Section 21 Notice but Deposit not protected

clutton_2 · 12 January 2008 at 11:44AM

""I have had several possession cases thrown out when the tenant has not been notified of the deposit scheme used so this has been tested in court""

teeni sorry to hear this - can you give us more details please ? did you not notify the tenant in time, or did you not notify at all, or did you not use a scheme at all ?

PM me if you'd rather - m any thanks

teeni · 12 January 2008 at 12:55PM

MissMoneypenny wrote: »

The details have to be given within the fourteen days.
"(6)
The information required by subsection (5) must be given to the tenant and any relevant person—
(a) in the prescribed form or in a form substantially to the same effect, and
(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord."
http://www.england-legislation.hmso.gov.uk/acts/acts2004/ukpga_20040034_en_19
Section 213 (6)

sorry my mistake not reading what i had written properly, i meant before the end of the 14 day period.

end of a long day need to be more careful.
cheers

neverdespairgirl · 12 January 2008 at 1:18PM

clutton wrote: »

""I have had several possession cases thrown out when the tenant has not been notified of the deposit scheme used so this has been tested in court""

teeni sorry to hear this - can you give us more details please ? did you not notify the tenant in time, or did you not notify at all, or did you not use a scheme at all ?

PM me if you'd rather - m any thanks

This is my experience too - OH deals with Landlord and Tenant law, and courts are chucking out cases where the tenant wasn't notified.

MissMoneypenny · 12 January 2008 at 2:06PM

silvercar wrote: »

Just because you have not received notice that the deposit is protected it doesn't mean that it hasn't been protected.

One of the 3 schemes (at least) got into a big admin mess and failed to notify tenants, it then decided to push the obligation to notify tenants to the landlord, so there could well be deposits protected without tenant notification.

Just pondering, if just the LL saying it is protected is enough in the eyes of the law, or whether full details as required, have to be given within the 14 days?

Interestingly, I decided to rent last July when I moved areas and I wasn't notified within the 14 days. Yet when I phoned the LA and informed them of this, they were able to immediately phone the relevant deposit scheme and within minutes had phoned me back with the reference number and all the details required. So it was possible for LLs to give this information to their tennat within the 14 days if they could be bothered to make a quick phone call - and the law clearly says it is the LLs responsibilty to give these details to the tennant (and whomever paid the deposit) within the 14 days as required.

teeni · 12 January 2008 at 3:05PM

clutton wrote: »

""I have had several possession cases thrown out when the tenant has not been notified of the deposit scheme used so this has been tested in court""

teeni sorry to hear this - can you give us more details please ? did you not notify the tenant in time, or did you not notify at all, or did you not use a scheme at all ?

PM me if you'd rather - m any thanks

Have pm'd you

MissMoneypenny · 12 January 2008 at 7:30PM

MissMoneypenny wrote: »

I read that too, on a solicitors site. I thought I had bookmarked it, but can't find it now. They also said that any section 21 served when the tenancy was signed, would not be legally enforceable, as the deposit wouldn't have been protected at that point.

Sorry to answer myself, but I have found the link I was talking about:-

"Catching up - s.21 and tenants’ deposits A very interesting article by Francis Davey in September’s Legal Action about the Housing Act 2004. The whole piece rewards a read, but two bits caught my eye. We don’t do that many private tenancy possession defences, relatively speaking, so these were new to me.

Where a shorthold assured tenancy started after 6 April 2007, i) the deposit must be held by the landlord in one of the approved tenancy deposit schemes, within 14 days of receiving it and ii) the landlord is to give prescribed information about this to the tenant.
Now, where the landlord fails to do either or both of these, the landlord may not give a HA 1988 s.21 Notice. Any putative notice served is invalid, even if the landlord then later complies with the scheme. Moreover, any s.21 Notice signed at the beginning of the tenancy, or with the tenancy agreement (as very many are) is invalid, as the deposit is not (yet) held in compliance with the scheme and the requisite information not (yet) provided to the tenant."
http://nearlylegal.co.uk/blog/index.php?s=shorthold

An interesting bit further down that same article, about LLs who won't do their repairs, who then want the tenant out when they have complained about the LL to the relevant authority.

Tori_Bellatrix · 12 January 2008 at 10:32PM

MissMoneypenny wrote: »

Sorry to answer myself, but I have found the link I was talking about:-

"Catching up - s.21 and tenants’ deposits A very interesting article by Francis Davey in September’s Legal Action about the Housing Act 2004. The whole piece rewards a read, but two bits caught my eye. We don’t do that many private tenancy possession defences, relatively speaking, so these were new to me.

Where a shorthold assured tenancy started after 6 April 2007, i) the deposit must be held by the landlord in one of the approved tenancy deposit schemes, within 14 days of receiving it and ii) the landlord is to give prescribed information about this to the tenant.
Now, where the landlord fails to do either or both of these, the landlord may not give a HA 1988 s.21 Notice. Any putative notice served is invalid, even if the landlord then later complies with the scheme. Moreover, any s.21 Notice signed at the beginning of the tenancy, or with the tenancy agreement (as very many are) is invalid, as the deposit is not (yet) held in compliance with the scheme and the requisite information not (yet) provided to the tenant."
http://nearlylegal.co.uk/blog/index.php?s=shorthold

An interesting bit further down that same article, about LLs who won't do their repairs, who then want the tenant out when they have complained about the LL to the relevant authority.

Reading through the first link, I notice this quote; 'Sadly this only applies to deposits paid after 6 April, so older tenancies, even where renewed after that date, will not fall under it unless a fresh deposit is paid'.

Isn't this incorrect - I thought it was the date that a new AST was signed regardless of when the deposit was paid

MissMoneypenny · 12 January 2008 at 10:57PM

Tori_Bellatrix wrote: »

Reading through the first link, I notice this quote; 'Sadly this only applies to deposits paid after 6 April, so older tenancies, even where renewed after that date, will not fall under it unless a fresh deposit is paid'.

Isn't this incorrect - I thought it was the date that a new AST was signed regardless of when the deposit was paid

Unfortunately, I think it might be correct.:eek:

From Shelters site:-

"What if I paid a deposit before 6 April 2007? If your tenancy started before 6 April 2007, then you will not normally be protected by the scheme. However, if you have been given a new tenancy agreement since that date, you should get advice. In this situation, the law does not specifically say that your landlord has to protect your deposit, but the Government has suggested that they should do so. An adviser may be able to help you come to an agreement with your landlord."
http://england.shelter.org.uk/advice/advice-7507.cfm?r=gaw&WT.srch=1&gclid=COfh0InX8ZACFRlWMAodXCHBsQ#wipLive-34145-3

Tori_Bellatrix · 12 January 2008 at 11:07PM

MissMoneypenny wrote: »

Unfortunately, I think it might be correct.:eek:

From Shelters site:-

"What if I paid a deposit before 6 April 2007? If your tenancy started before 6 April 2007, then you will not normally be protected by the scheme. However, if you have been given a new tenancy agreement since that date, you should get advice. In this situation, the law does not specifically say that your landlord has to protect your deposit, but the Government has suggested that they should do so. An adviser may be able to help you come to an agreement with your landlord."
http://england.shelter.org.uk/advice/advice-7507.cfm?r=gaw&WT.srch=1&gclid=COfh0InX8ZACFRlWMAodXCHBsQ#wipLive-34145-3

Hmmmm ... That's very interesting and I'm sure that wording has changed recently. I remember speaking to an adviser back in early December and she was quite categoric in her view that a deposit paid prior to 1/04/07 should be protected if a new AST has been signed.

I don't know what to think now .... :doh:

clutton_2 · 13 January 2008 at 12:22AM

i have protected older deposits on the signature of a new AST subsequent to april last year. i;d rather be safe than sorry.

Section 21 Notice but Deposit not protected

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