Section 21 Notice but Deposit not protected

danielson81

Hi there,

Me and 2 other friends have been renting a house since July 2006, every six months we have signed a new Assured Shorthold Tenancy Agreement. I phoned up last week about renewing from 17th Jan 07 to 17th July 2007 and said they would put it in writing.

Today we received a letter saying we had two months to vacate the property. However as our deposit is not protected (if it is we have not been notified!) I noticed the landlord (or letting agency) cannot issue a Section 21 Notice. From depositprotection.com

a) Unable to use 'notice only'
Currently, a landlord can regain possession of the property after the first six months of an AST, providing any fixed term has expired and the tenant has been given at least two months' written notice (under Section 21 of the Housing Act 1988). This right to repossession using the usual 'notice only grounds' will be lost if the deposit has not been safeguarded in an authorised scheme and the prescribed information passed onto the tenant within 14 days.

Firstly we are going to ask nicely if we can stay till July, if we did threaten this what could the landlord do to evict us? I am also aware that the deposit would possibly have to be repaid at 3 times the amount we paid, if we went to court.

I imagine if I did go down this route they would say it started in July 2006 and the law doesn't apply. However:

For a replacement / renewal tenancy:

This is a new AST and so TDP will apply. The deposit previously paid under the earlier tenancy is repayable to the tenant at the end of that tenancy, so it should be returned to the tenant. Alternatively, if the landlord wishes to continu to hold it as security in respect of the new tenancy it must be protected.
A copy of the first page of our AST is here (with some details blacked out!):

http://i194.photobucket.com/albums/z70/danielson81/astagreement.jpg

To cut a long story short, is it worth fighting this to stay through to July? We have been good tenants, the letting agency said themselves.

However what if it is protected and they haven't told us?


Any advice is welcome!

clutton_2

your tenancy agreement is unreadable you will need to type in the bits you want;us ;to read.

You certainly should have had your deposit protected for any tenancy (new or renewal) signed after April 6th last year.

I would write an incredibly simple letter "Dear sirs, please inform me in writing which tenant deposit scheme is protecting my deposit of £x paid to you on ..... under the AST dated xxxxYours faithfully.

It will help your case enormously if you can get this in writing. .

Dont worry about the 2 months notice - no landlord can get you out without a court order anyway. If there is no deposit and there should have been, the judge will not grant a court order to evict you.

Stay calm, dont rush, get your facts together, and dont give the agents advance warning of what you plan.

Landlords have a legal duty to tell you which scheme they are using. They have to h ave lodged the deposit within 14 of signing the agreement/receiving the deposit. The deposit scheme normally write to the tenant direct. The landlord also has to have sent you the "prescribed information" within 14 days.

HOWEVER, there is one deposit scheme (there are 3) which i know had serious software problems initially and which were not informing the tenant personally - leaving it up to the landlord to tell the tenant where his deposit was lodged.

This is why you need to find out which scheme they used, if any.

danielson81

Thanks for your reply. Double click on the picture when it loads and it should grow.

However, found this under "Miscellaneous" on the contract, so it might be in a scheme, but we haven't been told. I will ring and ask them tomorrow.

Point 5.3 here: http://i194.photobucket.com/albums/z70/danielson81/astagreement2.jpg

If a Deposit is paid it shall be protected under a statutory tenancy deposit scheme by the Landlord and shall be to ensure performance of the tenants obligations and be repayable to the tenant after the end of the Tenancy but the Landlord (who must act reasonably) may retain any sums required as compensation for loss caused by any breach of obligation by the tenant, subject to provisions of the statutory tenancy deposit scheme.

Never mind

speedtwin

The bottom line is, if it wasnt protected and or the prescribed info not given a section 21 cannot be used so wait for court date defend it and win.. Or if the section 21 served before the deposit was protected itis invalid,

Tori_Bellatrix

Interesting OP, this is exactly what has happened to me. I've decided to move out when she has asked anyway even through I know that the S21 notice she has served is invalid. (which isn't even correctly written).

I'll bring in up if she insists on withholding parts of my deposit without good cause

clutton_2

""Or if the section 21 served before the deposit was protected itis invalid,""

speedtwin do you have legal link for this pls ?

speedtwin

I will dig it out tomorow

danielson81

Just spoke to Letting Agents,

Made a casual enquiry about the deposit, pretending I was ignorant and said as we first paid deposit before new law were we protected etc. (although our last renewal was a new six month AST on 16th July 2007)

Agent said "You should have no problems with your deposit as the recent inspection was fine, but no its not protected in a scheme"

Hmmm?

ruggedtoast

danielson81 wrote: »

Just spoke to Letting Agents,

Made a casual enquiry about the deposit, pretending I was ignorant and said as we first paid deposit before new law were we protected etc. (although our last renewal was a new six month AST on 16th July 2007)

Agent said "You should have no problems with your deposit as the recent inspection was fine, but no its not protected in a scheme"

Hmmm?

We're in the same situation with the 6 month ASTs. Last time we re-signed the letting company told us that the deposit would be transferred to the deposit protection scheme as we had signed a new tenancy. Havent received any notification of this yet though and it was 6 months ago

Debt_Free_Chick

danielson81 wrote: »

From depositprotection.com

a) Unable to use 'notice only'
Currently, a landlord can regain possession of the property after the first six months of an AST, providing any fixed term has expired and the tenant has been given at least two months' written notice (under Section 21 of the Housing Act 1988). This right to repossession using the usual 'notice only grounds' will be lost if the deposit has not been safeguarded in an authorised scheme and the prescribed information passed onto the tenant within 14 days.

Ignore this - it doesn't apply to you as you are still within your AST and the fixed term has not expired.

Firstly we are going to ask nicely if we can stay till July, if we did threaten this what could the landlord do to evict us? I am also aware that the deposit would possibly have to be repaid at 3 times the amount we paid, if we went to court.

Separate the two issues. My view is that the LL has given you a valid notice to quit. Now ...... you could ignore that, in which case he would need to get a Court Order, but you would then be faced with dealing with bailiffs, with a legal right to evict you.

I'll post separately re the notice to quit, but on the face of it - it appears to be valid. Note that the fixed term under your current AST doesn't end until 15 January.

I imagine if I did go down this route they would say it started in July 2006 and the law doesn't apply.

I can't see how anyone can claim that the AST started in July 2006 as you clearly have a new AST with a commencement date of 16 July 2007 and a fixed term of 6 months.

However:

For a replacement / renewal tenancy:

This is a new AST and so TDP will apply. The deposit previously paid under the earlier tenancy is repayable to the tenant at the end of that tenancy, so it should be returned to the tenant. Alternatively, if the landlord wishes to continu to hold it as security in respect of the new tenancy it must be protected.

Yes - this is a new AST and the TDP applies. But this is a separate matter to the notice to quit.

To cut a long story short, is it worth fighting this to stay through to July? We have been good tenants, the letting agency said themselves.

Well, you can try. But you can do nothing if the LL refuses. Afterall, we don't know why he wants to regain possession of the property. He may be intending to move back, or sell ... he may not have any intention of finding a new tenant. But you can only ask.

However what if it is protected and they haven't told us?

If it is protected, they should have sent you details of the protection within 14 days of paying the deposit.

However, if they haven't sent you details, it doesn't mean it's not protected. They might have protected the deposit, but failed to send you the details.

If the deposit is not protected you could be "nice" and point out their duty to protect it ... perhaps at the same time as you offer to stay on until July.

Or you could be "nasty" and simply apply to the Court to have the deposit protected - and the LL may well be fined. Clearly, you can't use this route if you want to stay until July.

HTH

Guy_Montag

Debt_Free_Chick wrote: »

[/i]

Ignore this - it doesn't apply to you as you are still within your AST and the fixed term has not expired.

I beg to differ...

a) Unable to use 'notice only'
Currently, a landlord can regain possession of the property after the first six months of an AST, providing any fixed term has expired and the tenant has been given at least two months' written notice (under Section 21 of the Housing Act 1988).

This just re-iterates the current legal position. That is to say that Section 21 of the Housing Act 1988 is still applicable

Unless you have not protected the deposit, in which case it cannot be used.

This right to repossession using the usual 'notice only grounds' will be lost if the deposit has not been safeguarded in an authorised scheme and the prescribed information passed onto the tenant within 14 days.

The notice to quite & the protection of the deposit are inextricably linked