Late rent, periodic tenancy & no deposit protected

Dolittler

Hello all,

We had an AST that expired a year ago. It moved periodic at the end, but we have fallen on hard times and are 2 months behind. 

We are hoping to pay the outstanding amount next week, but the landlord told us to vacate end of month by email, no section 8 or 21 served.

The deposit protection stopped a month after the AST expired (March 2019) and the deposit was for 6 weeks rent, still held by the landlord. We have in writing that the landlord would reprotect the deposit and I reminded them of that last July with no response.

Can we refuse to leave unless a section 8 or 21 is served?

If they do should we respond with a claim on deposit non-protection and how likely is it to be granted based on the above? 

Does this impact the rent arrears and how long does the process take? I can't find why it would be 1x or 3x penalty but that would be 6-18 weeks rent.

I feel kind of weird about this and want to pay all rent for the period we are in the property but want to stay here while I start my new job, get back on my feet etc. At the same time it is a statutory thing it seems and they are refusing to give us more time.

Given it is periodic when are we likely to have to leave if everything is paid?

Many thanks.

theartfullodger

Even if an s21 or s8 - even if they are valid, many aren't - is served you still don't have to leave.  A landlord can only force a tenant to go after valid notice, expiry of notice, court action, possession order granted, order expires, bailiffs/HCEO: Usually 5-6 months. 

A valid s21 or s8 does not end a tenancy nor compel a tenant to leave.

Do nothing.

Many landlords, a lot of agents, some solicitors don't understand landlord/tenant law anyway.

Just being "told" (actually asked) to leave by email has no legal effect.

But not paying rent is never wise: Do you need a reference from landlord/agent? How would you feel if landlord didn;t abide by contract - eg removed one room from the tenancy without notice? (Merely asking...)

If you want free advice (maybe a wait..) call Shelter helpline 0808 800 4444, open weekends

Dolittler

Will call Shelter and see what they have to say.
Feel crap being late on rent but starting new job (fingers crossed) and can catch up next week as I told landlord. Landlord didn't care.
I think there is stuff within your capability and control and stuff outside. You gotta be upright in the stuff you can control and be understanding if stuff happens the other side can't. 
That's why I'm a bit conflicted on the deposit protection claim. I haven't kept up with rent but trying to rectify, but it appears landlord is likely (I think) to owe me 6 weeks worth of rent by not protecting my deposit. Is it moral to claim that and start the process given the history? Feels off.

diggingdude

I would be tempted not to mention the deposit or anything else at this moment in time. Pay your rent arrears as soon as possible remember they are a priority over everything else but food. only when they come to evict properly would I let them know that they haven't protected the deposit. they used to be someone who could have given you better information than me if I mentioned them I will get reported

Marvel1

Do not mention about section 8 or 21 and deposit not being protected, don't help the landlord that way, they should know this before starting the business.  The only to help both yourselves is to pay the rent.   Ignore the email.

AdrianC

Dolittler said:

We had an AST that expired a year ago. It moved periodic at the end, but we have fallen on hard times and are 2 months behind. 

We are hoping to pay the outstanding amount next week, but the landlord told us to vacate end of month by email, no section 8 or 21 served.

He can ask all he likes. But his informal request - and that's all it is, as of now - has precisely zero legal weight. If he wants to make it a formal request, then the way to do that is via s8 or s21 notice, two full rental periods. If it's s8, then the minute you pay a single penny below two months' worth of overdue rent, the s8 notice becomes invalid and he has to start it again when your overdue rent goes back over two months late. If it's s21, he has to get all his ducks in a row. Deposit, gas safety, paperwork, etc etc. Either way, the expiry of the notice is the first point he can start court proceedings to regain possession, which will take months. Until the court finds in his favour, you are there and he cannot legally do anything more to get you out.

The deposit protection stopped a month after the AST expired (March 2019) and the deposit was for 6 weeks rent, still held by the landlord.

If the deposit is in a scheme, it doesn't need reprotecting. It's valid for the entirety of your tenancy. If the deposit isn't in a scheme in very short order of your tenancy originally starting, then it's not protected. If it wasn't in one within 28 days of your tenancy starting, then any s21 is instantly invalid. Keep your rent less than two months overdue, and you're there for as long as you want to be.

Does this impact the rent arrears

No. They are entirely separate. You still owe your rent. Pay it as soon as you can, and keep paying it on time.

I can't find why it would be 1x or 3x penalty

You can take him to court for up to 3x the deposit at the end of the tenancy, if he doesn't simply repay it. <£10k, it's a small claim, which is quick, cheap and simple. The court will certainly order at least 1x, maybe up to 3x depending on how much michael the landlord has extracted in his dealings with you.

theartfullodger

Sue landlord over non-protection - but only after you've found your next home. Up to 3x deposit.  There are companies that will do it for you are advice how to DIY at Shelter...

https://england.shelter.org.uk/housing_advice/tenancy_deposits/tenancy_deposit_compensation_claims?

The legislation over compo for tenants came in after years & years & years of landlord ripping off tenants over deposits: Landlords complained they hadn't got enough time to do it, amount of time more than doubled yet still clowns like this kn*b'ead of a landlord get it wrong.  The only way landlords will "learn" to abide by the law is by tenants taking action suing.

Cheers all! Artful: Landlord since 2000

Dolittler

AdrianC said:

The deposit protection stopped a month after the AST expired (March 2019) and the deposit was for 6 weeks rent, still held by the landlord.

If the deposit is in a scheme, it doesn't need reprotecting. It's valid for the entirety of your tenancy. If the deposit isn't in a scheme in very short order of your tenancy originally starting, then it's not protected. If it wasn't in one within 28 days of your tenancy starting, then any s21 is instantly invalid. Keep your rent less than two months overdue, and you're there for as long as you want to be.

Thank you, I received the certificate of it being protected at the start of the original fixed term tenancy, it was a deposit held by the landlord in their own account and insured.

In March after it went periodic I received a message about it now becoming unprotected from the scheme as they hadn't heard from the landlord. 

Forwarded that to the landlord twice and asked them to reprotect it as part of the periodic negotiation. Still not protected.

Is section 21 the standard form that needs to be sent to end a periodic tenancy then?

Thank you diggingdude, Marvel1, AdrianC and theartfullodger for your input

theartfullodger

S21 from landlord to tenant yes, but I think non-protection means it will be invalid: (All together now, Ahh...)

https://england.shelter.org.uk/housing_advice/tenancy_deposits/tenancy_deposit_protection_rules

Wonder if this is you....

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1098977-reprotecting-deposit-that-became-unprotected

diggingdude

diggingdude said:

I would be tempted not to mention the deposit or anything else at this moment in time. Pay your rent arrears as soon as possible remember they are a priority over everything else but food. only when they come to evict properly would I let them know that they haven't protected the deposit. they used to be someone who could have given you better information than me if I mentioned them I will get reported

anyone want to tell me which part of this was spam which got reported:)

greatcrested

Landlord must use one of these:

1) S21. 2 months notice, then court. Only the court can order you to leave. But after the 2months you tell the court he deposit s unprotected and they cancel the S21 and LL must start again by first retuning the deposit in full

2) S8 G8. This is for rent arrears of 2+ months rent. After 2 weeks LL goes to court. The court must then order possession, but  If you pay the rent to below 2 months arrears, this will fail.

3) S8 G10. This is for any amount of ret arrears. After 2 weeks LL goes to court and court can, if they wish, order possession, but often don't unless there are other factors.

If the LL tries to evict without any of the above, it's a criminal offence. However, if you think he might(and it seems he is unaware of the process...) then change the lock on the front/back doors. Cheap and easy to DIY.

Keep claiming the deposit penalty in reserve. You have 6 years to claim this at any time. Maybe use it later as a warning if the LL is not following the above procedure.

Whether you get 1x or 3x the deposit is up to the court who look at all the circumstances.