Section 21 notice problems

RabbitMad

tbs624 wrote: »

The law still needs to be clarified on this one - there just haven't been enough cases through the courts yet.

My interpretation of the situation is this:

if a Fixed Term AST expires then it has ended, finished, it no longer exists (this parrot is deceased). When a new AST is signed for a further FT - this is a new contract, not an amendment or an update of the old one which ...erm...no longer exists so is not capable of being amended or updated.

The requirement to pay a deposit forms part of that new contract - it is merely for administrative purposes that it remains in the LL's possession, rather than being repaid to the tenant and received anew by the LL.

I know the argument for protecting the deposit on renewals is that it is implicit that the deposit has been repaid and then imediately re-received by the LL.

So another interpretation could legitimately be that the deposit paid in 2006 is for the Old AST and no deposit has been paid for the new AST. This would obviously leave the LL open to being sued by T for the return of the old deposit.

I think in the one case I read the judge agreed that the deposit paid prior to 2007 did not need protecting on issuing of a new AST as it hadn't been "received" since April 2007.

I think this is the big grey area and the majority of opinion from legal people I have read seems to agree with the judge.

silvercar

Originally Posted by moneysavinmonkey
Silvercar - please can you provide a link to write up of the case you mention whereby a invalid section 21 is later is made to be valid by protection of the deposit after the date the notice is served. thanks.

Read it here, but the forum is down at the moment so I can't find the exact thread:

http://www.landlordzone.co.uk/forums/forumdisplay.php?f=3

silvercar

Until that is up and running try here and scroll down to a post by "Planner" on 18/4/08. It is too long to cut and paste unless people can't get to the link.

http://www.consumeractiongroup.co.uk/forum/residential-commercial-lettings/138758-tenancy-deposit-case-section.html

Relevent bit:

"The Housing Act 2004 says that a deposit falls under the new legislation if it is paid and received after April 6th 2007. The judge said that she had to consider whether the fact that the deposit was already in the defendant's possession and that it was agreed it would be a new deposit for the new 12 month AST, it was not in the traditional sense paid by me and received by the LL. She ruled that the deposit was paid by me and received by the LL in April 2006, hence the deposit had to requirement for protection. She said that that was her personal interpretation of paid and received and that the HA 2004 was not detailed as to the definition of both. She said that she may be wrong but without the guidance of a higher court ruling and with regret that that was her stance."
"

moneysavinmonkey

ok - some confusion here then... there is two issues:

1) is the deposit required to be protected?
if the answer is yes, a second question arises
2) is the Section 21 notice valid?


Silvercar has stated....

There have been cases where the judge has accepted that the deposit is protected by the court date so the S21 stands.

so in these 'cases' the deposit was required to be protected, but was done only in time for the court date. In this case the the S21 should not stand.

This is not the circumstances of the case you have linked to which is concerning a case where the deposit was not required to be protected,
in which case the S21 sanctions don't apply.

The landlordzone forum seems to be up now, so perhaps you could link to the cases you mentioned in the post I have quoted. Thank you.

tbs624

RabbitMad wrote: »

I know the argument for protecting the deposit on renewals is that it is implicit that the deposit has been repaid and then imediately re-received by the LL.

So another interpretation could legitimately be that the deposit paid in 2006 is for the Old AST and no deposit has been paid for the new AST. This would obviously leave the LL open to being sued by T for the return of the old deposit.

I think in the one case I read the judge agreed that the deposit paid prior to 2007 did not need protecting on issuing of a new AST as it hadn't been "received" since April 2007.

I think this is the big grey area and the majority of opinion from legal people I have read seems to agree with the judge.

I'd agree with you that it is a "grey" area: am also interested in your definition of the "majority of opinion"?

The intention of the law was to safeguard tenants deposits.

The wording of much new legislation is open to interpretation that runs contrary to that which was intended.

The straightforward way to deal with this IMO is for the law to be amended to say that where a deposit forms an integral part of any tenancy agreement signed after 6 April 2007 then the deposit should be registered. LLs could of course still avoid registering by allowing contracts to simply become periodic but given that most prefer to have a "good" tenant signed up for a further 6-12 months they'd probably just get on with issuing the new AST agreement and register the deposit.

Other "grey" areas of the legislation obviously include the use of the phrase "within 14 days" in which to meet he obligations to register a deposit and provide "prescribed info" but then allowing a LL to escape sanction provided those obligations are fulfilled prior to a court hearing.

There will probably be a number of specific test cases within the next year, supported by community lawyers, Shelter etc.

Tenants (and LLs) should continue to highlight their personal experience of the lack of effectiveness of this legislation via their own MP, the Housing Minister and the Shadow Housing Minister with copies to Shelter and CAB campaigns officers.A few letters in the broadsheets would help too.

silvercar

so in these 'cases' the deposit was required to be protected, but was done only in time for the court date. In this case the the S21 should not stand.

This is not the circumstances of the case you have linked to which is concerning a case where the deposit was not required to be protected,
in which case the S21 sanctions don't apply.

The landlordzone forum seems to be up now, so perhaps you could link to the cases you mentioned in the post I have quoted. Thank you.

http://www.landlordzone.co.uk/forums/showthread.php?t=10686

moneysavinmonkey

hmm. i didn't read through that whole thread silvercar but it didn't seem to be about section 21 sanctions. Did you mean to say that the notice can be upheld if the deposit is protected after it is issued?

All info on TDS cases is interesting to me though!

Szlazo

Just thought I would let you know what happened. the judge upheld the section 21 notice. He dismissed the appeal by the tennant on the grounds that the deposit was received prior to the changes in legislation and had been held in a separate, interest bearing account. he also confirmed that the date that the tennants had to vacate the property.