Tenancy Deposit Scheme

pcwilkins

Hi all

I've put this question to the experts at Landlordzone.co.uk but thought someone here might have some words of wisdom too.

The story so far:
1) Moved into property 1st June 2005 on 12 month AST, paying 1.5 month rent as deposit.
2) Renewed agreement (i.e. signed new agreement) starting 1st June 2006 for another 12 months.
3) Renewed again (again signing new agreement) 1st June 2007 for another 6 months. New agreement is still an AST.

According to http://england.shelter.org.uk/advice...ipLive-29663-3 and a few other sites, if an agreement is renewed (i.e. new agreement signed) after 6th April, then the initial deposit must be protected. We heard nothing from L so wrote to ask if our deposit was protected. Had no reply so wrote again. Have had letter this morning saying something along the lines of

"Because you started renting with us before 6th April 2007, TDS does not apply."

Am I right in thinking this is incorrect? I have looked at the Housing Act 2004 but it does not mention renewals specifically. However I found this Q&A on the communities.gov.uk site:

Q. 46 What happens if the tenant has a tenancy agreement that was taken out before 6 April 2007 but he continues occupying the property after the end of that tenancy?

If the tenant decides to remain in his existing rented property beyond the initial fixed term of 6 months, how the deposit is treated will depend on how the tenancy is continued:

For a statutory periodic tenancy – i.e. the tenancy continues with no new agreement – TDP will not apply, as no new AST will have been created.

For a replacement / renewal tenancy - This is a new AST and so TDP will apply. The deposit previously paid under the earlier tenancy is repayable to the tenant at the end of that tenancy, so it should be returned to the tenant. Alternatively, if the landlord wishes to continue to hold it as security in respect of the new tenancy it must be protected under scheme.

Now I am dithering between trying to get L to protect deposit by writing to him again, or just applying for a court order which would force him to protect it. The advantage of the first option is no court proceedings and hopefully no hard feelings. The advantage of the second is (if I am right in thinking it should be protected) L would be required to pay us 3x deposit as a penalty, and protect the deposit. 3x deposit works out to about £2.5k --- not insignificant!!!

Any advice?

Peter

silvercar

Once papers are served chances are the landlord will sort the deposit out before it came to court, so you would have wasted the court costs and upset the landlord and got nothing in return. Having upset the landlord the chances are that your tenancy will not be renewed again, are you ready to move?

pcwilkins

silvercar wrote: »

Once papers are served chances are the landlord will sort the deposit out before it came to court

The deposit has to be protected within 14 days of agreement start date. Even if L "sorts it out" now, he is still in breach of the law. In any case I'm not sure of the court procedure --- the exact term is that we should "obtain a court order". Don't know if this is the same as serving papers.

so you would have wasted the court costs and upset the landlord and got nothing in return. Having upset the landlord the chances are that your tenancy will not be renewed again, are you ready to move?

For £2.5k it might be worth moving! We are thinking of it anyway.

Thanks for the tips,

Peter

dnwilliams

What happens if the tenant has a tenancy agreement that was taken out before 6 April 2007 but he continues occupying the property after the end of that tenancy?
If the tenant decides to remain in his existing rented property beyond the initial fixed term of 6 months, how the deposit is treated will depend on how the tenancy is continued:

For a statutory periodic tenancy – i.e. the tenancy continues with no new agreement – TDP will not apply, as no new AST will have been created.

For a replacement / renewal tenancy 2 This is a new AST and so TDP will apply. The deposit previously paid under the earlier tenancy is repayable to the tenant at the end of that tenancy, so it should be returned to the tenant. Alternatively, if the landlord wishes to continue to hold it as security in respect of the new tenancy it must be protected under scheme.

pcwilkins

dnwilliams, so you think the deposit should definately be protected?

dnwilliams

Here's the link

http://www.communities.gov.uk/index.asp?id=1163536

seems pretty clear cut to me.

rosysparkle

If the agreement you signed commencing 1st June 07 is a fixed term (check the wording carefully) then your deposit should be protected and the landlord is wrong.

From The Dispute Service website:

Many people have asked what is the situation if, at the end of an AST which started before 6 April 2007, the tenant wants to stay on
There are two options:
1. The tenancy becomes periodic (e.g. carries on from month to month subject to notice) - absolutely no paperwork is required - and the only lawful way in which the rent can be increased under such a periodic tenancy e.g. by way of a section 13 notice, which is a prescribed notice.
2. A "replacement" tenancy is created. If tenancy does not go periodic when the fixed ter m expires i.e. a further fixed term is agreed between the parties. Whilst some in the industry might talk of a Memorandum of Extension (or use other words to describe paperwork) to facilitate this process, the Housing Act 1988 as amended by the 1996 Act solely refers to a "replacement" tenancy. Any such paperwork, no matter what it is called, therefore creates a "replacement" tenancy.
Reading the extract from the legislation there seems absolutely no question that a "replacement" tenancy is a new tenancy and thus the deposit is caught under the TDP legislation and, at that time, must be protected. (with thanks to NAEA)

pcwilkins

Thanks to you all. I'll think about it! Might just write a stiff letter and see what happens...