Section 21 Notice but Deposit not protected

MissMoneypenny

MissMoneypenny wrote: »

"Where a shorthold assured tenancy started after 6 April 2007, i) the deposit must be held by the landlord in one of the approved tenancy deposit schemes, within 14 days of receiving it and ii) the landlord is to give prescribed information about this to the tenant.
Now, where the landlord fails to do either or both of these, the landlord may not give a HA 1988 s.21 Notice. Any putative notice served is invalid, even if the landlord then later complies with the scheme. Moreover, any s.21 Notice signed at the beginning of the tenancy, or with the tenancy agreement (as very many are) is invalid, as the deposit is not (yet) held in compliance with the scheme and the requisite information not (yet) provided to the tenant."
http://nearlylegal.co.uk/blog/index.php?s=shorthold

Unless I am reading this incorrectly, it seems that the following is the "prescribed information" that the tenant should be given by the LL within 14 days of the deposit being given, to fulfill the above criteria required by the law:-

"Prescribed information relating to tenancy deposits

2.—(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)—
(a) the name, address, telephone number, e-mail address and any fax number of the scheme administrator(2) of the authorised tenancy deposit scheme(3) applying to the deposit;
(b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act(4);
(c) the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy(5) (“the tenancy”);
(d) the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;
(e) the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;
(f) the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and
(g) the following information in connection with the tenancy in respect of which the deposit has been paid—
(i) the amount of the deposit paid;
(ii) the address of the property to which the tenancy relates;
(iii) the name, address, telephone number, and any e-mail address or fax number of the landlord;
(iv) the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;
(v) the name, address, telephone number and any e-mail address or fax number of any relevant person;
(vi) the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and
(vii) confirmation (in the form of a certificate signed by the landlord) that—
(aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit."
http://www.opsi.gov.uk/si/si2007/uksi_20070797_en_1

The 213 (5) of the Housing Act 2004 referred to in the above quote, can be found here:-
http://www.england-legislation.hmso.gov.uk/acts/acts2004/ukpga_20040034_en_19

clutton_2

the scheme that i use supply all this in one leaflet, i just download it and give it to the tenant.

MissMoneypenny

clutton wrote: »

the scheme that i use supply all this in one leaflet, i just download it and give it to the tenant.

With all the required information on I assume? I wonder why more LLs/EAs don't do that within the 14 days? It would save them a lot of hassle later.

clutton_2

i use Deposit Protection Service - they publish a "Terms and Conditions" which tells you everything you need to know in 6 pages. i bet tenants won't be bothered to read the "small print" tho !!!
they even posted me a dozen copies on request so i did not even have to print them out !!

speedtwin

MissMoneypenny wrote: »

With all the required information on I assume? I wonder why more LLs/EAs don't do that within the 14 days? It would save them a lot of hassle later.

Because anyone can set themselves up as a agent and some are too lazy or cant be bothered to keep on top of the changes in law.

That is not a dig at all agents some do know their stuff and if not will find out.

Del_Boy_Gupta

MissMoneypenny wrote: »

Unfortunately, I think it might be correct.:eek:

From Shelters site:-



"What if I paid a deposit before 6 April 2007? If your tenancy started before 6 April 2007, then you will not normally be protected by the scheme. However, if you have been given a new tenancy agreement since that date, you should get advice. In this situation, the law does not specifically say that your landlord has to protect your deposit, but the Government has suggested that they should do so. An adviser may be able to help you come to an agreement with your landlord."
http://england.shelter.org.uk/advice/advice-7507.cfm?r=gaw&WT.srch=1&gclid=COfh0InX8ZACFRlWMAodXCHBsQ#wipLive-34145-3

Can anyone clarify whether this is correct. In my situation the tenants paid a deposit back when the initial 6 month agreement started in June 2006- the contract was renewed in December 2006 even though at this time the tenant was in arrears. This contract ran out in June 2007 at which point the tenancy continued on a rolling non contract basis until November 2007 when the tenant wanted a new one as they receive benefits. At this point the rent was increased by 2.5% however the tenant has yet to pay the increase in rent applicable for the deposit and they are 2months behind in rent.

As such given that they have not paid the deposit in full as it stands currently but merely as it stood for the old agreement does the deposit need to be protected in a deposit scheme? If not can I still issue them with a S21 order in 2 months time to coincide with the end date of the contract or will it not be valid?

MissMoneypenny

clutton wrote: »

i use Deposit Protection Service - they publish a "Terms and Conditions" which tells you everything you need to know in 6 pages. i bet tenants won't be bothered to read the "small print" tho !!!
they even posted me a dozen copies on request so i did not even have to print them out !!

1, The LL gets to choose the deposit scheme, not the tenant, so it would be in the LLs interest to read the terms and conditions before they choose a scheme.

2. Are these terms and conditions part of the "prescribed information" that the LL is required by law to give to their tenant, within 14 days of receiving the deposit (or the lose the right to use a Section 21)?

silvercar

You can protect a deposit online with mydeposits.co.uk, so you can sort the problem immediately. As it happened that deposit company then had a problem with their admin and didn't take payments, that had to be paid agian later on, so you could get round the delay.

Can anyone clarify whether this is correct. In my situation the tenants paid a deposit back when the initial 6 month agreement started in June 2006- the contract was renewed in December 2006 even though at this time the tenant was in arrears. This contract ran out in June 2007 at which point the tenancy continued on a rolling non contract basis until November 2007 when the tenant wanted a new one as they receive benefits. At this point the rent was increased by 2.5% however the tenant has yet to pay the increase in rent applicable for the deposit and they are 2months behind in rent.

As such given that they have not paid the deposit in full as it stands currently but merely as it stood for the old agreement does the deposit need to be protected in a deposit scheme? If not can I still issue them with a S21 order in 2 months time to coincide with the end date of the contract or will it not be valid?

If a contract is renewed post April 2007, the original deposit need protecting. If the contract is not renewed and becomes a periodic contract the deposit doesn't need protecting.

Following a rent increase it is not normal practice to require the deposit to be topped up. The original amount still stands. This amount should be protected as the contract has been renewed.

In your position, I would protect the deposit ASAP and then issue a section 21 if you want the tenants to leave at the end of the contract.

MissMoneypenny

silvercar wrote: »

In your position, I would protect the deposit ASAP and then issue a section 21 if you want the tenants to leave at the end of the contract.

LLs had to do 2 things.

1.Protect the deposit within 14 days of receiving the deposit

and

2. Provide the tenant and any relevant person (from reading the act, imho this relevant person can be the person who gave the tenant the deposit) with "prescribed information" required by law, within 14 days of receiving the deposit. It appears that LLs would have been told what the prescribed information was when they joined a scheme.

Both conditions have to be met in order for a LL to be allowed to serve a Section 21.

MissMoneypenny

silvercar wrote: »

As it happened that deposit company then had a problem with their admin and didn't take payments, that had to be paid agian later on, so you could get round the delay.

How could a LL get around not supplying the "prescribed information" to their tenant within 14 days of receiving the deposit?