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Deposit and Section 8 / Section 21
benjus
Posts: 5,433 Forumite
Hi all,
After a long trouble-free tenancy I'm running into some issues with my tenants and wondering if anyone can give any advice.
Originally the tenants (let's call them Dave and Alison) and their family moved in as Housing Benefit tenants, which I was happy to accept. They would sometimes pay the rent late but never failed to pay for a given month, and were generally good tenants, so I renewed their tenancy. I took a deposit which was registered under Dave's name as lead tenant.
Earlier this year I sent them a new tenancy agreement to renew for another year, but they told me that they were splitting up and Alison would like to stay on while Dave would move out. Even though there was only a couple of weeks left on the tenancy they wanted to do it asap so I prepared a Deed of Assignment of Tenancy to remove Dave and a new tenancy agreement for 2013/2014 in Alison's name only. These were duly signed and returned to me.
However, Alison has not paid any rent at all yet. She has spun a whole string of excuses: new Housing Benefit claim taking a long time, when it was finally approved the cheque took ages to clear, etc etc. Today I called the council HB department and was told there there is no active HB claim for the property, so it appears that she has just been lying to me.
The deposit is still in Dave's name, but he has not requested its return. I intended to transfer it into Alison's name after she settled up for the rent (I believe that to do this I would have to release the deposit to Dave and request a new deposit from Alison), but obviously that hasn't happened and releasing the deposit would mean waving goodbye to that as well as the 3 months' rent I'm owed. However, is this my only choice if I'm going to be able to serve notices on Alison without getting into problems myself?
After a long trouble-free tenancy I'm running into some issues with my tenants and wondering if anyone can give any advice.
Originally the tenants (let's call them Dave and Alison) and their family moved in as Housing Benefit tenants, which I was happy to accept. They would sometimes pay the rent late but never failed to pay for a given month, and were generally good tenants, so I renewed their tenancy. I took a deposit which was registered under Dave's name as lead tenant.
Earlier this year I sent them a new tenancy agreement to renew for another year, but they told me that they were splitting up and Alison would like to stay on while Dave would move out. Even though there was only a couple of weeks left on the tenancy they wanted to do it asap so I prepared a Deed of Assignment of Tenancy to remove Dave and a new tenancy agreement for 2013/2014 in Alison's name only. These were duly signed and returned to me.
However, Alison has not paid any rent at all yet. She has spun a whole string of excuses: new Housing Benefit claim taking a long time, when it was finally approved the cheque took ages to clear, etc etc. Today I called the council HB department and was told there there is no active HB claim for the property, so it appears that she has just been lying to me.
The deposit is still in Dave's name, but he has not requested its return. I intended to transfer it into Alison's name after she settled up for the rent (I believe that to do this I would have to release the deposit to Dave and request a new deposit from Alison), but obviously that hasn't happened and releasing the deposit would mean waving goodbye to that as well as the 3 months' rent I'm owed. However, is this my only choice if I'm going to be able to serve notices on Alison without getting into problems myself?
Let's settle this like gentlemen: armed with heavy sticks
On a rotating plate, with spikes like Flash Gordon
And you're Peter Duncan; I gave you fair warning
On a rotating plate, with spikes like Flash Gordon
And you're Peter Duncan; I gave you fair warning
0
Comments
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Why did you not just do another tenancy agreement in the new tenants name?
You have made things more complicated than you needed to.
Do nothing with the original deposit at this point in time.
Serve a Sec 8(Grounds 8, 10&11) to start with. Now.Well life is harsh, hug me don't reject me.0 -
I assume that the deposit is held by a custody based scheme, right?
Along with the Deed of Assignment, you should have unprotected the deposit, refunded it to Dave, get a new one from Alice and protect it again with her name as the tenant (right now technically you have a deposit for someone who is not a tenant anymore).
I am afraid that, since you say that you are owed 3 months rent already, you missed the 30 days deadline to protect the deposit in Alice's name and now you are vulnerable to a non/late protection claim by Alice (if she knows about this). Also, as you haven't protected the deposit, you cannot issue a s21 notice either before you return it.
Which is a moot point anyway at the moment, because probably the current tenancy is still at it's fixed term period. Unless the new, assigned tenancy started as a periodic one? I am not sure about this one.
What you can do, is issue a s8 notice for rent arrears (since she's past 2 months now) and fix the deposit problem. Good luck btw.You wanna hear about my new obsession?
I'm riding high upon a deep recession...0 -
Sorry if I wasn't clear - the new tenancy agreement started in March in Alison's name only.
What do you mean by sorting out the deposit? Returning it to Dave and forgetting about having one? Alison hasn't given me one and I doubt she ever will now.Let's settle this like gentlemen: armed with heavy sticks
On a rotating plate, with spikes like Flash Gordon
And you're Peter Duncan; I gave you fair warning0 -
New tenancy. Therefore the deposit for the old tenancy (now ended) must be returned.Sorry if I wasn't clear - the new tenancy agreement started in March in Alison's name only.
What do you mean by sorting out the deposit? Returning it to Dave and forgetting about having one? Alison hasn't given me one and I doubt she ever will now.
Whether you choose (should have chosen) to take a new deposit from Alison for the new tenancy was a decision up to you.
But since you didn't:
a) you must return Dave's deposit
b) you can evict Alison via a S8 if enough rent arreas
c) you can claim Alison's missing rent via the courts (but obviously not via deposit as you did not take one)
d) you can evict Alison via a S21 once the fixed term of her new tenancy is up (whenever that is)0 -
Does your tenancy agreement state that it can be brought to and end by using Sec 8 of the 1988 Housing Act(or words to that effect)?
I do not understand what the deed of assignment was for.
Do not return the deposit you are holding.Well life is harsh, hug me don't reject me.0 -
Do not return the deposit you are holding.
Isn't this advice incorrect? Surely the OP HAS to return the deposit to Dave (who has left the tenacy) and cannot keep or use it against rent arrears or damages as it isn't Alison's deposit on her new tenancy alone.Spam Reporter Extraordinaire
A star from Sue-UU is like a ray of sunshine on a cloudy day!
:staradmin:staradmin:staradmin0 -
I agree the Deed was pointless.Does your tenancy agreement state that it can be brought to and end by using Sec 8 of the 1988 Housing Act(or words to that effect)?
I do not understand what the deed of assignment was for.
Do not return the deposit you are holding.
The advice to keep the deposit is like saying "do not reduce your speed from 100 miles per hour"; You may well not pass a speed trap or police car, and get away with it, but that does not make it legal.
the deposit relates to the previous tenancy, not this one. Whether 'Dave' will realise this or not we do not know at this stage.0 -
Thanks all for the advice so far. I shouldn't have mentioned the Deed - it's not really relevant to this question. I sent it to them about 2 weeks before the end of the previous tenancy because Alison wanted to get Dave out of the house asap and Dave didn't want to leave without something to prove that he was no longer a tenant.
I'd better get Dave's deposit back to him then...
I'm more concerned about getting possession with minimum hassle than claiming missing rent, but I'd have to wait another 5 months to serve an S21.Let's settle this like gentlemen: armed with heavy sticks
On a rotating plate, with spikes like Flash Gordon
And you're Peter Duncan; I gave you fair warning0 -
How does that question actually help the OP at this point in time? He cannot undo what he has already done.Why did you not just do another tenancy agreement in the new tenants name?
.
Poor suggestion. The deposit, as G_M and another poster say, relates to the previous tenancy, not the current one and should therefore be released by the LL once any deductions relating to *that* tenancy have been agreedDo nothing with the original deposit at this point in time.
Agreed.Serve a Sec 8(Grounds 8, 10&11) to start with. Now.
OP - have you already sent a formal Rent Statement to Alison, requesting that she brings her rent payments up to date?
Is she aware that you know she has not made a claim for HB/LHA?0 -
Isn't this advice incorrect? Surely the OP HAS to return the deposit to Dave (who has left the tenacy) and cannot keep or use it against rent arrears or damages as it isn't Alison's deposit on her new tenancy alone.
I previously said:
This is the point I am trying to make clear.Do nothing with the original deposit at this point in time.
The deposit has got nothing to do with this tenancy. Returning it at this time is being done for what reason?
The landlord cannot "keep" it, as he doesn't hold it. Dave can request for it's return at anytime of day or night. The landlord isn't witholding it.How does that question actually help the OP at this point in time? He cannot undo what he has already done.
.
Who said it was a question to help the OP?Well life is harsh, hug me don't reject me.0
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