Section 21 help

mrsgellyg

Hello,
I received a section 21 about a month ago (pre-lockdown,so it’s valid for two months). I know I have a bit of time regarding evictions due to the current situation,but I have some issues that I need help with,ready for when the courts open up again. 

With my deposit,I eventually found my certificate on line after contacting the DPS. My certificate has the incorrect tenancy start date on it - it was 12/02/15 but it’s on the certificate as 09/03/15. The deposit was paid within 30 days. Does this mean my deposit is technically not protected due to this error? 

I also do not have any prescribed information for the deposit (I have terms and conditions,I’m assuming this is different to the prescribed information?) and there is also no EPC. 

If I am entitled to get my deposit back due to the issues mentioned,before a new section 21 can be served,what is the best way to inform my landlord about this? 

Many thanks 😊 

greatcrested

mrsgellyg said:

With my deposit,I eventually found my certificate on line after contacting the DPS. My certificate has the incorrect tenancy start date on it - it was 12/02/05 but it’s on the certificate as 09/03/05. The deposit was paid within 30 days. Does this mean my deposit is technically not protected due to this error? 

I also do not have any prescribed information for the deposit (I have terms and conditions,I’m assuming this is different to the prescribed information?) and there is also no EPC. 

If I am entitled to get my deposit back due to the issues mentioned,before a new section 21 can be served,what is the best way to inform my landlord about this?

I suspect the dates are an adminisartive error- not signoficant. And since it was protected within 30 days that's fine.

If you never got the PI, the S21 is invalid. See link below to check.

No EPC so S21 is invalid.

If the S21 is invalid, why tell the LL and help him? Wait for a court date and tell the judge.

Post 3: Deposits: Payment, Protection and Return.

**  S21 checklist (Is a S21 valid?)

** Prescribed Information (RLA explanation of each scheme's PI and what must be provided)

anselld

I am not sure the PI was required in 2005.  Also you say there *is* no EPC, but *was* there one at the start of the tenancy?  AFAIK it is not necessary to renew unless there is a new tenancy.
Probably best to check the validity in detail here...
   https://markprichard.co.uk/content/documents/170522-Section-21-checker-tool.pdf

greatcrested

anselld said:

I am not sure the PI was required in 2005.  Also you say there *is* no EPC, but *was* there one at the start of the tenancy?  AFAIK it is not necessary to renew unless there is a new tenancy.
Probably best to check the validity in detail here...
   https://markprichard.co.uk/content/documents/170522-Section-21-checker-tool.pdf

Good point. The Housing Act 2004, in its original form before amendment, says:

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.

so

a) protection should have been within 14 days, not 30

b) PI should have been given, though I do't know what constituted PI at that time.

mrsgellyg

greatcrested said

If the S21 is invalid, why tell the LL and help him? Wait for a court date and tell the judge.

I’m hoping to move out before it goes to court once the restrictions have been eased and I have a large deposit in my current property that I’d hope to use to secure another property

greatcrested

Ah! Then you might be able to pursuade him to release the deposit to you.

Make sure you serve the proper notice before leaving of course.

[Deleted User]

He may, but he also may not return your deposit.  What will you do then? Can you save the deposit in time to move to this property?

anselld

greatcrested said:

Good point. The Housing Act 2004, in its original form before amendment, says:

The deposit protection provisions did not come into effect until April 2007 though and I am unsure if the PI would be required retrospectively.  The Pritchard test seems to bypass the requirement for PI for pre-April 2007 tenancies.

greatcrested

anselld said:

greatcrested said:

Good point. The Housing Act 2004, in its original form before amendment, says:

The deposit protection provisions did not come into effect until April 2007 though and I am unsure if the PI would be required retrospectively.  The Pritchard test seems to bypass the requirement for PI for pre-April 2007 tenancies.

I'm really not thinking! And should have re-read the Deposit link I provided earlier!

Where a tenancy was created before 6th April 2007 the deposit does not need to be registered in a scheme. However, if it is not registered, a valid S21 Notice cannot be served by the landlord unless it is first either returned or protected in a scheme.

Any tenancy created (whether fixed term or periodic) since 6th April 2007 requires the deposit to be registered & the PI served. This includes tenancies that existed before 2007 but where the fixed term was renewed, or became periodic, after 6th April 2007.

So protection was not required in 2005 when it was paid (and equally PI was not needed). However before a S21 can be served the deposit must be either

a) returned or

b) protected and PI served

And if a new fixed term was signed post 2007, or a fixed term became periodic post 2007, then at that point the deposit had to be protected + PI served (failing which the S21 would be invalid and the penalty could be claimed).

The leglislation was such an appalling hotch potch, with amendments in the Localism Act and then Deregulation Act, that it's hard to recall what was in force at what point in time!

Post 3: Deposits: Payment, Protection and Return.