Section 21 and late deposit protection

jr2025

Ok, deposit protected late on initial tenancy (in 2020) but new tenancy agreed some time later.

Is a section 21 notice prohibited until deposit returned or a section 214(1) claim resolved?

Shelter, for example:

https://england.shelter.org.uk/professional_resources/legal/possession_and_eviction/notices_in_possession_proceedings/what_makes_a_section_21_notice_invalid

Under 'Renewal of tenancies', state:

"If the tenancy is replaced by a new tenancy (a statutory periodic tenancy or a new fixed term) while the deposit was protected in an authorised scheme, the deposit protection rules are met for the new tenancy if the:[9]

• landlord and tenant are the same

• premises are the same or substantially the same

• deposit was protected during the previous tenancy

• prescribed information was given during the previous tenancy

• deposit with the same scheme as when the prescribed information was given

The conditions apply if there has been a further fixed term or periodic tenancy between the original and current tenancy.

If the conditions are met, the landlord is able to serve a valid section 21 notice as the deposit protection requirements are deemed to have been fulfilled in relation to the new tenancy. This applies even if the deposit was protected, or the prescribed information was served, outside of the required time limits in the original tenancy."

No mention of refunding deposit first.

Citizens advice simply state:

"If your landlord didn’t protect your deposit or they protected it late, your section 21 notice won’t be valid - unless they’ve already given your deposit back to you."

Which is supported by this this artice:

https://england.landlordsguild.com/article/tenancy-deposits-and-serving-a-section-21-notice/

Under 'Tenancy Deposits On or After 6 April 2012', it says:

"Section 213(3) requires the deposit to be protected within 30 days. Therefore, as a result, once 30 days have passed, that’s it." and continues with the provisions for return of deposit or claim resolved before Section 21 valid.

In summary, Shelter (and a few others) seem to be saying that applying the provisions in Section 215(B) 'cures' a late deposit protection and allows a Section 21 notice to be validly served. 

If this were true then a landlord who protected a deposit late would only need wait for the tenancy to become periodic, it's now a new tenancy and Bob's your Section 21.

My understanding is that Section 215(B) was added to prevent multiple claims for breaches of deposit protection rules when it's the same tenant/landlord/property.

Sorry, long post, but I'm confuddled.

FlorayG

I think "

• deposit was protected during the previous tenancy

means "If it was CORRECTLY protected during the previous tenancy"
I bet if you were to query their statement that's what they would say

theartfullodger

jr2025 said:

Ok, deposit protected late on initial tenancy (in 2020) but new tenancy agreed some time later.

Is a section 21 notice prohibited until deposit returned or a section 214(1) claim resolved?

• ....

A landlord is not prohibited from serving an s21 notice at any time. The issue is, is that s21 valid. You can serve one this afternoon with an expiry date of tomorrow, there's no prohibition on doing so.

An s21, even if valid (many many are not) does not end a tenancy nor compel tenant to leave.

However that only becomes an issue if the matter gets to court.  Many many tenants simply leave by expiry date of s21, even though they don't have to. Many more leave after court papers arrive (again they don't have to).  i.e. just serving one may get what you want.

(Different legislation in Scotland after the scottish equivalent s21 was abolished) but when selling 3 houses there (one a year to reduce CGT - selling due to health & distance - 500miles+ each way)  I simply explained, calmly, friendly & politely, what I wanted to do, infirmed them I'd be flexible on timing (could be very quick or slow..) and would provide excellent references (justified) and the matter was sorted without needing any legal notices or court/tribunal. And it's cheaper than the court route! I'm still a landlord in England. 

Strange how so many landlords and agents seem seem to prefer the formal, legal, shock-tactic approach.

Best regards to all.  

See these useful checklists...
https://nearlylegal.co.uk/section-21-flowchart/
&
https://england.shelter.org.uk/housing_advice/eviction/section_21_eviction/how_to_check_a_section_21_notice_is_valid

jr2025

theartfullodger said:

A landlord is not prohibited from serving an s21 notice at any time. The issue is, is that s21 valid. You can serve one this afternoon with an expiry date of tomorrow, there's no prohibition on doing so.

That's true but even the legislation doesn't split hairs 😀

215(1A) "...no section 21 notice may be given..."

My conclusion is thet Shelter are wrong, which isn't helpful.

jr2025

FlorayG said:

I think "

• deposit was protected during the previous tenancy

means "If it was CORRECTLY protected during the previous tenancy"
I bet if you were to query their statement that's what they would say

I think they get that condition from Section 215B(1)(b) which states:

"the initial requirements of an authorised scheme have been complied with by the landlord in relation to the deposit (ignoring any requirement to take particular steps within any specified period),"

Here's a law firm :

https://hanne.co.uk/section-21-notices/

Under "2. Is the tenancy deposit late?"

"If it was protected late – for most renters, late protection would mean more than 30 days after the most recent contract started, then a landlord will not be able to serve a valid Section 21 Notice unless the tenants’ deposit money is returned first."

The bit in bold is essentially saying "Ignore any late deposit protection breach in initial tenancy, it's all fine and dandy now."

🤔

jr2025

For the benefit of anyone researching this, I think it's safe to conclude that if your tenancy deposit was protected late and it's not been refunded or a 'late deposit claim' has concluded then any section 21 notice is invalid, and that's regardless of any periodic or fixed term renewals.

The Landlords Guild article:

https://england.landlordsguild.com/article/tenancy-deposits-and-serving-a-section-21-notice/

is the most concise explanation I've found and takes you through every relevant piece of the legislation.

Shelter's take on this is wrong, it is not 30 days after your 'most recent contract', it's 30 days after you paid your deposit. I suspect AI has done their research and it's picked up on some law firms articles that aren't correct, or at least contradictory to the vast majority of others.

So, be careful which 'Independent legal advice' you seek.