Section 21 Notice but Deposit not protected

danielson81

If we got all the deposit back, would it be worth still claiming back 3x amount of deposit? Would a court just think we are being greedy?

MissMoneypenny

Tori_Bellatrix wrote: »

Hmmmm ... That's very interesting and I'm sure that wording has changed recently. I remember speaking to an adviser back in early December and she was quite categoric in her view that a deposit paid prior to 1/04/07 should be protected if a new AST has been signed.

I don't know what to think now .... :doh:

It seems from the quote in the opening post, that the deposit should be in the scheme. The solicitors site I linked seemed to think that unless the deposit was returned and then given straight back to the LL when a new contract was signed, then it was not protected. Shelter seem to be sitting on the wall. But the deposit protection scheme seem to have this covered "What happens if a tenant renews their contract after 6 April 2007?":-

"If the tenant decides to remain in his existing rented property beyond the initial fixed term, how the deposit is treated will depend on how the tenancy is continued: For a statutory periodic tenancy (i.e. the tenancy continues with no new Agreement):

• TDP will not apply, as a new AST has not been created.

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 continue to hold it as security in respect of the new tenancy it must be protected."

http://www.depositprotection.com/Public/FAQs.aspx

I think clutton has the right idea - LLs need to put the deposit in a scheme within 14 days, just to be sure. And of course, make sure that the other condition is met too with 14 days, in order to be allowed to serve a Section 21.

silvercar

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

Lost in the post?

I accept your post, but logic would then say that if you had failed to protect within 14 days you can never use a section 21 and then you might as well say that if you haven't protected the deposit immediately you might as well not bother.

The fact is that there have been admin failings with a couple of the deposit schemes and there has also been some debate about whether renewing contracts required deposit protection, so I can't see a judge thrwoing out a section 21 just because the tenant didn't receive notification of a protected deposit.

Debt_Free_Chick

silvercar wrote: »

I can't see a judge thrwoing out a section 21 just because the tenant didn't receive notification of a protected deposit.

I think you have a point there.

My understanding of the position in law is .... The deposit is either protected or it's not. If it's protected, then the LL has complied with the law.

Sending details actually doesn't prove that the deposit IS protected ... it just gives details of "a" TDS scheme, which the LL may have used or may not have.

And if the requirement is to "send" the details, then ideally the LL only needs to provide proof of postage. Proof of delivery is not necessary in law - IF the requirement is to send the details to the tenant.

MissMoneypenny

silvercar wrote: »

Lost in the post?

A Barrister once told me that judges hear that one all the time, and don't wear it. Of course, the LL will have proof of postage or sent it special delivery as it is so important to him. Won't he?

silvercar wrote: »

I accept your post, but logic would then say that if you had failed to protect within 14 days you can never use a section 21 and then you might as well say that if you haven't protected the deposit immediately you might as well not bother.

Not immediately, LLs have 14 days. However, it would appear that logic is correct. LLs do have to fulfill both part of the conditions required under the 2007 amendment to the 2004 Housing Act, or lose their right to lose a Section 21. How hard is that to do anyway?

silvercar wrote: »

The fact is that there have been admin failings with a couple of the deposit schemes

LLs don't know any of the Prescribed Information???? I have listed this on page 2 and given the link. I understand from cluttons post, that deatils are sent when the LL registers with a scheme.

silvercar wrote: »

and there has also been some debate about whether renewing contracts required deposit protection,

Common sense would say that when a contract ends, then the deposit should be returned. A new contract is a new contract. If the LL decides to keep the old deposit for the new deposit, then that deposit is for the new contract as the old one has finished. How a judge will read the law, will be interesting.

silvercar wrote: »

so I can't see a judge thrwoing out a section 21 just because the tenant didn't receive notification of a protected deposit.

The law seems quite clear on that, that it should be thrown out. Time will tell. Of course, if a tenant is unaware that their LL has failed to comply with the law, then that is a different matter.

MissMoneypenny

Debt_Free_Chick wrote: »

My understanding of the position in law is .... The deposit is either protected or it's not. If it's protected, then the LL has complied with the law.

My understanding is that the LL has to have fulfilled both parts of the law - protected the deposit and given the tenant the Prescribed Information - both within 14 days of the deposit being received.
http://www.opsi.gov.uk/si/si2007/uksi_20070797_en_1

http://www.england-legislation.hmso....20040034_en_19

MissMoneypenny

silvercar wrote: »

Lost in the post?

I accept your post, but logic would then say that if you had failed to protect within 14 days you can never use a section 21 and then you might as well say that if you haven't protected the deposit immediately you might as well not bother.

I forgot to answer the latter part of that. If a LL doesn't bother to put the deposit in a scheme, then the court can order the LL to either put the deposit in a scheme or return it to the tenant. The judge must then order the LL to pay the tenant 3x the amount of the deposit.
http://www.england-legislation.hmso.gov.uk/acts/acts2004/ukpga_20040034_en_19
Section 214 (2) (3) and (4)

Debt_Free_Chick

MissMoneypenny wrote: »

My understanding is that the LL has to have fulfilled both parts of the law - protected the deposit and given the tenant the Prescribed Information - both within 14 days of the deposit being received.
http://www.opsi.gov.uk/si/si2007/uksi_20070797_en_1

http://www.england-legislation.hmso....20040034_en_19

Yes it seems that they do have to do both - protect AND give the prescribed information.

So .... LL's had better have proof of posting, then!

Interestingly, even when a deposit is protected, the "fine" of 3 months rent "must" according to the legislation be imposed, if the LL fails to give the information.

LLs beware!!

MissMoneypenny

Debt_Free_Chick wrote: »

Interestingly, even when a deposit is protected, the "fine" of 3 months rent "must" according to the legislation be imposed, if the LL fails to give the information.

LLs beware!!

Good spot. I missed that bit.

silvercar

Missmoneypenny wrote:

Common sense would say that when a contract ends, then the deposit should be returned. A new contract is a new contract. If the LL decides to keep the old deposit for the new deposit, then that deposit is for the new contract as the old one has finished. How a judge will read the law, will be interesting.

Is that common practice? So a long standing tenant of say 5 years would every year have an inspection, deposit deductions, balance returned, pay new deposit and LL protect it?

I would have thought that the original deposit will remain the deposit for the whole length of the tenancy. If a contract is renewed after April 2007 the original deposit will be protected as opposed to a new one.

Bearing in mind the confusion on renewing tenancies from landlord associations, CAB and places like Shelter when the new law first came in, added to which the admin problems of the deposit companies, I can't see a judge throwing out a section 21 notice in say 2011 because the landlord took longer than 14 days to notify the tenant of the depost protection in May 2007.