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 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!

677 Comments- Join The Conversation...

Showing 627 - 677 comments (out of 677)
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ANA22 14th September, 2018 @ 17:21

Some advice please,
I recently won a case against my dodgy landlord because they didn't secure my deposit and lied about it resulting in the maximum fine.. now i am being continually emailed by them claiming that i am a liar, and they are hard done to and they are the victims, etc etc..

Is there anything i can do ?

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David 14th September, 2018 @ 18:20

@ANA22

Have you been paid the Judgement yet?

Did you have a Solicitor?

Are you still in his property?

The best thing to do is to report it to the Police, under Protection From Harassment Act. There needs to be at least two actions of Harassment before you contact them, then probably another before they will act (on things like text or emails), but you can ask they keep a record of it.

If the messages are menacing or escalating then they may take it more seriously.

Also you must not have responded in a similar manner to the Landlord, it is best to not reply at all.

It really depends on how bad it is; there are several options open to you.

If the claim has not been paid you can pay £80 to escalate to HCEO's and have them enforce it, but that is a bit harsh if it is just one email.

If it has escalated to Stalking, then read this guidance

https://www.cps.gov.uk/legal-guidance/stalking-and-harassment

You could pay the Court to ask the same Judge to make a simple addition to the Order that the Landlord cease and desist from contacting you and pay the sum via the Court or your Solicitor.

If it continues then an injunction is an option, but it will probably die down if you just ignore it. If you get an injunction then it is a Criminal Offence to breach it.

If you respond to the message you give it oxygen, so no matter how bad it is do not reply.

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Tim 18th September, 2018 @ 08:57

This is a fascinating read, though I have to say, I was hoping we would never be here.

The scenario:

Tenants have been in the house on an AST for 5 months. However, the tenants have recently split up. The money maker is happy to step out and go elsewhere, the non money maker wishes to stay in the house with the kids. Clearly they won't be able to afford it in the long term. It should be noted that no payments have been missed as of yet.

The stinking log on the carpet however is, the deposit although taken and secured ( we are nice ), it wasn't registered officially so its worth nothing on the paper it isn't printed on! There are vaguely mitigating circumstances in this regard but one has failed miserably and its clear cut.

Any suggestions on how to move forward for a clean break?

Thanks kindly

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David 18th September, 2018 @ 10:47

@Tim

You raise several issues here:

1. Both parties are liable for the original contract until it is legally terminated and for the subsequence SPT created if they do not leave the property if it expires.

2. If one party leaves and it is the money maker as you refer to it, then presumably they will be making some sort of contribution to the mother for the children.

3. To remain in the property by herself the mother really needs a tenancy of her own, she will need to go through tenant referencing which includes affordability. It may be that the departing ex will agree to be a guarantor for that new tenancy. She will need this tenancy by herself in order to qualify for certain benefits or rather to avoid his salary being taken into account and for Council Tax discount and credits.

4. The rent has been paid in full which is great, but you really need to reach out to her to ask what her plans are long term, would she prefer to use this to get into social housing for example?

5. You are very vague on the issue of Deposit Protection, yet it is a very clear binary choice, you either protected the deposit properly in accordance with legislation in one of the three approved Government schemes within 30 days and issued the Prescribed Information also within 30 days OR YOU FAILED.

You say it was taken and secured but that could mean you paid it into your own deposit account or that the Agent has it, that is not securing the deposit at all.

On the other hand you may have protected it in an approved scheme but failed on the PI.

For the sake of other landlords, with respect, "it wasn't registered officially" means that when you said it was secured you were talking BS.

Secured means secured in accordance with the Housing Act in a government approved scheme in accordance with the rules of the relevant scheme.

There are many ways it can go wrong, you (or an agent) can use an insurance backed scheme but fail to renew it. This is especially common when the agent is fired.

So it should be a custodial scheme every time, which is free.

Without further detail of what you mean we can just assume you screwed up.

There IS mitigation and you can settle matters without going to Court or even paying the minimum they are likely to get if they go to Court which is 1x the deposit per tenancy where there was not continual protection.

Have a look at the post below but first you might want to have a chat with the remaining tenant and ask them what their plans are, she may actually want you to issue an S21 (after first protecting the deposit of course).

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

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WiggyClaws 18th September, 2018 @ 11:09

We moved into a property let by an agent 6 years ago. We were asked to pay 3 months rent as a security deposit, which we did along with the first months rent. Now the agent says that the deposit is only partially protected as the rest was an advance rent payment. We have a contract that clearly states that £4450 was a security deposit, but only £1350 was ever put into a deposit scheme. The landlords are lovely and we are on good terms with them but we're very angry that the agent has done this. What recourse do we have? Is there any option other than to take them to court?

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Tim 18th September, 2018 @ 13:08

First of all @david, thanks for the response.

1. Both parties are liable for the original contract until it is legally terminated and for the subsequence SPT created if they do not leave the property if it expires.

SPT?

2. If one party leaves and it is the money maker as you refer to it, then presumably they will be making some sort of contribution to the mother for the children.

That is the suggestion but one can't account for human nature later down the line.

3. To remain in the property by herself the mother really needs a tenancy of her own, she will need to go through tenant referencing which includes affordability. It may be that the departing ex will agree to be a guarantor for that new tenancy. She will need this tenancy by herself in order to qualify for certain benefits or rather to avoid his salary being taken into account and for Council Tax discount and credits.

Quite and they would fail here

4. The rent has been paid in full which is great, but you really need to reach out to her to ask what her plans are long term, would she prefer to use this to get into social housing for example?

I believe that maybe her wish. I would need to clarify. What avenues does this open up though?

5. You are very vague on the issue of Deposit Protection, yet it is a very clear binary choice, you either protected the deposit properly in accordance with legislation in one of the three approved Government schemes within 30 days and issued the Prescribed Information also within 30 days OR YOU FAILED.

It was a fail and I did screw up. Personal issues got in the way and I simply forgot. However, its no excuse. Sorry for not being clearer. I wasn't aware of the custodial scheme and will look into it.

There IS mitigation and you can settle matters without going to Court or even paying the minimum they are likely to get if they go to Court which is 1x the deposit per tenancy where there was not continual protection.

Have a look at the post below but first you might want to have a chat with the remaining tenant and ask them what their plans are, she may actually want you to issue an S21 (after first protecting the deposit of course).

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

That is interesting too and I will read the post. What if the other party was to surrender the tenancy? What chain of events would that trigger?

Thanks again.

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David 18th September, 2018 @ 13:32

@WiggyClaws

If it looks like a duck and it quacks like a duck then it is a duck.

When money is taken as a security for the performance of a contract and that contract is a tenancy agreement, then it is called a deposit.

Unfortunately, the Landlord is the victim here too BUT they will have a right to counter sue the Agent.

I have had similar cases settled by the agent involved, the Landlord was very serious and the agent recognised that as the professional involved they were negligent.

Did the Landlord/Agent give you a three month holiday on the rent or do they still have it?

I working on a case at the moment where this very issue came up, the Landlord took separate deposits for different aspects of performance. The Act and the Courts see this for what it is and they count the unprotected amount as liable for sanctions.

So you can bring a claim for a multiple of £2700 being the unprotected amount. You said that it has been six years, so I imagine that there was more than one tenancy.

So the claim would be for between 1x to 3x the deposit for EACH tenancy agreement and the SPT counts as one tenancy agreement too, PLUS THE RETURN OF THE DEPOSIT.

There is no reason for you to lose out further just because the Landlords are lovely people but to advise them that you suggest they speak to their Solicitor regarding suing the Agent.

I would not advise putting too much information here on the blog as it may prejudice your case. Instead contact me via the forum and I will assess your claim and can help you with letters and paperwork. Check Post 608 above for directions on how to join the forum and PM me.

The goal would be a settlement where the agent pays for their negligence.

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David 18th September, 2018 @ 13:48

@Tim

If the Tenant leaves of her own accord she is deemed as intentionally making herself homeless and this will scupper her claim for social housing.

When the Tenant contacts the Council the very FIRST thing they ask is whether the Deposit was protected because they know that this can delay the claim for housing and they are desperate.

So what you need to do is get in front of this head on.

Ask the Tenant to meet you on neutral territory in a coffee shop, explain that you are sorry to hear about their personal circumstances having changed and you just want to know what their long term plans are. Do they want to use this negative event as a way to get into Social housing or do they want to have a new tenancy with guarantors and remain in the property.

Be aware that some couples split on paper in order to get into social housing, but that should not affect your decision.

This is a business matter, you would not let a property to someone who could not afford it, it would be reckless as it would force them into debt eventually.

As you say with splitting couples there is a lot of emotion and people use money and children to wield power, so having a guarantor is essential if they wish to remain in the property.

If the Tenant says she wants to stay then tell her you need notice from her and Ex to terminate tenancy giving the notice required in the agreement, say 30 days.

You then have her sign a new agreement immediately that commences the day after the old one expires and you have the Ex or someone capable, sign as a guarantor.

If she wants to go down the Social Housing route then you can come to an agreement with her alone to settle the claim (probably for £300 and a good reference) and agree not to authorise a claim by her ex. As joint tenants it requires both parties to bring or authorise the claim to be brought.

Then it is a matter of ending the original tenancy.

You also need to do an inventory with both parties so that you draw a line in the sand for any claim for damages on the property. If you left that till later the Ex will say she damaged it after he left.

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Tim 18th September, 2018 @ 14:10

If the Tenant leaves of her own accord she is deemed as intentionally making herself homeless and this will scupper her claim for social housing.

Indeed.

When the Tenant contacts the Council the very FIRST thing they ask is whether the Deposit was protected because they know that this can delay the claim for housing and they are desperate.

Again, yes indeed.

So what you need to do is get in front of this head on.

Ask the Tenant to meet you on neutral territory in a coffee shop, explain that you are sorry to hear about their personal circumstances having changed and you just want to know what their long term plans are. Do they want to use this negative event as a way to get into Social housing or do they want to have a new tenancy with guarantors and remain in the property.

We are almost at that point now the the individual in question cannot get the guarantors and as you have mentioned below. As you also point out it would be grossly remiss to take anyone that cannot support themselves. The other party has got guarantors but is happy to stay somewhere else until the dust settles.

If the Tenant says she wants to stay then tell her you need notice from her and Ex to terminate tenancy giving the notice required in the agreement, say 30 days.

You then have her sign a new agreement immediately that commences the day after the old one expires and you have the Ex or someone capable, sign as a guarantor.

As discussed, not appropriate but they may change their mind!

If she wants to go down the Social Housing route then you can come to an agreement with her alone to settle the claim (probably for £300 and a good reference) and agree not to authorise a claim by her ex. As joint tenants it requires both parties to bring or authorise the claim to be brought.

And I would assume that would have to be written officially somewhere? Otherwise they could simply go back on their word?

Then it is a matter of ending the original tenancy.

Via an S21? It has a month to go before it goes onto a rolling agreement but I have heard that it can be dissolved earlier if ALL parties agree? Should one let it roll over or nip it in the bud now?

My sincerest thanks again.

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WiggyClaws 18th September, 2018 @ 15:31

Thank you David, I'll contact you on the forum!

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Benji 18th September, 2018 @ 17:17

"If the Tenant leaves of her own accord she is deemed as intentionally making herself homeless and this will scupper her claim for social housing."

It might but it is a fallacy that it always applies.
Read the guidance notes.

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David 18th September, 2018 @ 17:28

@Tim

So you are too late to serve her a S21 because it must give at least 2 clear months notice.

On the day after their tenancy expires it will create an SPT so you need to act QUICKLY or else the sanctions DOUBLE.

First thing to do and I mean NOW is to protect the deposit, use the DPS and do it online in Custodial scheme.

Doing at soonest possible moment is deemed as mitigation.

Yes you definitely need a settlement agreement with one of the parties and there has to be a consideration, which I suggest should be around £300. I can help you draw up an agreement if you contact me via the forum.

Then meet her and ask her what she wants, one of conditions of the agreement will be her giving you her notice. Even if you sign a new 6 month agreement with her that is better than letting it roll over and doubling the sanctions.

Also the fact that the Ex will not sign as a guarantor suggests that you cannot rely on him for rent.

You may have to just accept that you are going to have to take a hit of at least 1x the deposit, issue the S21 and accept the consequences.

It is entirely possible to come to an agreement with the ex instead.

Go Protect that deposit, then call her, keep it friendly and ask if you can meet for a coffee to discuss the way forward.

DO NOT DO IT OVER THE PHONE, people are far more reasonable in person.

Do not assume that they do not know about deposit protection, if they do not know now they will imminently.

If they go to a claims company you will end up paying a lot more even though they actually get less. They are all about the fees.

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David 18th September, 2018 @ 17:38

@Benji

You are right in that different Councils have different Housing Policies and they do have a duty to the children.

However, I know of three Councils that because of age of kids have sought to house them via social services rather than the mothers.

It is a moot point because they will tell her not to give notice or else risk making herself homeless and to argue with that she needs to get legal.

Sadly Guidance is just that, Guidance, not law, albeit that many Judges revere it in absence of case law. Many Councils ignored the 400 page guidance on the homeless so a new law had to be brought in to force them.

The thing for the mother is she will want to keep the Council sweet, if you battle with a Council all the time they will meet their obligation by tinkering with the computer system and offering the worst three properties they have, then when you decline them they kick you off the list.

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Tim 18th September, 2018 @ 21:09

@David

"contact me via the forum."

I must be doing something utterly stupid, I can't work out how to....

thanks

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David 19th September, 2018 @ 07:23

@Tim

I do not know what you are doing wrong, try the following steps:

1. Click on "Landlord Forum" link at top of page or visit

https://www.landlordforumproject.co.uk

2. Join that forum (do not use a hotmail email as we have reports of it losing them, yahoo or gmail are OK)

3. Click on the link you get via email

4. Login in to the forum

5. Then click on the link below to private message me

http://bit.ly/davidpip

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Tim 19th September, 2018 @ 17:33

@david many thanks, message sent this morning.

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emm 7th October, 2018 @ 21:05

Hi

My letting agent forgot to protect my tenants deposit,i had no clue of this until my tenants had moved out
and they discovered that their deposit was not registered months later, but was protected by the end of the tenancy and they got it back.

they are now trying to sue me for x2 times their deposit, originally they was asking for 6x but after my my reply it came down to 2.
they also want 800 in solicitor fees. and if i dont do this were going to curt.

i read in this article it was bought in they can sue your agent as well dose this as well as me or only the agent. and if only the agent why would they come after me in the first place and not to the agent knowing the agent was responsible.
can any one gives me advice. i am not a experienced land lord

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David 8th October, 2018 @ 00:05

@emm

They take legal action against you and you in turn hold the agent liable for all your costs for their negligence. This would include you own legal costs.

It sounds as if you have been approached by a claims company rather than the tenant themselves.

They cannot claim such high costs for what is effectively pre-action conduct (assuming they have not filed a claim in Court yet).

Furthermore you have all the mitigation you need, you relied on a professional agent and you are a novice Landlord.

This is exactly what happened in the case law that ratified a County Court Judge the right to use their own discretion, it was a case when tenant appealed that at 2x it was not enough, but Judge felt their was sufficient mitigation. Case is called OKADIGBO vs CHAN

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

Do not quote more detail about your case here but contact me via the forum (see post 641) and I will draft you a letter to send to them and the agent to get the claim down to 1x the deposit and we can work on that fee too.

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NJC red 16th October, 2018 @ 11:28

Hi David,

I've been a bit of an idiot and rented my flat to a DSS tenant who is a friend of a friend, and who couldn't find a property because no one wanted to take DSS tenants at the time.

The time has come where I want to move back into my flat, and everything seemed fine, however the tenant has gone to the local authority for advice, and has basically told me that she has no money to move out so therefore she is staying put.

She is saying that I didn't supply her with a Gas Certificate, and EPC and the How to Rent booklet, which I did.

I have also just registered her deposit with TDS.

By refusing to move out of my flat, this now makes me homeless as I have given notice on my tenancy.

I have just spoken to my local council, who say that if I register myself as homeless, they will put my two young kids into care - which is not an option for me!

Can you please give me the low down on the consequences? - I realise I have made a massive error on two parts - renting to her in the first place, and not protecting her deposit straight away.

I'm in a bit of a pickle, so any advice would be gratefully received!

Many thanks,

NJC

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Simon Pambin 16th October, 2018 @ 11:47

You could try a Section 8 notice, under Ground 1: https://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/

That should in theory avoid the issue of whether or not the GSC, EPC and How to Rent were or were not served.

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David 16th October, 2018 @ 13:09

@NJCRed

Simon is right that you can avoid the blockers of S21 by using S8 Grounds, but be aware that for Ground 1 you need to have been resident in the property immediately prior to the tenancy that you are asking the Court to terminate.

The Court will take into consideration the hardship of both sides and even if your tenant has kids you will likely trump them as home owner.

The fact that you gave notice on your current tenancy means that you could be regarded by the Council as having intentionally made yourself homeless. So I hope you have a series of communications that show you intended to take move back and gave your notice in good faith or that you were evicted yourself.

Whilst I have had at least 3 cases where Councils have taken children of homeless parents into care, you need to understand the procedures.

They can't just take your kids because you are homeless, in fact they have a duty of care to provide you and your kids with emergency temporary accommodation for 6 weeks while they assess your case, 6 weeks is a target but they may take longer to reach a decision, I have known some to be 3 to 4 months.

In the cases I have had before, the children were close to 16 and the single mothers and single father all had drug problems. So they could argue it was in the best interests of the child to be housed away from their parent.

The Councils are using this tactic to reduce their claims, they do it in areas where there is a poor supply and they are already failing in their statutory duties for families. They have to have compelling grounds and whilst Housing are leaning on space that Social Services has to accommodate children, it cannot be the sole reason to break up a family and in fact I would urge you to contact your MP to have them contact the Chief Exec of the Council for giving out this scaremongering bad advice in an attempt to "gatekeep" people that they have an obligation to.

S8 is not a quick option, for Ground 1 the notice must be 2 months and it is always good to have the clause in your contract that warns at the beginning of the tenancy that the landlord is giving notice to the tenant that possession might be recovered on this ground or if the Court is of the opinion that it is just and equitable to dispense with the requirement of notice.

https://www.legislation.gov.uk/ukpga/1988/50/schedule/2

One tactic that can be used if there are arrears grounds is to give the S8 notice with 2 weeks notice on the arrears grounds, then apply for the hearing if they do not leave within 2 weeks, your tenant will be sent the usual forms and file their defence, you then add the additional ground asking the Court to consider that it is just and equitable to dispense with the requirement of 2 months notice.

Ground 1 is mandatory but you should throw in all that apply for good measure, a list of them is below in plain English:

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

I imagine that if the Council tried this stunt on you they may also be going against Government advice and waiting for tenants to be evicted before offering them temporary housing. Rather than counting the expiry of the S21 or S8 notice.

With regard to the Deposit you will be facing a claim of between 1x and 3x the deposit per tenancy, but I can help you reduce that to 1x and sometimes get the costs kicked out before they are created.

It is best to contact me via the forum going forward (see post 641 for instructions) as you may prejudice your case by discussing too much detail openly. It is good that you protected it, I hope it is in a Custodial scheme, also be aware that if she already stayed beyond the end of the tenancy then you will be facing a sanction for both tenancies if you did not protect before the tenancy expired and became statutory periodic tenancy.

You can get a S8 from this site or on the web and I am happy to help you draft a letter for the tenant to accompany the S8 if you contact me via the forum.

You also have access to Legal for Landlords (above right) who charge around £99 to do the S8 with a discount for site visitors. The costs for them to go to Court obviously increase substantially (budget on £2k all in) but if you lived in the property immediately prior to the tenancy or there are arrears there is no reason why you can't file the S8 claim yourself.

Note that if your tenant is already in arrears they need to be 2 months of arrears before you can count on them as a mandatory ground and the tenant may well bring them just below that level with an offer to pay remaining over next 6 months.

I might have proposed a settlement with the tenant where you offer to pay her to leave and we structure it so that it included any Deposit claim settlement but chances are she herself will be seeking Council Housing (if she is eligible) and so will not leave of her own accord, as they will say she intentionally made herself homeless.

There is nothing stopping you issuing a S21 as well if you have evidence of serving the prerequisite paperwork, the EPC is not a show stopper as it is often on the website you advertise the property on and that counts. The How to rent would require you to serve the latest version (from July) anyway so you would include that with the S21. You have rectified the deposit shortfall and can deal with the sanction later. The most critical is the gas safety certificate being in place at the beginning of the tenancy or completed and served within 28 days.

Service of both notices gives you a belt and braces option, it shows the tenant that you are dead serious.

As this may take 3 to 6 months to resolve you might want to seek your own AST.

An AST can be under 6 months now but eviction can't be enforced until 6 months.

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Benji 16th October, 2018 @ 14:52

be aware that for Ground 1 you need to have been resident in the property immediately prior to the tenancy that you are asking the Court to terminate.

It is "at some time" not "immediately prior".

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David 17th October, 2018 @ 13:27

@Benji

Thanks I am intimately aware of the Act, but what may not come over in the legislation is that a Judge will consider the hardship impact to the tenant being evicted and weigh that up with the hardship of the Landlord.

Over the years there have been a real understanding that a Tenant is severely impacted for what is in effect a no fault clause and S21 is considered the proper route for that.

So when considering the Landlord seeking possession under Ground 1 they seek evidence of the residence in the property, usually requiring more than just Council tax and utility bills as evidence. It has evolved that WHEN they were resident has become a factor, often because a Landlord might have lived in a property but had to rent it because their financial circumstances changes so only moved out to reduce risk of arrears and always had the intention of moving back in.

So if a Landlord was resident immediately before the tenancy it carries more weight.

There is also preferred that the Landlord warned the tenant of potential possession being sought when they wanted to move back in, but a Court can choose to ignore this.

A clause in the contract such as that below would suffice:

"Notice is hereby given that the Landlord used to live in the Property as his or her main home and in accordance with Ground 1, Schedule 2 of the Housing Act 1988, that possession might be recovered should the Landlord wish to occupy the property again as their main residence. In such circumstances full statutory notice will be given to the tenant in accordance with the said act, currently two months notice."

When these matters come before a Court both sides bring all the arguments they can, a tenant will not only show the hardship to themselves, but show how hard it is to obtain a replacement tenancy and even quote school catchment for their children who are settled in local schools.

With the shortage of supply and increased demand in the market, what was previously a factor in some cases has become a norm for Judges.

While I often seize on interpretation of text with an Act and in case law, there are sometimes factors that are unwritten.

So when I mention things that are not explicitly mentioned in the Act I do so for valid reason of experience and to help Landlord and Tenant to not get ambushed in Court.

To be honest it is easier to use S21 and to rectify anything that prevents the service of it.

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Benji 17th October, 2018 @ 14:02

Thanks I am intimately aware of the Act, but what may not come over in the legislation is that a Judge will consider the hardship impact to the tenant being evicted and weigh that up with the hardship of the Landlord.

Ground 1 is a mandatory ground.

The court's opinion only comes into it if no prior notice was served.

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Benji 17th October, 2018 @ 14:41

@David,

"I am intimately aware of the Act"

Clearly you are not as your long post shows you are completely unaware that ground 1 can be used even if the landlord has never lived at the property.

I've done it.

Obviously you have just looked at the link helpfully given by Simon Pambin.
Unfortunately the information in the link is wrong.

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Simon Pambin 17th October, 2018 @ 16:42

Out of interest, given that the gas certificate appears to be the one element that rules out a Section 21 for all eternity if it hasn't been served, what sort of evidence would satisfy a court that it had been served, if the tenant denies having received it? Obviously, in an ideal world you'd keep correspondence and preferably get the tenant to sign for it at the time but, in the absence of that, would evidence that the check was carried out be sufficient in itself?

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Benji 17th October, 2018 @ 17:40

@Simon,

Probably* not as the way things stand at the present time.

*Probably as it has not been fully tested yet.

Posted at 18.39 17th October

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David 17th October, 2018 @ 19:19

@Benji

I post on this site to help Landlords and Tenants with real problems not to debate the law, there are enough petty keyboard warriors around, don't be one of them.

I stand by my post in its effect in Court.

@Simon it is not forever unless has or is likely to go to SPT, even then there is S8, whilst it is binding in London I know other Judges are taking notice in other Courts around the UK but even these decisions are not binding because they are not Higher Courts.

Having said that I often show a Judge several redacted Court Orders just to let them know what other Courts do, they do remind me that they are not binding but I usually end up with the same decision and another Order to redact for the next case.

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Benji 18th October, 2018 @ 09:41

@The Landlord,

Can you edit your blog here?;

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

The information regarding ground 1 is incorrect.

Here is the correct wording;

http://www.legislation.gov.uk/ukpga/1988/50/schedule/2

Whilst it's amusing that David has been made to look a right tit ("I am intimately aware of the Act" Ha! Ha! -Priceless), it has also been quoted in misleading advice here;

https://forums.moneysavingexpert.com/showthread.php?t=5588042

Ground 1 is regularly used by members of HM forces serving abroad as they buy a property in their home town with the intention of living in it when they eventually leave.

Cheers! Benji

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David 18th October, 2018 @ 13:37

@Benji I am disappointed that you have in fact turned out to be a Keyboard Warrior.

I have stated my position based on experience and have no desire to edit it even if I could.

I will not say more on the matter and am happy to help genuine people, Landlord or Tenant who come to this page in need of help.

I have helped hundreds from this site and helped Landlords and Tenants through very difficult cases, I have a superb record of success for those that ended up going to Court or seeking a settlement.

Once case took over 9 months and over 800 emails because of an incredibly vexatious tenant, the Landlord had already offered to pay over £2000 in settlement even though they did not have any liability at all. In the end the tenant discontinued under a Tomlin order to keep things confidential, the Landlord paid zero sanction, £150 in settlement of contribution to Court fees and no legal fees. They were incredibly grateful.

That may be the best result to date but also managed to get a tenant that had not paid any rent for 5 months to leave in 4 days, both parties were happy.

My general advice is to seek settlement but this is not always possible with some people (whether Landlord or Tenant).

Many people contact me directly via the forum and I have no problem with that at all.

I am a very direct person and will advise either side if I think they are being unreasonable or if I think they themselves are dysfunctional.

I help people on here Tenant or Landlord for no fee because I feel they need help and most lawyers are not experienced in Housing Law. I hate the claims companies and discourage any tenant from using them, I also hate how much it costs Landlords or Tenants to fight such cases.

I firmly believe that the Deposit protection Legislation is a good thing. We had a lot of "taking the piss" by Landlords and Tenants alike in the early days but the legislation is almost perfect as for intended purpose, except for a few snafu's that still remain.

I am not going to debate those here because it encourages vexatious claimants.

As I said, if people want to skip posting here and contact me directly via the forum (see post 641) I am happy to help where I can.

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The Landlord 18th October, 2018 @ 14:04

@David
That Benji character has been bullying me for years!!

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Benji 18th October, 2018 @ 14:35

@The Landlord,

Only when you fecked up and made schoolboy errors.
You made some real howlers in the early days! Not so many now though, obviously learning.
Speaking of which, how about changing this incorrect post about ground 1 that caused David to fuck up on;

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

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The Landlord Avatar
The Landlord 18th October, 2018 @ 15:01

@Benji
A lot of your issues were on subjective issues!! Stop bullying!

It's on my to-do list, don't worry! I need to reword it so it's easier to digest for Joe Bloggs.

When I Googled around, a lot of other resources have Ground 1 described similar to what I have.

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Benji 18th October, 2018 @ 19:13

It's on my to-do list, don't worry!

Thanks.
To my (and your?) huge surprise Propertyinvestmentproject is now taken as a serious landlord resource.

I need to reword it so it's easier to digest for Joe Bloggs.

Stop bullying David!!

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Ruth 19th October, 2018 @ 03:18

Hi David

Thank you for all your useful advise on here. I am a landlord and I have two properties where I did not protect the deposit due to not getting clued up with the right info.

First property
I rented it to a tenant with a council backed deposit bond but as a safeguard, decided to take an additional one month in advance as he failed his references. I only just found out yesterday that the one month advance rent will be treated as a deposit. Oh my goodness! What are my options? I am ready to return his deposit to him if I need to as I have the bond to call upon if needed. Alterrnatively, I can choose not to renew the council bond for the new tenancy year and perhaps now treat the money as a deposit and protect it (explaining that I am now protecting the deposit due to Council bond not renewed). What are my best options? Kindly advise.

Second property
I took the tenants through an agent in 2012/2013 but the deposit wasn't protected. I really want to get these tenants out as they have not used the property well and do not pay their full rent so owing so much over the years. As they are claiming housing benefit, there is a shortfall which they pay when they feel like. Amount owed will be close to £4-5k if not more over the years. The rent is £1200 although I had tried to negotiate with them so the rent paid can be at least £1000 per month. I have not been able to serve a section 21 as the deposit hasn't been protected. I had mentioned to them previously that if happy to use their £1000 deposit (rent amount at start of tenancy) to cover some of the shortfall but got no concrete response.
What are my options with these tenant? It might be worth adding that the council benefit paid is on the basis that the tenant is a single mother with her three children. I am aware though that the husband fully lives at the property and works full time so I am not sure why they are not reporting this and pay the shortfall too.

Look forward to your kind response and advise of options to take.

Thank you!

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Eric 19th November, 2018 @ 15:46

@David

Hi David,

My landlord hasn`t protected the deposit. I have paid always on time and the flat is in perfect condition. I dont want to take legal action against him but i am thinking not to pay for the last 6 weeks in the flat as i am moving out. Is this legally okay please?

Thank you

Eric

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David 19th November, 2018 @ 19:13

@Eric

Sorry but that is definitely NOT OK as you signed a legally binding contract to pay rent.

You can negotiate a settlement with your Landlord but I would not suggest you do that until you have left the property and they have returned your deposit with no allegation of damages as some Landlords invent damages to reduced their obligation. They do not realise that as a statutory penalty it cannot be offset and they need to bring a separate claim for damages and breach of contract, paying the appropriate fee.

I would be pleased to help you and your Landlord come to a mutually acceptable agreement without the need for legal or court fees, please contact me via the forum

Following these steps to PM me via the forum:

1. Click on "Landlord Forum" link at top of page or visit

https://www.landlordforumproject.co.uk

2. Join that forum (do not use a hotmail email as we have reports of it losing them, yahoo or gmail are OK)

3. Click on the link you get via email

4. Login in to the forum

5. Then click on the link below to private message me

http://bit.ly/davidpip

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David 19th November, 2018 @ 19:45

@Ruth

Sorry I did not see your message until today.

First property

A lot of Landlords have fallen into this trap of asking for a higher deposit and not realised that it will be counted as a security on the rent, thus a deposit.

I am wondering whether as this is a Council Tenant they may be on Housing Benefit or Universal Credit with rent being paid direct to you?

If so you write a letter saying that the advanced rent they paid means that they are actually ahead in their rent payment so you are returning the advanced rent, do not refer to it as a deposit.

If they pay you rent directly then simply change the letter to say that they do not need to pay the next rent payment as they are ahead in their rent payments.

If you are lucky it may not be brought up, but paying it back does not get you off the hook.

One way to obscure it is to say that you have done your audit for your accounts and notice that they have been overpaying their rent and that you took the first two months upfront expecting them to start paying rent monthly for month three onwards. Obviously do not do this if any emails or texts contradict this.

I would stick with the Council bond because it does not draw attention to it not being protected.

Second property

Sadly it is poor performing tenants who will be most likely to make a claim.

If the Rent is £1200 in the contract it is £1200.

Now legally you have the obligation of between 1x and 3x the deposit for EACH tenancy (do not give the details here as it may identify you). However, you have some leverage for a settlement if it is used properly, because they will probably want the Council to put them in Social Housing.

The problem for them is that if they leave of their own accord the Council will deem them as intentionally homeless.

Housing Benefit is paid based on need and income, not on whether they got back together, in fact it is his return that has probably caused the Council to pay less as they will take his income into account. If they have not told the Council that he is back then that again gives you some leverage.

You can and should protect the deposit immediately, if you do not want to draw attention to it then say that you are moving it to a new company because they offer a free service (DPS custodial is free, insurance based is not). Protecting the deposit rectifies the fault and you may then issue a S21 with a copy of the latest "how to rent" doc, I am assuming there were no failures on Gas Safety certificates?

If there were any other issues there is always Section 8 and using this is better anyway as you can claim your arrears. I can help you with this.

If your Agent had a full service agreement with you and their website does or did say they took care of all your legal obligations I can help you get them to pay the sanctions and wrap it up in a settlement agreement with the tenant.

To be honest you are unlikely to get any allowance for not protecting a deposit from a Court because of arrears, it is better to plead mitigation of being novice Landlord, blame the agent or suggest confusion was caused by the agent.

If they report the Shortfall the Council will deem them as intentionally homeless and may refuse to put them on list until the arrears are cleared but they still have a duty to the children so will probably put them in temp accommodation or use their private landlord scheme to house them (varies by area).

I use a mediator who may be prepared to help you in this matter without charge if the Tenants will engage.

If you send me a PM via the forum I can give you more advice about how to proceed.

The details of how to contact me via the forum are above in post 663

Again sorry for the delay.

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christine 22nd November, 2018 @ 18:12

Hi, I have just found out today that my landlord has failed to put my deposit in to a tenancy deposit scheme. We paid the deposit on the day our tenancy started by card to an estate agent who then passed it on to our landlord who said they were going to secure our deposit themselves. We have since been in the property 4 months and not received any information on the deposit scheme. I contacted the agent today and they called the landlady who said she hadnt protected it and would do so.A couple of hours later and its in the scheme. My question is she has failed to do so within the 30 days and i think acted so quickly because the agents advised her she had broken the terms of the contract. Is she now liable if we take her to court over this? We have paid our rent on time every month via bacs so have proof and have looked after the property. she hasn't been very forthcoming with repairs needed to the property and has insinuated that an issue with shower drainage is our fault even tho we have documented evidence she was aware of this with the previous tenant. Can any of this impact our chances in court? Thanks

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Paul 22nd November, 2018 @ 21:21

First AST: Jun 2014 until Sept 2015: deposit was paid into DST, and was returned to us in early October 2015.

The first AST rolled over into a periodic tenancy until Jan 2017. The LL had no deposit at this time.

Second AST: Feb 2017 to Oct 2018: we signed a new AST for the same house, same parties, just £50 more in rent. The AST expressly said that the deposit had to be protected... but it wasn't.

We are now somewhere else (still waiting to get the full deposit back, though) and wondering whether we can actually claim up to 3 times the deposit amount, or the Dereg Act 2015 applies to us.

As we started a new tenancy, and LL didn't protect it, I think we can ask them for compensation, but query whether the Dereg Act 2015 may have changed everything.

Your help is very much appreciated!

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David 22nd November, 2018 @ 23:49

@christine

Yes she is in breach of Deposit Protection regulations for not protecting withing 30 days of the deposit being taken but also for not serving you the Prescribed Information. However, there is no hurry as you have 6 years to make a claim but also you may want to think things through.

At this stage you are 4 months into a 6 or maybe 12 month agreement, the shower notwithstanding you may find that this is a great place to live and things improve or you may decide you want to leave ASAP.

So if you want to leave you may not want a claim to create bad blood and potentially fake damage claims when you move out and also the potential of a bad reference to spite you.

If you want to stay and have an initial 6 month tenancy and a new tenancy is signed after the 6 months for say a further 6 months but she still fails to serve the PI, then the gravity of the first failure is increased to perhaps 2x or 3x and a second set of sanctions arises for the second tenancy because the regulations for the first tenancy have not been fully complied with (no PI).

Now to her credit she has mitigated her failure by protecting as soon as possible so if you made a claim right now she would likely get a 1x sanction as a slap on the wrist.

I can fully understand why it made you nervous but now your deposit is protected, you can log into the website of the deposit protection company assuming they have sent you a text or email.

So for now I would hang tight, see if your relationship improves, do not mention the deposit and if asked verbally say thanks for sorting it out.

You may find when you leave she leaves you a glowing reference, gives you back your deposit with no claim of damages and you decide that it is not worth pursuing the claim.

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David 23rd November, 2018 @ 00:54

@Paul

The tenancy details seem a bit vague here; usually tenancies are for 6 months or 12 months to start, you say first tenancy went SPT until Jan 2017 but you do not say when it actually expired or why the deposit was returned in October 2015, some 14 months later.

Assuming that First AST was an 12 month contract there would be no liability for that tenancy as long as the Prescribed Information was served. The PI is supposed to tell you all the FULL details about where the deposit was protected :

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

There is no DST, there is TDS, DPS or MyDeposits.

The deposit needs to have been protected for the whole time, so if an agent protected it for say 6 months but the agent was fired and ended their protection, then sanctions for that deposit would arise.

So let us assume that it was a 12 month contract and the tenancy went SPT in June 2015, the deposit was still protected but at that time Superstrike would have applied to that SPT and a new PI would have needed to be served WITHIN 30 DAYS. A failure of this sort is only likely to get a 1x sanction.

You say the deposit was returned to you in Oct 2015, that does not undo the PI failure of tenancy1 but likely to be only a 1x sanction as the deposit was protected or returned to you.

Strictly speaking the SPT was tenancy2 and the Feb 2017 to Oct 2018 would tenancy3 and maybe tenancy4 if the Feb 2017 contract was not a contractual periodic tenancy.

You say "The LL had no deposit at this time" but you do not explicitly say whether you paid a new deposit in Feb 2017 or whether it was protected?

For the record, it does not matter whether an AST says a deposit needs to be protected, if a deposit is taken it needs to be protected.

As you are saying you are still waiting to get the "full deposit" back, I am assuming that you paid another deposit in Feb 2017 but there may have been some deductions for damages or unpaid rent or the deposit may have been protected and you may be waiting for the scheme administrator to return the deposit?

Again the same question arises about dates; Feb 2017 to Oct 2018 is an unusual period. So was it 12 months that went SPT or was it a contractual periodic tenancy that never expires and continues until terminated according to terms of the contract?

If it was a 12 month contract that went SPT in Feb 2018, then that would be tenancy3 and tenancy4 would be the SPT from Feb 2017 to Oct 2018.

I do not wish to appear facetious, but you say the deposit was returned but say it was not protected for tenancy3 or tenancy4, so I am going to assume you paid a new deposit in Feb 2017 and it was not protected.

The way the Deregulation act works is that if you protect the first tenancy and CONTINUE to provide protection for the duration of all tenancies thereafter then there is no need to re-protect the deposit. This effectively reverses the Superstrike Judgement where new PI had to be served and the deposit was deemed as being taken again (virtually).

The most important issue here is continuous protection, so I would need to know the Term of each tenancy (how long it was written to last for).

A failure of continuous protection or failure to follow all regulations means there is no get out of jail free card for subsequent tenancies.

The Dereg Act 2015 now applies to all tenancies.

It is going to depend on where there were failures, whether the failures were considered severe or minor.

If that first tenancy was protected but no PI was served that is deemed as being as bad as no protection because you had no idea how to dispute a claim on it has one arisen.

The return of the first deposit would mitigate that PI failure (if there was one) or cease the requirement for protection thereafter if PI had been served in accordance with the Act.

If the 3rd contract did go SPT and remained unprotected then that would be between 1x and 3x failure for tenancy3 and tenancy4 (if it did go SPT as I suspect rather than be continuous).

I can help you write a letter of claim if you contact be via the forum and I will take a look at each of the agreements to make sure all is done right.

Really all the Dereg Act 2015 did was to stop the foolish need for a Landlord to "re-protect" a deposit and serve new PI for any subsequent tenancies for what was substantially the same property to the same parties.

The Superstrike regulations confused the hell out of Landlords, even though the deposit was still held in schemes Landlords thought they had to pay it back and then have the tenant repay it again, when in fact the law deemed it as having been returned and repaid, so all that was required was the reserving of PI and Dereg Act 2015 stopped that PI re-serve obligation.

As this is a live case it is probably best you contact me via the forum to avoid prejudicing yourself as you have already provided dates that may identify you.

Instructions for contacting me are in post 663 above.

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Paul 23rd November, 2018 @ 09:43

@David

Thanks. Below the points you requested.

T1 was for 16 months: Jun 2014 to Sept 2015. Deposit for T1 was protected for the whole term of T1, plus PI was served.

Not entirely sure why LL did not ask for the deposit to be returned to her for T2. I think deposit was returned to me because the LL did not want to pay the agent £400 to change dates on a new AST, so the LL and I took the matter directly. Anyway, from Oct 2015 T1 went into a PST (i.e. T2).

T2 was a PST and lasted until Jan 2017 when the LL wanted a new AST, with increased rent and new deposit to be paid. So we got a new AST, for 24 months (T3).

T3 is the one where I paid a new, fresh deposit to the LL, and where the LL did not protect it, nor served us the PI. T3 ended in Oct 2018 as we gave notice to the LL.

Failure was on the LL to protect the new, fresh deposit for T3, so I wonder whether we can claim for the unprotected deposit for T3. You said that the Dereg Act 2015 applies if there is a continuous protection of the deposit, but in our case the deposit was returned, so there was no continuity, and I could claim up to 3x the deposit amount paid for T3.

Thanks

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David 23rd November, 2018 @ 18:49

@Paul

I did suggest not putting more information on your dates on here and to use the forum.

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Looper 13th December, 2018 @ 12:25

Hello,

Does lack of deposit protection and prescribed information also prevent a section 8 being issued, or only a section 21?

Can anyone confirm if there´s anything that does prevent a section 8 being issued? (which is on grounds of ground 12, breaching term of agreement).

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The Landlord Avatar
The Landlord 13th December, 2018 @ 12:33

@Looper
The deposit legislation doesn't affect your right to serve a section 8.

Nothing can prevent a landlord from serving a section 8, but of course, that doesn't mean your grounds for eviction will be agreed upon by court (if it gets that far).

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David 13th December, 2018 @ 13:26

@Looper

It is not supposed to but I have an ongoing case where the Judge suspended S8 to allow a Counter claim for deposit protection failure.

Had they had a Solicitor been present it would probably not have happened, Deposit Protection is a Statutory Sanction and cannot be offset so does not affect arrears (in this case), also it does not stop a S8 but these things happen. It is also possible that when you issue the notice they will issue the Part56 claim which is on the Part8 track and they then ask for them both to be heard together.

With S8 a Judge will always consider the hardship impact to the person being evicted, the term remaining on the agreement and break clauses. If for example you had a break clause at 6 months and you were 2 months into the tenancy I can't imagine you will be successful.

G12 is discretionary but also has to be pretty strong breach in my experience, usually needs several grounds if you wish to be successful.

A Judge would take a breach such as antisocial behaviour (assuming there are terms) more seriously than say not cleaning the property (assuming there are terms).

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Desperate Joanna 14th December, 2018 @ 16:08

Please help with two urgent questions:

Back in January, I sent my landlords the signed AST to countersign. They said they posted it back (I have text messages saying they did so) but I have never received it.
I paid rent and the deposit to them in accordance with the terms of the written AST, and also gave notice when I left, in accordance with the AST. Do I have an AST?

I have not left after 6 months and recently discovered that the landlords didn't protect my deposit. I want to sue them, but I am not sure I effectively have an AST, which I understand is necessary to claim compensation.

Also, as the AST has now ended, can I nevertheless use the notice details included in the AST? This is the address of just one of the two landlords, at the home address of the other one. If I send a letter before action there, will this be served properly on both? I don't know the address of the other one, and I am very concerned.

A desperate tenant,

Jo

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David 14th December, 2018 @ 19:56

@Desperate Joanna

I presume you live in an self contained property or HMO and were not a Lodger.

If so, then regardless of whether your Landlord gave you an AST you have a legal tenancy, if you or they have a copy of the proposed tenancy then the terms of said tenancy apply, otherwise an type of AST called a Statutory Periodic Tenancy is created by Law.

The obligation to protect a deposit is determined by taking a deposit in connection with an AST, so the liability was created.

I would be happy to help you bring the claim or reach a settlement with your Landlords.

If you have a copy of the AST you can seek sanctions for up to 3x the deposit for it and the second tenancy that was created when the first one expired.

I can help you get the address of the Landlords.

It is probably best not to discuss your live case further on an open forum.

If you send me a PM via the forum I can give you more advice about how to proceed.

The details of how to contact me via the forum are above in post 663

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David 20th December, 2018 @ 14:12

Hi

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

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

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

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

Thanks, David

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David 20th December, 2018 @ 22:50

Hi David

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

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

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

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

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

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

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

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

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

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

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