When and how to give S21 notice, dates etc?

puddy

I am asking this query on behalf of a friend, who is asking about it on behalf of her boyfriend (who doesnt really understand the importance of getting it right)

I understand that this has been covered on here but can people comment on the following scenario:

Property let on 8th December 09 to a couple.

Couple later start getting LHA and have a baby

Tenancy goes onto rolling periodic tenancy from 6 months mark (8th June 10)

Couple now say they cannot afford the rent as LHA is not paying the full amount. This seems to be incorrect from the information the landlord received from benefits, but this is what the tenant said. The rent is £580pcm for a one bed flat in Surrey.

Landlord therefore wants to give 2 months notice, however, when LHA started the couple were strapped for cash and the tenants and landlord agreed that their deposit of £580 could be used for one of the months rent due to tenant having income problems etc. Hence, there is now no deposit, does this make any attempt to serve S21 notice invalid?

Couple want to be given notice, they cannot give notice (they say) because they want to be housed by the council. Obviously if they give notice, they will not be classed as 'homeless'.

When can the landlord give notice, he wanted to give it so that they move out 8th Oct, but we are now the 10th August today, so do they have to wait until 8th September for a date of 8th November?

Can he give notice with no deposit? I wondered if it was worth him putting £10 or so into a TDS so that there is officially a deposit there?

I feel that the couple will not just move out at the date of notice anyway, as they will no doubt be advised by the council to stay put until eviction, is this the case?

Can notice be given on the basis the landlord wants the property back? the landlord wants to give notice because the tenants are not paying the full rent now, they say they can only afford £550 (or something like that, not too sure on the amount). Therefore, they will not be 8 weeks in arrears if and when any court action needs to be taken.

I would be really grateful for help. I have advised the landlord to get advice from shelter and the landlord forum but thought I would see what you all say first

Thanks

N79

Your post is unclear but this is my understanding.

Their was a deposit at the start of the tenancy. It was not protected. At some point the LL has said that the Ts could have a payment break of one month using the existing deposit to cover the rent.

It was not the LL's decision to allow the deposit to be used to pay the rent. It should have been protected, which would have stopped the LL agreeing to this. It isnt and so until it is protected in full no S21 notice can be used.

If, in fact, there was never a deposit then S21 notice can be used but your dates are wrong as the tenancy periods of this tenancy end on the 7th of each month.

puddy

yes, sorry, it runs from the 8th to the 7th of each month

yes, the deposit was protected in one of the schemes but between them they agreed that the deposit could be used for that months rent (i was told anyway)

so could the landlord just put £10 or so in the scheme and then there is a protected deposit

can he serve the notice for posession after 7th october or has he missed the date now, it will be 7th november now?

nikki_angel

Well the deposit still IS protected then surely?? I don't think that they could release the deposit before the end of the tenancy but happy to be proved wrong. It would be November now.

puddy

yes, i did wonder that myself but thats what i was told, the deposit was taken out of the scheme to pay for the missing months rent, both the landlord and tenant agreed it. i told him then to get it put in writing, otherwise the deposit looks like its missing.

so the notice can be given now, but seeking posession for after 7th november?

what about the tenants moving, is it likely that they will wait for an eviction order? i think it is, but dont want to be bringer of doom to my friend if this is not the case

if there is a later need to seek a posession order, then can he do this having removed the protected deposit??

theartfullodger

I think because of muddle over deposit a judge would find that it wasn't handled correctly & thus any s21 notice would be invalid...

See..Housing Act 2004 Sections 213- 215 ...

213 Requirements relating to tenancy deposits

(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.
(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).
(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.
(4) For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.
(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to—
(a) the authorised scheme applying to the deposit,
(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and
(c) the operation of provisions of this Chapter in relation to the deposit,
as may be prescribed.
(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.
(7) No person may, in connection with a shorthold tenancy, require a deposit which consists of property other than money.
(8) In subsection (7) “deposit” means a transfer of property intended to be held (by the landlord or otherwise) as security for—
(a) the performance of any obligations of the tenant, or
(b) the discharge of any liability of his,
arising under or in connection with the tenancy.
(9) The provisions of this section apply despite any agreement to the contrary.
(10) In this section—

• “prescribed” means prescribed by an order made by the appropriate national authority;
• “property” means moveable property;
• “relevant person” means any person who, in accordance with arrangements made with the tenant, paid the deposit on behalf of the tenant.

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).



215 Sanctions for non-compliance

(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—
(a) the deposit is not being held in accordance with an authorised scheme, or
(b) the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.
(2) If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.
(3) If any deposit given in connection with a shorthold tenancy could not be lawfully required as a result of section 213(7), no section 21 notice may be given in relation to the tenancy until such time as the property in question is returned to the person by whom it was given as a deposit.
(4) In subsection (3) “deposit” has the meaning given by section 213(8).
(5) In this section a “section 21 notice” means a notice under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

If your mate (I assume the Landlord) doesn't understand the need to get things right he's probably got other things wrong also... (Gas safety cert, insurance, declaring for tax...)

Oh dear...

Cheers!

Lodger

Wee_Willy_Harris

The tenants should seek advice URGENTLY as what they are proposing is doomed to failure, which may have a knock on effect with your friendly LL.

tbs624

puddy wrote: »

I would be really grateful for help. I have advised the landlord to get advice from shelter and the landlord forum but thought I would see what you all say first

Thanks

You are obviously a good friend who wants to help but please don't advise LLs to take up Shelter's valuable phone slots - they are a charity whose role is to help tenants and those in need of housing, not prop up LLs who are, after all, running a business.

I agree with N79 & Artful - if a deposit was paid then it should have been scheme registered

puddy

the deposit was put in a scheme, i have just confirmed with my friend that they allowed the withdrawal of it??

puddy

theartfullodger wrote: »

I think because of muddle over deposit a judge would find that it wasn't handled correctly & thus any s21 notice would be invalid...

See..Housing Act 2004 Sections 213- 215 ...
If your mate (I assume the Landlord) doesn't understand the need to get things right he's probably got other things wrong also... (Gas safety cert, insurance, declaring for tax...)

Oh dear...

Cheers!

Lodger

im not sure! i havent asked, although i wouldnt approve if it wasnt done right. he has let it because he couldnt afford the mortgage and moved in with my friend. i think he just needs to sell it, its a depreciating liability and he cant afford things like this. he's not very good at getting information and organising stuff so its putting strain on my friend to try and get it right.

theartfullodger

Re

I have advised the landlord to get advice from shelter

thanks tbs, I missed that bit...

Shelter don't help Landlords (other than by giving any tenant the correct advice...which the Landlord would of course welcome .. aye, right). However their website does lay out the law & rules very sensible and in an unbiased way....
http://england.shelter.org.uk/get_advice/renting_and_leasehold/private_tenancies/assured_shorthold_tenancies

Your "friend" the Landlord sounds like he needs professional help, both as a Landlord & a person: He also needs to face fact that he must step up to his responsibilities as a Landlord & is running a business....

Cheers!

Lodger