Tenancy Question

franklee

scrummy_mummy wrote: »

If.....she said taking breath with the whole SOD approach to landlording...you do serve a S21 at the time a tenancy begins, it must be done as follows:

1. It cannot be included with the Tenancy agreement...it must be a separate document as it must be in a prescribed format.
2. The Tenancy Agreement MUST be signed, dated and the time of signatures noted FIRST
3. The S21 can then be served, but you must annotate that the S21 was served AFTER the tenancy Agreement was signed for it to be legal.

Don't do this myself, but am aware how to do it 'properly' should I ever need to.

Which is why I'm surprised some of the experienced landlords on this forum put the S21 in the tenancy agreement, it's clearly wrong.

But you forget one thing, which is new since this new deposit system came in in April 2007. The S21 is not valid if served before the tenant has been informed of the details of the scheme their deposit is in. This makes the SoD S21 a little harder to slip past the tenant unnoticed, but only a bit depending on when the deposit is taken etc. There is still scope to serve the S21 early on in the tenancy as the deposit information should be given to the tenant within 14 days of the deposit being paid.

scrummy_mummy_2

franklee wrote: »

But you forget one thing, which is new since this new deposit system came in in April 2007. The S21 is not valid if served before the tenant has been informed of the details of the scheme their deposit is in. This makes the SoD S21 a little harder to slip past the tenant unnoticed, but only a bit depending on when the deposit is taken etc. There is still scope to serve the S21 early on in the tenancy as the deposit information should be given to the tenant within 14 days of the deposit being paid.

Interesting...to my knowledge (member of the NLA) the bit about not being able to serve the S21 BEFORE the details of the Deposit scheme being used has not been mentioned. Can you show me some references or where you have got this from please?...I've just checked the NLA Members site and the letting centre (usually a good reference source) and neither refer to this 'new requirement' and I have read nothing about it in all the guff surrounding the new desposit schems from TDS or DPS.

franklee

scrummy_mummy wrote: »

Interesting...to my knowledge (member of the NLA) the bit about not being able to serve the S21 BEFORE the details of the Deposit scheme being used has not been mentioned. Can you show me some references or where you have got this from please?...I've just checked the NLA Members site and the letting centre (usually a good reference source) and neither refer to this 'new requirement' and I have read nothing about it in all the guff surrounding the new desposit schems from TDS or DPS.

Well I've seen it around a lot (also heard it from Marveen Smith on moneybox), so to give an example:

http://www.depositprotection.com/Public/FAQs.aspx

Under the question:

"What happens if a deposit has not been protected?

Membership of a tenancy deposit scheme will be mandatory to all landlords who take a deposit. Those who take a deposit but don't join an accredited tenancy deposit protection scheme will face the following penalties for non-compliance:

a) Unable to use 'notice only' Currently, a landlord can regain possession of the property after the first six months of an AST, providing any fixed term has expired and the tenant has been given at least two months' written notice (under Section 21 of the Housing Act 1988). This right to repossession using the usual 'notice only grounds' will be lost if the deposit has not been safeguarded in an authorised scheme and the prescribed information passed onto the tenant within 14 days."

PS Just a small indication of how widespread this is, a quick straw poll of who is a SoD and who isn't from posts I happened to read (which isn't anywhere near all of the forum!), information comes from both tenants and landlords:

Landlords/agents who operate SoD:

Tassotti, clutton. BobProperty, RosySparkle, littlesaint's landlord, Kuztardd's landlord, Tiglet's agent, babe ruth, MJMum, oligopoly's landlord, jazzholiday, peachespeaches's agent, tigzem's agent

Landlords/agents who don't operate SoD but would consider operating it in future:

thesaint

Landlords/agents who don't operate SoD:

prudryden, Gorgeous George, Bungarm2001, Notlob, scrummy mummy

Landlords/agents who have posted condemning SoD:

Gorgeous George

franklee

Here's another link from the National Landlords Association takling about serving the S21:

http://www.landlords.org.uk/tenancy_deposit_protection.asp

"What happens if I don't comply?

If the tenant (or the person who paid their deposit) does not believe that the landlord is complying with an authorised scheme they can take him to court.

If the landlord is found guilty the court can order the person holding the deposit to repay it to the tenant, or pay it into the custodial deposit scheme, within 14 days.

The court must also order the landlord to pay the tenant 3 times the deposit amount as a penalty.

Furthermore a landlord is not allowed to serve a section 21 notice if he has not complied with the requirements of a deposit scheme or has not given the tenant information about the law relating to deposits and the scheme itself."

.............................................................................................................

EDITED TO ADD: And Marveen Smith on money box:

DUGGLEBY: Is this common practice, this service of notice, the 21, at the outset?

SMITH: It is common practice at the moment, but of course once the new Tenancy Deposit Scheme comes in, it will have to change. Why? Because the agent or landlord cannot give the Section 21 to the tenant until after they've complied with the requirements of the Housing Act 2004, otherwise the notice is not valid.

DUGGLEBY: Aha! Did you know that, John?

SMITH: There's strong penalties.

SOCHA: Yes, some agents do this. It makes their job easy because they've pre-told the tenant that they're leaving. But as a landlord, the last thing you want ... The average landlord is looking for the longest possible tenancy and to tell somebody on the first day: welcome and you're going in 6 months doesn't make a lot of sense. So I think anyone who's using an agent who's doing that ought to think quite carefully about what they're doing. What is their objective? Is their objective to keep the tenants there as long as possible, which makes more money for the landlord, or are they just looking for more fees by turning the tenants over every 6 months?

scrummy_mummy_2

Marveen is my solicitor for all property related dealings and I was trained for my property management (NAEA) quals by her at one of the NAEA seminars....I will ring her and qualify what this actually means.

Cheers.

Guy_Montag

scrummy_mummy wrote: »

Marveen is my solicitor for all property related dealings and I was trained for my property management (NAEA) quals by her at one of the NAEA seminars....I will ring her and qualify what this actually means.

Cheers.

Please do, I would be very interested to find out about this. I've never been issued with an S21 when I began a tenancy (in fact I've never been issued with one at all), but if I was I would be most !!!!ed off. In fact I'm going to start asking in future - I'll not rent from anyone that does.

scrummy_mummy_2

I SUSPECT (my own thoughts at the minute only..) that as long as you supply the printed information that details the terms of the scheme you choose to use...you know, the Information for Tenants stuff produced by the scheme, (I use TDS through NLA) and show your registration details (membership certificate of the scheme) that that would PROBABLY be what she means by 'providing details of the relevant scheme'....I don't infer from the quote posted by Franklee from Marveen that you actually have to have the deposit money deposited in the scheme and have the protection certificate in issued ...but I need (personally) to clarify....surely this significant change would require an ammend to the statute as the rules surrounding when a S21 can be issued are already in place and (reasonably!!!:rotfl: )
clear?????
I'm off on hols next week and will put it on my 'to do' list and will post when I get back and update you all.

BobProperty

franklee wrote: »

.....
Landlords/agents who operate SoD:

Tassotti, clutton. BobProperty, RosySparkle, littlesaint's landlord, Kuztardd's landlord, Tiglet's agent, babe ruth, MJMum, oligopoly's landlord, jazzholiday, peachespeaches's agent, tigzem's agent
.......

Oi! Used to, please, franklee. I haven't been a landlord for a few years now.

Anyway, your interpretation looks valid. You, as a tenant, (or even me as a tenant ) don't know you have a valid tenancy agreement under which an S21 can be issued until you are notified that your deposit is in a recognised tenancy deposit scheme. That would mean that the fastest you can now get an S21 is with the notice of where your deposit is being held.
As an explanation to the previous situation about dating and timing the AST. The reason is the law only allows an S21 to be issued once a tenancy has started, IIRC, so the S21 must 1, be dated later than the start of the tenancy agreement and 2, after the tenancy has started. Therefore an S21 in an AST is unenforceable, as is issuing both before the actual start of the tenancy.

Off topic, I'm back

TheDink

Lavendyr wrote: »

Also we have a clause in our contract giving notice with regards to Ground 2, Part I of the Housing Act 1988 - which as far as I understand it means that the landlord must still give us two months' notice, but *if* the landlord wanted to live in the property (he actually used to live in the property before letting it out) the court is required to order possession to the landlord - not that the landlord can just kick us out whenever he likes. I take it thats' not an S21?

Thanks in advance for help

This is the required prior notice under Schedule 2 of the Housing Act 1988. By inserting this notice into your tenancy agreement, the landlord can serve a Section 8 notice giving you 2 months notice to leave. If the LL did decide he wanted to live in the property again, he could serve a Section 8 notice, but once the initial 6 month period of an AST is over, he's far more likely to serve an S21 instead as generally this is quicker and easier. Either way, I don't think there's anything to worry about in your tenancy - this isn't a notice being served.