Made a mess of being a Landlord

Imp

N79 wrote: »

I do not condone what you have done but do not follow this.

If you can, immediately register the deposit with any scheme but the DPS as that way you will not have breached the schemes initial conditions. This will allow you to site Draycott v Hannells to probably avoid the 3x penalty.

Sorry if I got it wrong. I knew there was one scheme which allowed the deposit to be registered after the tenancy had started, and I thought it was the DPS.

The initial conditions for the TDS include the use of certain clauses within the tenancy agreement, so it is difficult to comply after the tenancy has started.

If the OP can't protect the deposit, then the only other course of action is to return the deposit in full.

Imp

potzer wrote: »

I have also contacted their guarantor, to inform them of owed monies, in a hope that she will pay up save me going to court.

I think it is about time you mentally start to write off the deposit, last month's rent and the cost of replacing your kitchen doors.

potzer

So if I'm unable to get my last months rent and repairs and have to pay out the deposit, I'll be £2500+ worse off?

Will I still be liable for 3 x deposit for non-protection?

Surely as the guarantor has signed up, she is liable for the owed money now?

pyueck

It sounds like you want it all? You have treated the tenant very badly for two reasons. Firstly you didn't protect their deposit and secondly you served them an invalid section 21. This is because a section 21 can only be served when the the deposit is protected.

With regard to the charges for damages, unfortunately legally you won't be able to with-hold their deposit as you held their deposit illegally and therefore can't claim money off it. Also the tenants are legally 100% right in thinking that you now owe them 3x their deposit as you did not protect it. As they have now moved out you are too late to protect their money.

You may also face being sued for illegal eviction as you told them to leave without a valid section 21. (A section 21 is also a non-blame eviction, so I am not sure why you used this rather than a section 8). They could easily sue you for all the costs of being illegally evicted, such as the cost of finding a new place to live, any cancellation charges as a result of the eviction, damages for inconvencience and if their new place has a higher rent they could even sue you for the difference between the place you evicted them from and their new place.

My advice is give them their deposit back fast and hope they move on. If you don't they could easily sue you for not protecting the deposit plus damages for illegal eviction.

As the previous poster said, lesson learnt!!!!

haras_nosirrah

Are you able to give the tennants a valid s21 if the deposit isn't protected?

I think that the tennants have you over a barrell here and they know it. Tennants are much more up to date on their rights and if they had posted here saying 'my landlord is trying to charge me and he didn't protect my deposit' the majority of posters would be telling them to refuse to move as the s21 isn't valid, stop paying rent and also to sue for 3x deposit.

Realistically I think you are going to have to give up on this one and let them off the hook - a big unfortunate learning curve but if you don't back down they will take you to court for the 3x penalty and with legal fees it would cost you considerably more then you will lose this time.

Obviously if the deposit scheme let you register you may be able to get out of it but I don't know how likely that is.

BitterAndTwisted

The three-times deposit penalty is mostly theoretical and the threat of trying to claim it in court is mostly used by tenants to get their landlords to sit up and take notice, it is not guaranteed by any means.

The best thing to do now is to have the deposit lodged retrospectively and demand any monies owed from the guarantor. If your ex-tenants dispute any deductions it will not be returned to them until after arbitration. I'd go all the way with this one, a deposit is not paid in lieu of the last month's rent, despite many tenants thinking that it is or should be.

Imp

potzer wrote: »

So if I'm unable to get my last months rent and repairs and have to pay out the deposit, I'll be £2500+ worse off?

Will I still be liable for 3 x deposit for non-protection?

Surely as the guarantor has signed up, she is liable for the owed money now?

As you are in a pickle relating to the Housing Act 2004, I take it you have now read the relevant sections. For everyone else's benefit

214 Proceedings relating to tenancy deposits
(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—
(a) that the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or
(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.
(2) Subsections (3) and (4) apply if on such an application the court—
(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or
(b) is not satisfied that the deposit is being held in accordance with an authorised scheme,
as the case may be.
(3) The court must, as it thinks fit, either—
(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or
(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,
within the period of 14 days beginning with the date of the making of the order.
(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.
(5) Where any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), the property in question is recoverable from the person holding it by the person by whom it was given as a deposit.
(6) In subsection (5) “deposit” has the meaning given by section 213(8).

Reference the parts in bold, if you don't want to pay back 4 times the deposit, then you really have to make it so that the deposit no longer exists, by paying it back and hoping the tenants decide not to persue you.

potzer

I admit the deposit was an oversight on my behalf, the Section21 was given as I thought this would be the easiest method, I hadn't realised I'd forgotten to protect the deposit at that time, it was only going through my papers I'd realised I hadn't done this.

so where does this leave me for damage? surely i can go down the route of criminal damage?

haras_nosirrah

What damage have they done? Is it criminal and willful damage - ripping doors off deliberatly etc or is is that a handle has fallen off and therefore accidental damage?

potzer

hinges and handles snapped, kitchen flooring ripped when moving out furniture, stop taps on washing machine plumbing broken. drawers and shelving missing...