Never received section 13, but letting agency chasing for rental arrears

EGB123

Hi all, looking for some advice please!

I was alerted end of November that I was in rental arrears. It turns out the letting agency say they issue a section 13 notice in July for my rent in August (I'm on a monthly periodic tenancy). I never received the section 13 notice, and the rent increase is more than I was in rental arrears for. It turns out they held onto my holding deposit and had used that to pay for 3 and a bit months worth of increased rent without telling me.

While I've started the complaints process, the letting agency are still chasing me for the additional rental arrears now for November and have threatened legal action and eviction. While they have shared a drafted section 13 as evidence, they have confirmed they didn't do tracked postage or email this to me and so cannot provide any evidence the section 13 made it to me. 

Do I need to accept I am in rental arrears, or can I challenge this as I never received the section 13? To note, I am also complaining about withholding my holding deposit and using this to may for the additional rent increase in previous months. 

Any advice appreciated, thank you!

FlorayG

Definitely challenge it. They should have contacted you the FIRST month you didn't pay the full amount of rent requested and ask you why not, not leave it until now.
Also your deposit (what exactly do you mean by 'holding' deposit?) must by law be put into a registered Deposit Protection Scheme and if they had done that they would not have been able to access it without you knowing. This makes me think they didn't do the legal requirement and if that's the case you can make a huge claim against them. Do you actually rent from the letting agency ( they rent it to rent out) or through them from a landlord (agency just charges the landlord a fee)?
My first move would be to demand to know from where they accessed my deposit money

DE_612183

FlorayG said:

My first move would be to demand to know from where they accessed my deposit money

This ^^^^^

Abuse of deposit scheme is a big no no and you can claim big

theartfullodger

They just have to have served the notice: The dog could have eaten it. 

Ask (calm & polite) for their proof they served it.

Devious landlords have been known to end up "sending" an s21 or s13 notice, getting proof of postage from post office, but actually just sending an envelope with, say, local take-away menu in it.  Then judge accepts their evidence.

I am for my sins a landlord: No, not me.  Good luck & yes, dispute it.

Jumblebumble

FlorayG said:

Definitely challenge it. They should have contacted you the FIRST month you didn't pay the full amount of rent requested and ask you why not, not leave it until now.
Also your deposit (what exactly do you mean by 'holding' deposit?) must by law be put into a registered Deposit Protection Scheme and if they had done that they would not have been able to access it without you knowing. This makes me think they didn't do the legal requirement and if that's the case you can make a huge claim against them. Do you actually rent from the letting agency ( they rent it to rent out) or through them from a landlord (agency just charges the landlord a fee)?
My first move would be to demand to know from where they accessed my deposit money

I am sorry to inform you that I believe that you are mistaken
The agent could very easily have set  up insured deposit protection and legally retain the deposit  and so could perfectly well access the "holding deposit" without the OP knowing.
( whether they should be doing this is a different kettle of fish )

saajan_12

FlorayG said:

Definitely challenge it. They should have contacted you the FIRST month you didn't pay the full amount of rent requested and ask you why not, not leave it until now.
Also your deposit (what exactly do you mean by 'holding' deposit?) must by law be put into a registered Deposit Protection Scheme and if they had done that they would not have been able to access it without you knowing. This makes me think they didn't do the legal requirement and if that's the case you can make a huge claim against them. Do you actually rent from the letting agency ( they rent it to rent out) or through them from a landlord (agency just charges the landlord a fee)?
My first move would be to demand to know from where they accessed my deposit money

Incorrect. 
There is no obligation to remind you of rent arrears, its up to the tenant to pay it. 

If the 'holding deposit' is a 'security deposit' then it can be an insured protection scheme, where the LL physically holds the money for a fee, so there's no issue with 'using' or 'accessing' it. At the end of the tenancy, if theres a dispute then the DPS will arbitrate and then get the tenant paid. Before that point, all it means is the LL is mentally accounting that they aren't out money because they will eventually deduct from the deposit. 

If it is a holding deposit (ie upto 1 weeks rent) then that should have been returned or gone towards the security / first months rent. It shouldn't still be in question now. 

saajan_12

EGB123 said:

Hi all, looking for some advice please!

I was alerted end of November that I was in rental arrears. It turns out the letting agency say they issue a section 13 notice in July for my rent in August (I'm on a monthly periodic tenancy). I never received the section 13 notice, and the rent increase is more than I was in rental arrears for. It turns out they held onto my holding deposit and had used that to pay for 3 and a bit months worth of increased rent without telling me.

While I've started the complaints process, the letting agency are still chasing me for the additional rental arrears now for November and have threatened legal action and eviction. While they have shared a drafted section 13 as evidence, they have confirmed they didn't do tracked postage or email this to me and so cannot provide any evidence the section 13 made it to me. 

Do I need to accept I am in rental arrears, or can I challenge this as I never received the section 13? To note, I am also complaining about withholding my holding deposit and using this to may for the additional rent increase in previous months. 

Any advice appreciated, thank you!

Well they don't have to prove it reached you - that would be impossible with regular post and the various tracked services can usually be ignored by the recipient. So the standard is that they have to prove it was posted - eg from the post office. Ask for that. 

Meanwhile does the rent increase sound reasonable, in comparison to the rental market in your area? Can you afford it? Worth thinking about what you would do if you got such a notice now. 

Mr.Generous

From my own experience I always hve a two way communication with all tenants about a rent increase, I can't imagine just posting a notice and then nothing, especially when the increase wasn't paid. It says so much about the tenant/agent relationship - but doesn't mean it's not legal.

EGB123

Thanks all 

To clarify:

- They initially just said they had overcharged me at the start of my tenancy 3 years ago, when I assumed it was my security deposit and asked for evidence that they'd placed my deposit in a security scheme, they then clarified that it was my holding deposit (so 1 week of rent).

- I think I'm already paying a bit more than what the current market rate is (there are two similar flats in my building currently going for less than what I'm paying currently).  If I had received the section 13, I would have felt pretty comfortable challenging it. 

- All the letting agency have said is that the section 13 was "sent in the post as normal" and so cannot evidence delivery, but that the section 13 is still deemed as being served. 

I suppose my main issue is that while I've launched the complaints process, I'm currently being chased almost daily for the alleged rental arrears. I've been quite clear that I don't think I can be in arrears and that this should stop while the company processes my complaint, but I'm still getting threats of a) a money judgement against me for the arrears, and b) an indemnity for all legal costs of likely more than £500. How likely is this? I've been told I can't go to the Ombudsman until I've completed the internal complaints procedure. 

Thank you again!

DE_612183

They'd have to take you to court for a Money Judgement ( CCJ ) and you'd have to lose, and not pay within 28 days - so I think you are ok to ignore those threats.

saajan_12

EGB123 said:

Thanks all 

To clarify:

- They initially just said they had overcharged me at the start of my tenancy 3 years ago, when I assumed it was my security deposit and asked for evidence that they'd placed my deposit in a security scheme, they then clarified that it was my holding deposit (so 1 week of rent).

- I think I'm already paying a bit more than what the current market rate is (there are two similar flats in my building currently going for less than what I'm paying currently).  If I had received the section 13, I would have felt pretty comfortable challenging it. 

- All the letting agency have said is that the section 13 was "sent in the post as normal" and so cannot evidence delivery, but that the section 13 is still deemed as being served. 

I suppose my main issue is that while I've launched the complaints process, I'm currently being chased almost daily for the alleged rental arrears. I've been quite clear that I don't think I can be in arrears and that this should stop while the company processes my complaint, but I'm still getting threats of a) a money judgement against me for the arrears, and b) an indemnity for all legal costs of likely more than £500. How likely is this? I've been told I can't go to the Ombudsman until I've completed the internal complaints procedure. 

Thank you again!

Thanks for the clarifications. 
- Re holding deposit, see if you can check from your own records. Ultimately this should be put towards rent or returned, so isn't really part of the s13 debate. Check your own bank statements to see if you had paid a holding deposit which wasn't then returned nor credited towards any other payments. Then depending on how spiky you're feeling, either write asking for it to be returned within 7 days per the Tenant Fees Act 2019 or credited towards your next month's rent. There's steep fine for the LL if they breach the TFA, so if they are smart they wouldn't risk claiming it was credited to a shaky rental increase. 

- Re section 13, it is deemed served if they actually posted it, but they can't prove that they didn't just forget to pop it in the post. They could have evidenced by going into a post office and asking for normal post and gotten a receipt. This is very normal, I do whenever there is a critical thing to send (which is everytime, if its not critical it would probably be an email!) Also not legally required but if they had any other communication (eg email, text) about the notice, it might give more credence to the fact that they did put it in the post, but if there's nothing, I can't see any reason to think it is > 50% likely to have been sent. 

Do complain about the threats, but try to ignore them too - they likely won't get legal costs beyond just the court filing fee, since its a civil claim and you had a legitimate dispute on whether the money is owed, so no unreasonable behaviour. 

NEXT STEPS: 
However the complaint is really against the agent, while the arrears (or lack thereof) are really between you and the LL, so you still need to address that. Perhaps email them formally stating you have not received any S13 notice and in the absence of normal proof of postage, you do not believe it was sent. You will continue paying the agreed rent (lower amount) and if they would like to increase it then you suggest they serve a S13 notice now. 

[I wouldn't normally suggest prompting the LL to increase your rent, but on this occasion it'll give you an opportunity to dispute at tribunal and then make sure the ongoing rent is at a reasoanble level (don't tell them this initially though). That way the dispute is capped at a few months worth of increase, your stress levels are reduced and you avoid the risk of the arrears escalating to eviction.. not that they would necessarily win, but its a complication you don't need.]