Law regarding statutory periodic and deposit protection

solidpro

warwick2001 said:

Ultimately, once this goes to court (which I assume it will), the judge will decide whether they have broken the law or not. Unless anyone on here is a legal expert, you can only give your opinion of this. Which is absolutely fine, and you may believe your opinion is the same as the law. But only judges decide that, in a court of law. 

I also believe, in this case, the OP has come cropper of the law (however stupid the law may be). But that is just my opinion. 

Bring on the Judge!!!

I'm speaking with help from a QC who has given talks about the housing act and aware of our exact circumstance. I'm not professing to be an expert but I believe he is.

The law is exceptionally clear about the requirements of a landlord with an initial AST and deposit. This is not the issue. The issue is what happens when moving to Statutory Periodic and unless I'm typing in arabic and nobody can understand me, there was no requirement under section 215B Housing Act 2004 for the initial deposit to have been re-protected or prescribed information to have been provided again - in particular referring to section 215B(f) which applies upon the commencement of a statutory periodic tenancy under section 5(2) Housing Act 1988.

Besides the housing act only talking about the initial deposit anyway, in this case there is and was only one deposit and one AST, because a second AST was declined and SP was the chosen alternative.

In addition to this we have 4 written pieces of evidence from the authorised scheme saying that not only did we adhere to the scheme, but they were protected until 3 months after they vacated.

Seems this level of detail is beyond most pundits in here.

One other thing - it is impossible to setup deposit protection without an AST, therefore you cannot 'reprotect' anything if the tenant does not agree to enter into a new AST. You can switch an existing protection originally setup with an associated AST to SP, but you can't start up a new protection with simply SP. Perhaps this is why the law says nothing about re-protecting a deposit when the arrangement has switched to SP and there is no AST. Therefore many of you are suggesting that landlords do something which is, infact impossible.

MobileSaver

solidpro said:

Can you quote the line in the law supporting your view? I would suggest you read it first. You could start with section 215B(f) which applies upon the commencement of a statutory periodic tenancy under section 5(2) Housing Act 1988.

Er, I did read and actually quote the exact clause which is 215B(f).

"(f) when the new tenancy comes into being, the deposit continues to be held in connection with the new tenancy, in accordance with the same authorised scheme"

So, for the avoidance of doubt, did the deposit continue to be held in accordance with the same authorised scheme?

In layman's terms, did you follow the rules of the deposit scheme you were using?

solidpro said:

I didn't actually know that you had to call up the company you initially protect the deposit with and put it (for free) under a "statutory periodic".

From your original post above you did not and therefore in my view you are clearly guilty as charged.

solidpro said:

there was no requirement under section 215B Housing Act 2004 for the initial deposit to have been re-protected or prescribed information to have been provided again

- in particular referring to section 215B(f) which applies upon the commencement of a statutory periodic tenancy under section 5(2) Housing Act 1988.

The requirement under section 215B(f) of the Housing Act was to follow the rules of the scheme you were using; your downfall is that you did not follow those rules. QED you broke the law (albeit inadvertently.)

solidpro said:

In addition to this we have 4 written pieces of evidence from the authorised scheme saying that not only did we adhere to the scheme, but they were protected until 3 months after they vacated.

Seems this level of detail is beyond most pundits in here.

It seems sticking to one story is beyond you here!

You yourself admitted you did not adhere to the scheme ("I didn't actually know that you had to call up the company") and I note that you have now deleted most of your initial post, presumably to hide an inconvenient truth...

martindow

MobileSaver said:I note that you have now deleted most of your initial post, presumably to hide an inconvenient truth...

Fortunately it is quoted in full by a reply on the first page, so the thread still makes sense.  I wonder if the OP will come back to report once their QC has had his day in court?

saajan_12

Goodness, not sure why this escalated so much!

It sounded quite clear at this stage: 

1. The legislation does not require reprotection when a fixed term becomes a SPT. 
2. The legislation does require compliance with the chosen scheme's rules, and this scheme did require reprotection when the fixed term becomes a SPT -> so penalty could be due by the letter of the law. 
3. OP resolved the technical error before the end of the SPT, so practically, there was no detriment to the tenant, who was able to use the disputes etc 3 months after the tenancy ended, as usual. -> So 'fair' thing seems to be no penalty. 

There's little more anyone can know definitively beyond that, its really just upto a court on whether they would apply the penalty or not. 

OP, for the benefit of the people who have helped get to this understanding without namecalling, or anyone who may come after you in the same situation, please reinstate your OP and would be great if you can come back with the outcome. 

Robbo66

solidpro said:

warwick2001 said:

Ultimately, once this goes to court (which I assume it will), the judge will decide whether they have broken the law or not. Unless anyone on here is a legal expert, you can only give your opinion of this. Which is absolutely fine, and you may believe your opinion is the same as the law. But only judges decide that, in a court of law. 

I also believe, in this case, the OP has come cropper of the law (however stupid the law may be). But that is just my opinion. 

Bring on the Judge!!!

I'm speaking with help from a QC who has given talks about the housing act and aware of our exact circumstance. I'm not professing to be an expert but I believe he is.

The law is exceptionally clear about the requirements of a landlord with an initial AST and deposit. This is not the issue. The issue is what happens when moving to Statutory Periodic and unless I'm typing in arabic and nobody can understand me, there was no requirement under section 215B Housing Act 2004 for the initial deposit to have been re-protected or prescribed information to have been provided again - in particular referring to section 215B(f) which applies upon the commencement of a statutory periodic tenancy under section 5(2) Housing Act 1988.

Besides the housing act only talking about the initial deposit anyway, in this case there is and was only one deposit and one AST, because a second AST was declined and SP was the chosen alternative.

In addition to this we have 4 written pieces of evidence from the authorised scheme saying that not only did we adhere to the scheme, but they were protected until 3 months after they vacated.

Seems this level of detail is beyond most pundits in here.

One other thing - it is impossible to setup deposit protection without an AST, therefore you cannot 'reprotect' anything if the tenant does not agree to enter into a new AST. You can switch an existing protection originally setup with an associated AST to SP, but you can't start up a new protection with simply SP. Perhaps this is why the law says nothing about re-protecting a deposit when the arrangement has switched to SP and there is no AST. Therefore many of you are suggesting that landlords do something which is, infact impossible.

i think you will find the ruling in the "Superstrike" case will have a bearing on your situation, background is different but the ruling will apply to all STPs https://www.landlordzone.co.uk/information/tenancy-deposits-superstrike-and-the-deregulation-act/

It ruled a statutory periodic tenancy is a new tenancy and as such all deposits had to be re registered and new prescribed information given, by not doing this it invalidated any section 21 notices.  The same does not apply to CPT

solidpro

It ruled a statutory periodic tenancy is a new tenancy and as such all deposits had to be re registered and new prescribed information given, by not doing this it invalidated any section 21 notices.  The same does not apply to CPT

You can't register a deposit protection via a SP tenancy with MyDeposits. It has to be an AST.

solidpro

saajan_12 said:

1. The legislation does not require reprotection when a fixed term becomes a SPT. 

Correct. Nor does it require a landlord to provide information.

saajan_12 said:

1. The legislation does require compliance with the chosen scheme's rules, and this scheme did require reprotection when the fixed term becomes a SPT -> so penalty could be due by the letter of the law. 

We have 4 confirmations from the scheme that we did comply and adhere, along with a current certificate of coverage for the tenant.

saajan_12 said:

1. OP resolved the technical error before the end of the SPT, so practically, there was no detriment to the tenant, who was able to use the disputes etc 3 months after the tenancy ended, as usual. -> So 'fair' thing seems to be no penalty. 

Correct.

• Protected intitial Deposit within 30 days
• Provided protection documentation
• Adhered to the Scheme
• Reprotected with SPT
• No requirement to provide information upon SPT.
• Tenant covered with no detriment.

Will update when it is concluded.

[Deleted User]

solidpro said:

It ruled a statutory periodic tenancy is a new tenancy and as such all deposits had to be re registered and new prescribed information given, by not doing this it invalidated any section 21 notices.  The same does not apply to CPT

You can't register a deposit protection via a SP tenancy with MyDeposits. It has to be an AST.

A statutory periodic tenancy is an AST. 

[Deleted User]

Robbo66 said:

solidpro said:

warwick2001 said:

Ultimately, once this goes to court (which I assume it will), the judge will decide whether they have broken the law or not. Unless anyone on here is a legal expert, you can only give your opinion of this. Which is absolutely fine, and you may believe your opinion is the same as the law. But only judges decide that, in a court of law. 

I also believe, in this case, the OP has come cropper of the law (however stupid the law may be). But that is just my opinion. 

Bring on the Judge!!!

I'm speaking with help from a QC who has given talks about the housing act and aware of our exact circumstance. I'm not professing to be an expert but I believe he is.

The law is exceptionally clear about the requirements of a landlord with an initial AST and deposit. This is not the issue. The issue is what happens when moving to Statutory Periodic and unless I'm typing in arabic and nobody can understand me, there was no requirement under section 215B Housing Act 2004 for the initial deposit to have been re-protected or prescribed information to have been provided again - in particular referring to section 215B(f) which applies upon the commencement of a statutory periodic tenancy under section 5(2) Housing Act 1988.

Besides the housing act only talking about the initial deposit anyway, in this case there is and was only one deposit and one AST, because a second AST was declined and SP was the chosen alternative.

In addition to this we have 4 written pieces of evidence from the authorised scheme saying that not only did we adhere to the scheme, but they were protected until 3 months after they vacated.

Seems this level of detail is beyond most pundits in here.

One other thing - it is impossible to setup deposit protection without an AST, therefore you cannot 'reprotect' anything if the tenant does not agree to enter into a new AST. You can switch an existing protection originally setup with an associated AST to SP, but you can't start up a new protection with simply SP. Perhaps this is why the law says nothing about re-protecting a deposit when the arrangement has switched to SP and there is no AST. Therefore many of you are suggesting that landlords do something which is, infact impossible.

i think you will find the ruling in the "Superstrike" case will have a bearing on your situation, background is different but the ruling will apply to all STPs https://www.landlordzone.co.uk/information/tenancy-deposits-superstrike-and-the-deregulation-act/

It ruled a statutory periodic tenancy is a new tenancy and as such all deposits had to be re registered and new prescribed information given, by not doing this it invalidated any section 21 notices.  The same does not apply to CPT

Superstrike won’t have a bearing on the OP’s case. From the link you posted it says, “ The Deregulation Act was good news for landlords, as it will wiped out the deposit issues which arose following the Superstrike case.” 

Robbo66

solidpro said:

It ruled a statutory periodic tenancy is a new tenancy and as such all deposits had to be re registered and new prescribed information given, by not doing this it invalidated any section 21 notices.  The same does not apply to CPT

You can't register a deposit protection via a SP tenancy with MyDeposits. It has to be an AST.

But you would have had the option to mark it as periodic and create a new registration certificate which should then have been given to the tenant along with the prescribed information.

Sorry I took the wording from the ruling, you don't actually re register the deposit you update the information all ready held but you treat the ending of the fixed term going in to a SPT as a new tenancy and new tenancy rules apply in this instance.