do not

"agree that a Section 21 notice however still remains invalid unless the deposit is released"

The law says that the deposit must be protected in a Government Approved Scheme, the only mention of release is when there is a breach and a Judge orders the return of the deposit under that term. HOWEVER, this does not override your right to claim damages (including rent arrears) against the deposit VIA THE DPS in accordance with your contract when it terminates. The DPS will take damage deductions bases on the before and after evidence, they will take into account the length of the tenancy in this case and not deduct for fair wear and tear.

The DPS have no part in Deposit Protection Claims except that if the parties do not agree to one or the other having the deposit paid to them and decide to go to Court over damages/rent arrears.

I explained above that you might be on thin ice regarding limitations

A tenant does not have to confirm acceptance, the money is in the DPS and it is the DPS will decide what to do with it, their paperwork is evidence. Moreover, it is only on very very old tenancies that a deposit has to be returned to the tenant (case law only affects such old tenancies).

Also a Judge will likely consider the deposit in safe hands if it is with the DPS. The law in this area was written for Landlords who had not protected the deposit so had it in their possession, it is not foresee that Landlords would rectify their mistake.

I am firmly of the opinion to use the right law as the right tool for the job, but I also like a belt n braces approach. So as there are rent arrears S8 would be the appropriate tool and it would not be a bad thing for a Judge to see that there are arrears.

If a tenant made a counterclaim I would suggest to the Judge that it does not warrant a delay in proceedings and that you are willing to accept such a liability and give them the case law that shows the culpability likely to be 1x the deposit in your case. I would come to Court with a settlement agreement for that to save the tenant filing a counterclaim and generating more costs. Judges like anything that saves their time.

Issuing a S21 notice as well is a cheap way to double down (it is just a notice)

NOTE YOU MUST USE THE SPECIAL CORONAVIRUS VERSIONS OF S21 AND S8 WHICH GIVE 3 MONTHS NOTICE TO QUIT. IF ISSUED TODAY YOU COULD NOT BRING ACTUAL PROCEEDINGS UNTIL THEY EXPIRE ON OR AFTER 11TH OCTOBER 2020.

DEPENDING ON AREA I ANTICIPATE GETTING THE MATTER BEFORE A JUDGE MAY TAKE A YEAR AS THERE WAS A BACKLOG ON THE DAY OF THE LOCK DOWN AND A FURTHER SEVEN MONTHS OF CLAIMS BY THEN AND COURTS ARE NOT YET FULLY OPEN. ALSO NOTE S21 HAS A USE IT OR LOSE IT LIMITATION, SO YOU WOULD NEED TO FILE PROCEEDINGS BEFORE 10TH MARCH 2021.

As your tenancy is of 6 to 7 years you may also consider asking DPS to refund part of the deposit in light of the Tenant Fees Act, which has now rolled over to all tenancies.

So my advice would be to "turn off the tap" by claiming the Housing Benefit from the Council.

You can then draft a letter to the tenant to offer to settle any outstanding issues and put together a repayment plan.

I can help you with these but providing more detail on a live case is not advisable on an open forum.

So I suggest you contact me via the forum using the forum link below

https://www.landlordforumproject.co.uk

Join the forum

Confirm the email (note hotmail/outlook addresses rarely work)

Once fully registered and logged in use link below to see my profile and there will be an option bottom left of page to send me a private message

http://bit.ly/davidpip

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Mariam 10th July, 2020 @ 13:13

Thank you David
This is very helpful. I have some other queries but I will try and contact you privately via the forum.
Kind regards
Mariam

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Mariam 10th July, 2020 @ 18:02

Hi David

I have private messaged you. Still getting used the website layout. Just want to check you have received it?

Many thanks

Mariam

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John 30th July, 2020 @ 22:06

Surely the best idea is to simply negotiate a new contract with the tenant, for whatever real (or made up) reason – i.e. that the fixed period has come to an end (or your address for serving notice has changed); on that newly signed contract you would then be able to protect it within 30 days?

Assuming this works, would you have to physically return and then re-receive the deposit to be completely safe? That's the only issue I can think of.

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David 30th July, 2020 @ 22:35

@John

The tenant has 6 years, easily set to from when they became aware of breach.

In any negotiation one has to find what you can do for the other party, but it depends on at what stage a tenant finds out. While they are still a tenant, soon after they leave (usually because a Landlord does not return their deposit promptly or takes something they do not agree with) or years later.

Signing a new contract does not resolve the legal breach and all a tenant would need to do is get the data from the relevant Deposit Protection organisation.

The days of physically returning and re-receiving are pretty much over, the Deregulation Act 2015 took care of that.

It all depends on the date of tenancy, in all but one scenario a Landlord is best to put the deposit in a scheme, this will actually help the Landlord if there are arrears and stop a claims company asking for it back.

The best solution is a settlement, ideally with the tenant but if it has got to a claims company I can help there too.

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Rob 6th August, 2020 @ 21:56

Hello, no idea if you are still replying to comments but i was wondering if you could help.

We have recently ended a tenancy with our landlord and he is claiming back our deposit. However, we have noticed that only part of our deposit has been protected. The full amount went to him at the beginning of the tenancy. Is this something we should bring up to help reclaim our deposit?

Thanks

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David 7th August, 2020 @ 08:30

@Rob

Each case is individual and there are numerous case law decisions that lead to different outcomes.

As you have a live case and these comments are public, I suggest you contact me via the forum private message system.

Please see post 757 for how to do this.

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