Serving a Section 21 Notice and the Tenancy Deposit Scheme

FlorayG

E201 said:

I’m on good terms with the tenant. I have just offered to give back the full deposit but they have declined saying:

‘May it’s better first we move out and clear the flat totally. After that you can come and check the flat if you are happy with everything then i will give you my account details.’

It looks like I won’t be able to evict them using section 21 and therefore unable to sell the property. The tenancy agreement runs until April 2026. Will I still be unable to evict them at that point? 

Sounds to me like your tenant  clearly understands their situation. If they won't accept return of the deposit you can't evict them. When the AST runs out makes no difference, you still can't evict them
If you are desperate to get them out and sell then £££££ offered to them to help them move is your only recourse (that's on top of returning the deposit)
Also, if your agreement runs until April 2026 on an AST you can't evict them ANYWAY, that's the whole point of an AST, it gives security to the tenant until it expires

E201

FlorayG said:

E201 said:

I’m on good terms with the tenant. I have just offered to give back the full deposit but they have declined saying:

‘May it’s better first we move out and clear the flat totally. After that you can come and check the flat if you are happy with everything then i will give you my account details.’

It looks like I won’t be able to evict them using section 21 and therefore unable to sell the property. The tenancy agreement runs until April 2026. Will I still be unable to evict them at that point? 

Sounds to me like your tenant  clearly understands their situation. If they won't accept return of the deposit you can't evict them. When the AST runs out makes no difference, you still can't evict them
If you are desperate to get them out and sell then £££££ offered to them to help them move is your only recourse (that's on top of returning the deposit)
Also, if your agreement runs until April 2026 on an AST you can't evict them ANYWAY, that's the whole point of an AST, it gives security to the tenant until it expires

Thanks for the reply and suggestions. It sounds like I'm in a difficult situation.

E201

RHemmings said:

https://www.talbotslaw.co.uk/site/section-21-notice-uprotected-deposit/

The relevant parts of the above are:

What if a landlord has not protected the deposit within the requisite time frame or not provided the prescribed information to the tenant?

If the deposit was not protected within 30 days of it being received by the landlord, then the landlord will be unable to serve a Section 21 Notice on the tenant, even if the landlord takes steps to protect the deposit after the expiry of the deadline, because the landlord will have failed to comply with their obligations within the requisite period.

This will also be the case if the landlord does not provide the prescribed information to the tenant within 30 days of receiving the deposit.

To serve a Section 21 Notice in the above circumstances, a landlord will be required to return the deposit to the tenant in full before they can serve a Section 21 Notice. However, the landlord will be unable to rely on the accelerated possession procedure and will instead have to issue a standard possession claim once the notice period within the Section 21 Notice comes to an end. A landlord will have to prove to the Court that the tenant has received the deposit, and the landlord may encounter issues if the tenant declines to accept the deposit back.

If the tenant refuses to accept the deposit, then a landlord will be unable to serve a Section 21 Notice and a landlord will only be able to progress a claim for possession based on a Section 8 Notice, which can only be served if there are relevant grounds to do so.

Thanks for this- very useful. I'm in a pickle with this..

RedFraggle

May be helpful to outline why you want them to move out

theartfullodger

Get some education or training?  

There's no requirement for a landlord to take any deposit - you can always sue tenant for unpaid rent or damage....

E201

theartfullodger said:

Get some education or training?  

There's no requirement for a landlord to take any deposit - you can always sue tenant for unpaid rent or damage....

I'm kind of looking to get out of the buy to let market after 20 years so I don't think I can do any training at this stage. The tenants have been very good with the rent payments and to be honest have been very good overall over the last 8 years.  When I wrote to them giving 2 months notice (as on our AST) they asked me to issue them with a Section 21 as they applied to the council as a potential homeless case. I wish I had protected the deposit in the first 30 days - just a careless mistake on my part. Our AST runs from March 2023 to March 2026 with a break clause allowing for 2 months notice.

E201

RedFraggle said:

May be helpful to outline why you want them to move out

I am looking to sell the property. The end of the mortgage term is approaching and the sale of the flat was the plan to pay it off.  

RedFraggle

Doesn't look like you have any grounds to get them to leave. You're unfortunately in a position where you've signed an AST with no break clause that exceeds the end date of your current mortgage term. The two months notice is irrelevant at this point in your AST as it doesn't have a break clause. Hindsight is a wonderful thing but hopefully still a lesson to others. 
I'd suggest you look to sell it tenanted and take a hit on the asking price for doing so. 

RHemmings

If your tenants are wanting to apply to the council as homeless, then they can't move out too easily or they may be judged to have made themselves intentionally homeless. 

PRAISETHESUN

If the tenant agrees to move out by mutual surrender of the tenancy then S21 is not needed. If they won't agree then you're in a very tough spot. Could be a situation where you have to be generous and offer them something extra (£££) to leave