Law regarding statutory periodic and deposit protection

saajan_12

lookstraightahead said:

solidpro said:

lookstraightahead said:

I wonder if all of this has come about because they made a mistake with a burn mark? In the same way as you have made a mistake with the deposit scheme.
i suppose they feel they have nothing to lose. I say this because years ago we were charged for a mark on the curtains and although it wasn't much, I felt very disgruntled as we had looked after the property and the landlord (or agent) was obviously trying to get the cost of the fees back. 

I suspect so. They feel they met their obligations when they didn't. Lightbulbs not replaced, grease all over the ground floor from not using the extractor fan, unkept garden (not touched in over a year), not replacing water softener - and this damage. This is also very much detailed in an inventory and tenancy agreement, so if that's what's disputed then the DPS scheme is there to arbitrate. 

I suspect they never read their tenancy agreement or the inventory they signed and simply called up the DPS company who blurted out 'unprotected' and 'compensation' which would 'put right' their perceived wrongs - many of which we overlooked.

However this isn't about damage to property anymore, it's about being unprotected. I am going to argue that we both initially protected the deposit and the DPS company agree that we have adhered to their scheme which means the tenant IS protected today and should use them for mediation. Trying to frame us as a 'bad landlord' will be met with a lot of contrary evidence.

I've read s213 and s214 a few times. I'm no lawyer but it seems the two elements in which a case can be brought is if the deposit wasn't initially protected or our use of DPS didn't adhere to the provider's rules. I agree there was a period of unprotection in the middle. However we re-protected it WITHIN the rules so that the tenant was not affected in any way, and when it was actually necessary - i.e. when moving out.

All this damage they did - did you not do regular checks? Surely you would have informed them about the state of the garden at least? 
I agree it's not now about damage, it's more about a learning curve.

What difference would that actually make? They're not severe enough to evict over, and the tenant doesn't actually have to keep the place clean / garden mowed etc during their stay, as long as they remediate it before they leave. 

bpj

It's not completely clear to me what happened. Is this a good summary?

They paid £1500 deposit, which you protected using the mydeposits insurance backed scheme.

After 12 months the AST ended, and the tenants continued in the property under an SPT. The insurance lapsed because you didn't inform mydeposits of the SPT as they require. I note that this requirement is given on the front page of their website.

After another 12 months they moved out. You agreed to return £1250 but wanted to retain £250. They attempted to dispute and discovered there was no protection.

Upon discovering this, you were able to pay a fee to reinstate the protection on the remaining £250.

If this is correct then my unqualified opinion is that the SPT is a new tenancy for which the deposit was not protected, and some penalty will be due. There's some discussion along these lines here:

https://nearlylegal.co.uk/2018/03/deposits-dont-fake-compliance-and-the-multiple-breach-issue/

In your shoes I would offer to return the disputed £250 and hope they see that as a fair outcome. If not I agree with others that the most likely outcome would be a penalty of 1X the deposit, but again this is an unqualified opinion.

greatcrested

The case you quote is not directly comparable, and revolves primarily around whether multiple penalties can be awarded for multiple tenancies ie original fixed term, and subsequent SPT.

But that does not affect that a deposit must be protected at the start, and remain protected throughout a tenancy or series of tenancies/occupation.

The Deregulation Act 2015  removed the need to re-issue the Prescribed Information when a SPT arises (despite it being legally a new tenancy), which makes it more understandable that a landlord would assume that his original protection (and hence compliance with the requirements) continues.

However, the specific rules of the scheme in question here do require renewal of the protection (and hence I suspect also re-issuing of the PI - though that seems unclear).

lookstraightahead

After my headache of reading every minute detail about buying an old property, asking daft questions on here etc, I cannot understand why someone with the huge responsibility of being a landlord thinks their mistake is just acceptable. I understand that it was a mistake, but it is still 'landlord beware' surely? 

lookstraightahead

saajan_12 said:

lookstraightahead said:

solidpro said:

lookstraightahead said:

I wonder if all of this has come about because they made a mistake with a burn mark? In the same way as you have made a mistake with the deposit scheme.
i suppose they feel they have nothing to lose. I say this because years ago we were charged for a mark on the curtains and although it wasn't much, I felt very disgruntled as we had looked after the property and the landlord (or agent) was obviously trying to get the cost of the fees back. 

I suspect so. They feel they met their obligations when they didn't. Lightbulbs not replaced, grease all over the ground floor from not using the extractor fan, unkept garden (not touched in over a year), not replacing water softener - and this damage. This is also very much detailed in an inventory and tenancy agreement, so if that's what's disputed then the DPS scheme is there to arbitrate. 

I suspect they never read their tenancy agreement or the inventory they signed and simply called up the DPS company who blurted out 'unprotected' and 'compensation' which would 'put right' their perceived wrongs - many of which we overlooked.

However this isn't about damage to property anymore, it's about being unprotected. I am going to argue that we both initially protected the deposit and the DPS company agree that we have adhered to their scheme which means the tenant IS protected today and should use them for mediation. Trying to frame us as a 'bad landlord' will be met with a lot of contrary evidence.

I've read s213 and s214 a few times. I'm no lawyer but it seems the two elements in which a case can be brought is if the deposit wasn't initially protected or our use of DPS didn't adhere to the provider's rules. I agree there was a period of unprotection in the middle. However we re-protected it WITHIN the rules so that the tenant was not affected in any way, and when it was actually necessary - i.e. when moving out.

All this damage they did - did you not do regular checks? Surely you would have informed them about the state of the garden at least? 
I agree it's not now about damage, it's more about a learning curve.

What difference would that actually make? They're not severe enough to evict over, and the tenant doesn't actually have to keep the place clean / garden mowed etc during their stay, as long as they remediate it before they leave. 

Because the op mentioned these things - apparently the garden hadn't bent mown in over a year ..

csgohan4

Another reason why I don't want to be a LL, so much admin burden and the law is very much on the Tenants side.  There is talk of section 21 being banned as well, giving more power to tenants

Hannimal

lookstraightahead said:

After my headache of reading every minute detail about buying an old property, asking daft questions on here etc, I cannot understand why someone with the huge responsibility of being a landlord thinks their mistake is just acceptable. I understand that it was a mistake, but it is still 'landlord beware' surely? 

Some of these people who insist they are good landlords don't seem to care about their tenant's rights at all. It does require due diligence. They are being snarky about how the tenants maybe didn't read the lease they signed, yet they failed to keep the deposit protected and only protected it when that was raised with them at the end of the tenancy when it was clear the tenants had realised their rights had been violated. The landlord's attitude throughout this thread is exactly why renting in the UK is such a pain. 

bpj

greatcrested said:

The case you quote is not directly comparable, and revolves primarily around whether multiple penalties can be awarded for multiple tenancies ie original fixed term, and subsequent SPT.

I should have been clearer that I included that link in support of the position that the SPT is a new tenancy as far as the deposit protection is concerned:

The Judge accepted the proposition that the periodic tenancy arising at the end of a fixed term was a new tenancy (section 5 Housing Act 1988 and Superstrike Ltd. v. Rodrigues (2013) EWCA Civ 669)

Given that OP seems to be relying on the fact that the deposit was protected at the start of the initial term as reason to believe no penalty is due.

anselld

The deregulation act 2015 negated the Superstrike case as far as the need to re-protect the deposit is concerned.  It only needs to be done once at the start of the fixed term.  In this case there is only one non-compliance and one potential penalty.

bpj

anselld said:

The deregulation act 2015 negated the Superstrike case as far as the need to re-protect the deposit is concerned.  It only needs to be done once at the start of the fixed term.  In this case there is only one non-compliance and one potential penalty.

 

Perhaps given the context here we should use slightly more careful wording - the deregulation act removes the need to reissue the deposit scheme details to the tenant, so long as the deposit remains in the same scheme. Saying it removes the need to re-protect the deposit might mislead the OP into thinking they are in the clear, which I don't think is the case (and I take it you agree from your final sentence).