Advice regarding possession notice

WispyMisty

propertyrental said:

WispyMisty said:

I have an update to this situation - the landlord (who lives abroad) is quoting a lot of US and Aus case law saying that the mortgage deed is not legal so he just stopped paying !well obviously cr@ppage! LL will lose in (UK) court.

He has told my son not to worry, he's protected blah blah blah - and yet as to be expected there have now been 2 Court notices - a Warrant of Control and an Eviction Notice dated for 7th December. as expected

My son has now got them to suspend that eviction notice until end of Jan due to their young child and Christmas looming
Well done - was this agreed direct with the lender, or via the court?
 but the lender has said they don't want the rent paying to them (presumably so they don't legally become the lender's tenants?)
correct!
The lender also says there was no permission given for the tenancy. If true (and they are unlikely to be wrong), then they can gain possession and the T's only protection is the 2 months via the Mortgage Repossessions (Protection of Tenants etc) Act 2010

Does this mean that the lender now owns the property? I'm not sure of the precise legal position re ownership, but the Warrant of Control effectively gives the lender the rights of ownership.

Or is there still a chance for this to be overturned and the landlord retain the property? I think that horsehas bolted.....

So - rent ? What to do with it?  I'm minded for it to be put aside in a savings pot labelled 'rent' in case it gets asked for at a future date - but obviously don't want this to cause them any future problems.
Definitely do this. Do NOT pay it to the ex-landlord. Do NOT pay it to thelender, but DO keep it (as opposed to going on a xmas shopping spree!) in case you need to pay it in future.

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

WispyMisty said:

GDB2222 said:

Is there any evidence the deposit has been protected?

I suggest not paying any rent to the overseas landlord, but put it to one side. Rent arrears  is the least of your son's worries. If your son's LL doesn't have a chitty from HMRC, then your son shouldn't be paying him gross anyway. 

Look around for a new property, and move ASAP. 

 As far as we know the deposit is protected but my son is double checking with the agent as mid-way through the tenancy the LL dispatched with the agents services - ....

Don't check with the agents. Check direct with each deposit scheme. See

Post 3: Deposits: Payment, Protection and Return.

GDB2222 said:

.....

In the same vein, I would dream up some excuse for not paying rent to the LL, for example that he has reneged on the tenancy agreement. .....

I have to disagree. I would not engage with the LL at all. No need to email or contact. Just don't pay the rent.

If the LL is stupid enough to try taking action for rent arrears he will just dig another hole for himself.

But if you contact him with 'excuses' you will just end up with a back and forth argument  which will achieve nothing but stress, further requests for advice here about how to respond, and potentially might inadvertently say something on which the LL can later rely.

Silence is golden and less is more!

The lender has a Warrant of Control so that's who you deal with, and they don't want rent!

Hi again - the funds are in Tenancy Deposit Scheme (TDS) but it looks like the landlord still holds the money, although it's protected. They seem to do 2 versions - custodial and insured. 
I can't find any contact details for them other than starting a dispute protocol, do you have any idea of how they deal with repaying the deposit once a possession order has been granted against their LL?

GDB2222

WispyMisty said:

Hi again - the funds are in Tenancy Deposit Scheme (TDS) but it looks like the landlord still holds the money, although it's protected. They seem to do 2 versions - custodial and insured. 
I can't find any contact details for them other than starting a dispute protocol, do you have any idea of how they deal with repaying the deposit once a possession order has been granted against their LL?

https://www.tenancydepositscheme.com/learn-more/help-centre/contact-us/


If the tenancy has ended, ask the LL for the deposit. If it's not paid then raise a dispute. 

WispyMisty

GDB2222 said:

WispyMisty said:

Hi again - the funds are in Tenancy Deposit Scheme (TDS) but it looks like the landlord still holds the money, although it's protected. They seem to do 2 versions - custodial and insured. 
I can't find any contact details for them other than starting a dispute protocol, do you have any idea of how they deal with repaying the deposit once a possession order has been granted against their LL?

https://www.tenancydepositscheme.com/learn-more/help-centre/contact-us/


If the tenancy has ended, ask the LL for the deposit. If it's not paid then raise a dispute. 

Currently they're still in the property but a possession order has been granted to the LL's lender. The lender has granted an extension until end of January. 
Surely in the circumstances the TDS would authorise return of the deposit as it is the LL that defaulted?

RHemmings

WispyMisty said:

propertyrental said:

WispyMisty said:

I have an update to this situation - the landlord (who lives abroad) is quoting a lot of US and Aus case law saying that the mortgage deed is not legal so he just stopped paying !well obviously cr@ppage! LL will lose in (UK) court.

He has told my son not to worry, he's protected blah blah blah - and yet as to be expected there have now been 2 Court notices - a Warrant of Control and an Eviction Notice dated for 7th December. as expected

My son has now got them to suspend that eviction notice until end of Jan due to their young child and Christmas looming
Well done - was this agreed direct with the lender, or via the court?
 but the lender has said they don't want the rent paying to them (presumably so they don't legally become the lender's tenants?)
correct!
The lender also says there was no permission given for the tenancy. If true (and they are unlikely to be wrong), then they can gain possession and the T's only protection is the 2 months via the Mortgage Repossessions (Protection of Tenants etc) Act 2010

Does this mean that the lender now owns the property? I'm not sure of the precise legal position re ownership, but the Warrant of Control effectively gives the lender the rights of ownership.

Or is there still a chance for this to be overturned and the landlord retain the property? I think that horsehas bolted.....

So - rent ? What to do with it?  I'm minded for it to be put aside in a savings pot labelled 'rent' in case it gets asked for at a future date - but obviously don't want this to cause them any future problems.
Definitely do this. Do NOT pay it to the ex-landlord. Do NOT pay it to thelender, but DO keep it (as opposed to going on a xmas shopping spree!) in case you need to pay it in future.

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

WispyMisty said:

GDB2222 said:

Is there any evidence the deposit has been protected?

I suggest not paying any rent to the overseas landlord, but put it to one side. Rent arrears  is the least of your son's worries. If your son's LL doesn't have a chitty from HMRC, then your son shouldn't be paying him gross anyway. 

Look around for a new property, and move ASAP. 

 As far as we know the deposit is protected but my son is double checking with the agent as mid-way through the tenancy the LL dispatched with the agents services - ....

Don't check with the agents. Check direct with each deposit scheme. See

Post 3: Deposits: Payment, Protection and Return.

GDB2222 said:

.....

In the same vein, I would dream up some excuse for not paying rent to the LL, for example that he has reneged on the tenancy agreement. .....

I have to disagree. I would not engage with the LL at all. No need to email or contact. Just don't pay the rent.

If the LL is stupid enough to try taking action for rent arrears he will just dig another hole for himself.

But if you contact him with 'excuses' you will just end up with a back and forth argument  which will achieve nothing but stress, further requests for advice here about how to respond, and potentially might inadvertently say something on which the LL can later rely.

Silence is golden and less is more!

The lender has a Warrant of Control so that's who you deal with, and they don't want rent!

Hi again - the funds are in Tenancy Deposit Scheme (TDS) but it looks like the landlord still holds the money, although it's protected. They seem to do 2 versions - custodial and insured. 
I can't find any contact details for them other than starting a dispute protocol, do you have any idea of how they deal with repaying the deposit once a possession order has been granted against their LL?

If it's insured which it seems that it is, then the landlord holds the money. What should happen is that you and the landlord should try to agree how much is returned, and if you agree, the landlord can return the money directly. 

If there is a disagreement, then the disputed amount should be passed from the landlord to the TDS. There will then be a dispute resolution as per normal. E.g. if the deposit is £1000, and the landlord thinks there should be £200 deduction, but the tenant thinks there should only be £100, then the landlord can pay £800 to the tenant and then £200 to the scheme. The scheme will then make a decision and return an amount to both landlord and tenant. 

I've read a number of pages on what happens with insured deposits where one party can not be contacted. The agent in the case of the OP. The schemes are much quieter on what happens in that situation for an insured deposit, and I can't find clear information on what happens. 

As mentioned above, the OP's contract is with the landlord, and so therefore the landlord should pay back the deposit. However, that may be tricky and take time - e.g. if the landlord says no you may have to sue them. E.g. https://england.shelter.org.uk/housing_advice/tenancy_deposits/how_to_get_your_deposit_back/if_your_landlord_does_not_respond

It does seem to me that insured deposits may not really protect the deposit. I would have thought that the point of insurance is that the deposit would still be returned even if the landlord refuses to return the money or if they are uncontactable. But, it seems not. 

WispyMisty

Thanks @RHemmings it's so complicated especially with the LL being overseas - I think (hope) I've found a phone number for TDS so may be able to clarify tomorrow but otherwise we'll just have to hope the LL sees sense 

silvercar

I doubt the landlord has money in the UK, or he would be paying the mortgage. Chances of getting your deposit back from an insured scheme with an overseas landlord who is being repossessed is small. Unless the TDS will pay out through their deposit insurance, I doubt you will see a penny. 

You could withhold rent o allow for this, though the lender in repossession is entitled to receive the rent.  

propertyrental

I'm really not sure but I suspect the advice above is wrong.

The tenancy has not ended, therefore the deposit is not (yet) due to be returned.

There are 2 possibilities:

1) the original landlord is still the landlord, and therefore can/should continue to hold the deposit until such time as the tenancy ends or he ceases to be the LL.

2) More likely, the morthage lender has been granted possession so is now the tenant's (new) landlord, until such time as the tenancy is ended. So the lender is now responsible for the deposit. Whether the lender obtains the deposit from the original landlord is their problem, not the tenant's. When the tenancy ends, the tenant claims the deposit from the (new) landlord.

WispyMisty

Thanks @propertyrental we're hoping that your possibility 2 is what will happen - the lender has a possession order which they have delayed until end of Jan - however in their letter they state that 'the agreement does not mean that the lender becomes the landlord, or responsible for repairs etc"

Obviously until my son and family actually move out (hopefully imminent) they can't apply for the deposit back so we're trying to find out the most likely scenario.

@silvercar the lender has so far stated they don't want the rent paying to them.  We are certainly concerned about it bera struggle to get the deposit back unless the lender is now responsible (fingers crossed) 

If I get anything approaching a comprehensive answer tomorrow I'll pop back and update 

GDB2222

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

WispyMisty

GDB2222 said:

I've only dealt with 'deposited deposits', but I assume that the insured schemes do indeed provide insurance to the tenant. Otherwise, the deposit would not be protected, and there'd have been an outcry by now. 

Very good point! It just seems a weird set up, I'd automatically assumed that every deposit would actually be held in a specific place, not that there would be a second option.