I Haven’t Protected My Tenant’s Deposit, What Should I Do?

@Giles

If she had a single tenancy she is going to pay between 1x and 3x, there is case law for mitigation and culpability, but some claim firms run a racket of hiking charges if you don't approach them carefully.

It is really going to depend on the firm, I know some that charge very reasonable costs for what is essentially copy paste law and others that are obscene and get reported to the SRA and Ministry of Justice every time.

Some firms will walk away if there is a counterclaim or else ask the tenant to pay it, this may be enough to counter it, but there is a way to do it.

I can't advise more in this public forum but if you reach out to be privately I can review the case and do not charge for doing so.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Hi David

Im after some advise here too. Me and my partner were renting our house and unfortunately we're not aware of the deposit protection scheme.
We had a tenant who left the house in total mess, with broken doors, holes in the sealing and walls, totally ruined carpets, broken furniture, stolen TV and mattress etc. On top of this they didn't give us notice about moving out and just left a month earlier before agreement ended.
As the deposit was not protected, a year later we have received a letter from their instructed solicitor to settle the unpaid deposit claim.
Just so you know the deposit was not enough to cover all the damage, and we have photos of the damages also we had no contact details to contact them. Due to the fact that this happened during the lockdown, we had difficulty to sort the house up to the living standard for many months and if was vacant for a while.
Any advice would be appreciated.
Kind regards
Erica

@Erica

Advice is pretty much identical to that I gave Giles above.

I can't advise more in this public forum but if you reach out to be privately I can review the case and do not charge for doing so.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Dear David,

First of all, thank you for everything you do to help people with the answers to their problems.

I have got myself into a bit of a situation, regarding the non-protection of some tenants' deposit. Unfortunately the deposits were all taken over a long period of time before the tenants moved in, over a few months with different amounts received at different times. I gave them some leeway in paying up front. Unfortunately this dragged on and I did not receive all of the payments at once, with some right before they moved in. This is not an excuse for not protecting the deposit but my reason. I know I messed up by failing to do so.

During the course of the tenancy, the relationship between us soured somewhat, I am sure the tenants felt aggrieved to be paying a full rental amount during covid and nitpicked every little issue that was wrong with the house. I sough to remedy this asap and behaved decently and responsibly by getting all issues fixed asap.

There was an issue with water leaking during the tenancy caused by the tenancy over running the showers and causing water to leak to the kitchen ceiling below, short circuiting the electricity and damaging the smoke alarm. This caused electrical damage and as well as this, the house was not left clean on departure, with rubbish left for me to clean up and the house not returned in a condition they found it in, which was specified by the tenancy agreement.

So I made some deductions to their deposit. I received an email from one of the tenants asking me to confirm that the deposit was protected. I am worried about an incoming legal action they may take to punish me for the deductions.

I am considering a counter claim for the damage and breaching the tenancy agreement. Is this worthwhile if they make a letter before action. Do I have any mitigating circumstances, even though I acknowledge I messed up by not protecting the deposit.

Would appreciate any advice you can offer.

Kind regards

Roger

Hi, my dad has been renting a house out to his tenants for 4 years. He was still grieving at dealing with a lot of other issues when he put it up for tenancy. As such he failed to do the right leg work and has not had the deposit protected.
My dad has only come to realise this after going to issue a section 21 to his tenant, as he now needs to sell the house, and cannot as he hasn't got the deposit insurance.
How can this be resolved so that he can get the tenants their notice issued ASAP?
Thanks
Emma

@Emma

There are two issues here.

1. His desire to issue a Section 21 notice to evict the tenants without fault.

2. Failure to protect deposit which may render him liable to between 1x and 3x the deposit for each tenancy, including any Statutory Period Tenancy created in law if a tenant remained after the tenancy expired.

In order to issue a legally compliant S21 he needs to rectify any points of failure, this may be a current gas safety certificate, protecting the deposit, issuing the prescribed information for the Deposit Protection to the tenants, issuing the latest Government "How to Rent" document. He should also make sure that there are no prohibited fees under the Tenant Fees Act, these should be repaid to the tenant before issuing a new S21.

Note that Courts are managing huge backlogs of cases, so if the tenant does not leave at the end of the expiry of the S21 (currently 3 months notice) then he may wait 8 to 12 months to get the case before a Judge.

He needs to get in front of the deposit protection failure BEFORE they go to a claims company where the tenant will get less but the Landlord will pay far more because of legal cost.

The solution to both may be a settlement agreement, i.e. he pays the tenants to leave and he pays them between 1x and 3x the deposit per tenancy.

The Court is very binary on this, he either protected or his didn't but the amount will vary on culpability.

I may be able to help you if you contact me via the Personal Message part of the forum.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

I am the owner/occupier of the flat and I am using the master bedroom of the flat. I had a lodger using the sofa bed.
I have all the bills to prove I was living in the flat and paying all bills.

My lodger had a habit of locking herself out and on many occasions has called me in my office claiming she has left the keys and I had to come out to let her in. I also left a spare set of keys for her to give to the neighbor, but she did not give it to the neighbor and instead lost it. I had to change locks after this incident. Not only this she had a habit of keeping the window of the room open which opens into an open terrace through which anyone can easily come in. Despite my several warnings to her she continued to do so, putting my property at risk to be burgarled anytime.
One day She called me from my neighbor's phone, saying she had locked herself out again and wanted me to leave my office meeting to come and let her in as she had a flight to catch to Scotland and needed to leave for the airport by 4 pm latest. I was not happy about this, however I left my meeting and told her I was coming. I was on my way when she texted me from neighbour's phone that she has let herself in through the tiny window which she left open. Neighbour had helped push her in and in turn they broke the window. She promised to fix it, but it was broken and needed a replacement and not a fixing. She did not ask me my permission to enter my property through the window and if she had I would have not given her the permission because the window is too small to fit her and it was definite there would be irreparable damage to it if she forced herself inside through it. It is also illegal for her to enter my property in this manner.
Not only does she refuse liability for the broken window but has flatly refused to pay for the damage. The damaged window costs £795 to replace.
Now she has made a claim that she was a tenant and she wants 3 times her deposit back. I had signed a AST contract by mistake instead of a lodger contract and she is using this to make her claim. I also realsied that she had actually never paid me any deposit of £600 and told me she will pay me cash but later I forgot to take the cash from her and she never gave me any money. I presumed she had paid and it was much later I realised that she actually hasn't paid me any deposit.
She now has a "no win no fee"lawyer who wrote to me saying i should pay £2400 which i refused and the matter has been referred to the court. I am going to be re-presenting myself and I am wondering what my chances of winning are? Any advice on how I can best defend myself and I should do will be appreciated. Should I also hire a lawyer? It is very clear that she is loking to make easy money from me and sees this as a good opportunity...

@Mital

It is best not to give too much detail that may identify you here.

I have dealt with a number of claims of this sort, some where a lodger is "deemed" a tenant and some where they started as a Lodger and then Landlord moved out and some where Lodgers were trying it on. Ironically on one it was the Landlord who was on the sofa!

In law what matters is the the type of occupancy, I will need to see the agreement but if she did not have sole access to any part of the property and you lived with her then she is a lodger and not protected by the legislation.

If you contact me via the forum I can review your paperwork and construct a letter to dismiss her claim if she has not started claim yet.

As she has contacted a claim firm it is in your interest to act immediately, I have the two case laws that should make them back down, but you have contacted me very late in proceedings, my concern is that you may have missed Court deadlines. Either way we either inform the otherside why they have no case or you will do it on the day.

Please URGENTLY follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Hello David, I rented a house through an agent three years ago. I paid a deposit in two stages. The first payment of £2,500 was put in a tenancy deposit scheme but I wasn’t provided with the notification of this within 30 days and was never asked to sign the form myself. The second part of £900 hasn’t ever been protected.
I initially signed a year contract which went into a rolling contract and I understand from your advice to others that this would then count as two tenancies against which I can claim.
My question is whether I can make the claim against the agent as well as the landlord?
The agent signed the form that has since provided a deposit scheme notification although I haven’t signed it contrary to the guidelines.
From reading your blog I gather that this is a possibility if the agent signed the form on behalf of the landlord.
But does this have the potential to double the claim, effectively meaning I could claim against both parties for the same issue? Or is it more of a formality as to whose name is written on the claim form, and mean that both names would be named on the claim form rather than just the landlord’s name?

@Emma

For both amounts to count as a deposit they must be taken for the performance of the contract, but that would not usually include advance rent, there are a few exceptions to this but so unlikely not worth going into.

It is unusual for there to be two amounts like this unless the deposit was always £3400 and you were paying in installments.

The deposit cannot be more than 5 weeks rent for tenancies that started after May 2019, that then applied to all tenancies regardless of when they started, a year later.

Yes it counts as two tenancies.

The Landlord will need to provide evidence of you being served the Prescribed Information, they may have used a 3rd party company other than the agent to "serve" you or the agent may have had you sign what may be all or some of the PI within the tenancy agreement.

I always advise Landlord to keep it separate as an appendix to the tenancy agreement AFTER the deposit has been protected so that the reference number can be included in the tenancy agreement.

Since the Deregulation Act (2015) if the deposit was protected fully compliant with the law then all subsequent tenancies including SPT's would be protected, the money would need to have remained in the scheme for the whole time, if it was insurance based it must not have expired. Expiry is very common with sloppy agents.

You don't get to claim twice for the same thing from both parties, I generally advise the Tenant to go after the Landlord and the Landlord to go after the Agent if the terms of the Agent contract with the Landlord say they will handle the protection or if there are emails etc to the Landlord saying they will take care of it but they don't.

I assess each case upon it's own merits, if the agent has disappeared then why risk adding them if it may dilute the claim potential. On the other hand if the Landlord sells up and moves to Afghanistan then I might suggest just going after the Agent. It all depends on the evidence and situation.

If we find that the £2500 was protected then it is still possible to bring claim for the £900 if it meets the criteria of a deposit.

I would be happy to help you take this further, ideally with would be to settle the matter without going to Court, but if they will not engage then I can help you take it to Court too, unlike claim companies I do not charge for the help I provide so you do not lose 35% of the claim and you give the Landlord a real chance to save money.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Hello

I privately let for 5 months, unaware of the deposit scheme. Then had a leggings agency take over who had done a new tenancy and done a deposit scheme correctly, moving 4 months on the tenant is threatening to take us to court for not protecting the deposit in the previous tenancy agreement!

The tenant keeps kicking off every month about something or another and we have been dealing with every query. She will then apologise and carry on ok for a few weeks and the. Start again. She is a first time
Mum who had experienced a traumatic birth which she keeps bringing up everytime. Initially when they moved in they wanted to get in ASAP so the week we had vacant to professionals clean and repaint the house they rushed us out happily agreeing to paint and clear the old furnishings and clean them selves (we paid for the paint and the clean) but had put pictures on social media saying look at how a 5 month pregnant women was given a house!!! These were pics before they had cleaned or painted or emptied the house

She keeps threatening us every month to go to the tax man or take us to court or now about the deposit scheme in her PREVIOUS let. On one occasion has also said she wants to leave before her tenancy ends and doesn’t want to pay the fee (we even agreed to pay this to allow them to leave) but then turned around and chose to stay!

My question is, is her trying to take us to court for a previous tenancy agreement even valid? Considering they have relet with the managing agency with a new agreement where the deposit has been put into a scheme. Also I have read they need to dispute this at the end of any Tenancy within 3 months

Hello

We had rent a house for 5 months privately with and agreement but no scheme.

The tenants started to keep asking for things and would expect a response on the same day or works to start straight away. They had made some rude comments so to avoid this we had a management agency take over.

They done a new tenancy and put the deposit into a scheme. From August onwards. They had made some slip ups which were rectified quickly.

Every month she has been having a melt down and saying with her traumatic birth and some of the slip ups she’s getting stressed. She then cams down and apologises and then repeats this again. Any repairs or queries are dealt with accordingly and communicated via the agency. She has then demanded to leave before her tenancy and does not want to pay the fee to leave early which we have agreed to pay. THEN Ashe has changed her mind and wants to stay as it’s the best thing for her and the baby.

There is a req re the shower to get replaced. We have sent out a contractor, who has quoted and we have booked. There has been a week between each step due to agency being on leave and the contractor being busy but nonethe less it’s been dealt with.

Out of nowehere they have been putting up pictures on social media of the house in the condition she was given at 5 months. Please note from vacating the house to them moving in we had 10 days to empty the house of some old furnishings, paint and professional clean. The tenants were so eager to move in they happily agreed to get in a week early and do all this themselves. We have them money to cover the paint and clean!! So for them to slander us on social media about the state of the house for which they agreed to take is uncalled for

And since then have been threatening to take us to town/court over the deposit not being in a scheme with the first let that is now finished and over 3 months ago!

Not at any point have we ever mentioned their deposit

My question is do they have a valid case to go to court re the previous let and none deposit scheme? The deposit for that key was transferred to the agency who put in a scheme when they re signed a new let.

@Sam

First of all when you said

"She then cams down and apologises"

Is she in a self contained flat above you or in a bedroom of your house, perhaps with her own bathroom and kitchen?

@Sam

I will speak to you firmly for the sake of other existing or would be Landlords, please accept it as constructive advice that will probably save you money down the road.

If you rent a property to a tenant (not a lodger) you immediately are liable to the numerous Acts of Legislation and case law which are enforced by UK Courts and Tribunals.

You have to treat letting a property as a Business and this site can help you with doing what you are supposed to do. You can also read the Government How to Rent document and some Landlords attend courses run by the Housing Department for Landlord Licensing (even if they are not obligated to be licenced).

If you have to replace a boiler you would allocate that cost to the lifetime of your investment, you must take the same approach to repairs, adhering to legalities and generally complying with the law.

The most basic rights that will get you fined huge amounts are heating and hot water, failing to get a licence where required and deposit protection. You can also get big fines for charging prohibited fees (some dodgy agents are still doing this) and health n safety issues (fire and smoke alarms etc).

When your Tenant keeps asking for things you have to manage expectations, for some things you should respond in hours but if you can’t take the heat then using a decent Agent who is at least a member of ARLA. However, understand that you then become liable for mistakes the Agent makes.

So you admit you did not protect the deposit but it is not just protecting the deposit, the prescribed information needs to be provided and ideally signed by the tenant so you have evidence of service. The penalty for both failures is the same, it is an either/or not a penalty for both added up. That said, it is applied to each tenancy related to a deposit held for the property, once you fully comply with the law, as long as the deposit remains protected then subsequent tenancies are deemed as protected. However, beware because some Agents use insurance schemes and forget to renew, again you are liable for their mistakes.
You are complaining about the Tenant behaving in an entitled way or being very demanding, one would have thought you would be ecstatic at her desire to leave and might even pay her to go.

Now you might have some fees in your Tenancy Agreement, but these are often deemed as unfair contract terms, some can even get you fined £5000 if they are prohibited fees under the Tenant Fees Act 2019.

In these modern times when you can put a free listing on Openrent and have scores of potential tenants desperate to occupy tomorrow, it makes it very hard to justify any charge for when a tenant leaves early. In any event you are only able to charge for actual costs and such costs may be challenged if unfair or unreasonable. There is a whole page dedicated to this on this page:

https://www.propertyinvestmentproject.co.uk/blog/your-tenant-wants-leave-early/

If there is a catalogue of repairs then it is in your interest to deal with them because cumulatively they can make you look bad when in front of a judge on other matters, such as deposit protection.

She may have some mental health issues, she might have some anxiety or even postpartum depression, so try to deal with her calmly and in a reassuring way.

Unfortunately she is not gone until she surrenders the property back to you and even then with a demanding Tenant like this you need to make sure you have lots of written evidence. This is what I mean by managing expectations, when your tenant says she wants to leave, ask her to put the request in writing in an email to the agent.

In fact when she comes down for anything, start by saying “Hi, how are you, how is your baby, are you managing to get some sleep, how can I help you”. Then whatever she asks for, reply, “thanks for letting me know, can you please email the Agent as they are dealing with the day to day management of the property”. If they say they already did say to them “Ok great, can you please send them a chaser email and CC me on it”.

The agent does not sound very good, they should not be so small that someone going on holiday creates a delay. A shower is a critical thing to get repaired super quickly and a week between each step is not a standard that I would find acceptable. I would consider bigger Agents and better contractors, only award the contract to someone who can do it quickly and who has good record on TrustPilot, if they fail to do what they say they are going to do then they are in breach of contract and you can cancel and appoint a new contractor. That is the approach.

The lesson from letting them in early is that no good deed goes unpunished, but you got the rent from the day of occupation. If you are disturbed by the pictures appearing on social media then it kinda suggests that you should not have let it in that state. Paying them to do decoration is never going to be as good as a professional decorator.

We live in a world where people post all kinds of shit online, generally I would advise that you ignore it unless you are named but mostly do not give them the ammunition in the first place. It is not slander if they are telling the truth. As far as I am concerned Social Media itself is uncalled for, it damages children, creates a false sense of entitlement to be offended and outraged for the most pathetic things.

I would always advise seeking a settlement regarding deposit protection and this is something I can help you to negotiate.

To answer your question, she has six years from becoming aware of the failure to bring a claim against you, it can be for between 1x and 3x the deposit per unprotected tenancy.

I can help you write an email to encourage a settlement, I would urge you act quickly because you can be sure that at some point she will come across a claims company, most of these companies are all about generating fake fees, the legal system allows them to do this and it is sometimes more expensive to challenge costs than to pay the costs.

A lesson for other Landlords is not to pretend it has not happened, but to get in front of it. I can help you mitigate your culpability and if there are any legal loopholes I will advise accordingly.

To take this further it is best you contact me via the forum, as they may be reading this public blog.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Hi David.
Thank you for your response 838 on the 2nd of November to my message. I just saw it now and have messaged you privately via the forum.
Would be really grateful if you can assist as the court date is on the 3rd of December 2021.
Kind Regards
Mital

I bought the property off auction and the previous landlord is dead
He never served any certificates, neither EICR nor gas safety certificate and all this besides the fact I don’t know if he protected the deposit.

Can anyone please help me build a case so I can serve a legal section 21 notice?

I honestly would be so happy if anyone could help me!!!

Kind regards

Sandro

@Sandro Schneider

It is going to depends on what paperwork you have and what information you know. There are numerous options available.

On the face of it, for S21 route you just need to rectify all the things on the Section 21 form (these have been moved to the Notes in latest S21 Form).

There are two Section 21 pages that are essential reading on this site, this one explains the process

https://www.propertyinvestmentproject.co.uk/blog/section-21-notice-of-possession-order-form/

This page explains the difference between Section 21 and Section 21

https://www.propertyinvestmentproject.co.uk/blog/difference-between-section-8-and-section-21-notice/

If you go via the Section 8 route you need grounds for eviction, some of these are mandatory for a Judge to provide possession, this page lists the grounds and all the Section 8 issues

https://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/#grounds

If you want the Government page, this is it if you are in England or Wales

https://www.gov.uk/evicting-tenants/section-21-and-section-8-notices

To avoid making mistakes and for me to evaluate your actual case and take this further it is best you contact me via the forum, as they may be reading this public blog.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Hey David,

Firstly, want to say how great and detailed your responses have been. Actually above and beyond the quality of service I've seen from Citizens Advice. I'm deadly serious.

(To clarify I'm a tenant sharing with 3 others in a Shared Tenancy agreement)
I moved in about 3 years ago replacing someone moving out. Signed an Addendum Contract a month after moving in since the landlord didn't have it ready on moving day and they were already on the 'rolling contract' phase of the agreement (Main contract is for 1yr from May 2017. I signed the addendum June 2018). But no information about the deposit scheme or where it was kept were given. Fast forward to September 2021, we had a new contract drafted due to a slight increase in rent *and deposit*, again no information about the deposit scheme, so she's already late.

I have prompted multiple times over the year, in writing, for the deposit information. The latest was earlier this week. I even went as far as talking to Shelter, Citizen's Advice and talking to all 3 Deposit Scheme Holders to ask if there was any deposit on the address at all, let alone the current tenancy deposit. All said there was nothing on their records. So I don't know if it was ever protected.

I read through a lot of comments discussing actions to take to claim to court further down the line when you have the evidence that they've broken the Deposit Scheme Law but not WHILE being in the tenancy. Obviously won't take action on anything until I decide to move out in the future.

I'd like to know if this is a good enough indicator to follow up later down the line. What might happen if I leave but other tenants remain, will that compensation cover everyone, does everyone have to claim together as a group will it technically effect the tenants means to stay in the house?

Also, if she does end up covering the deposit, 60+, 90+ days later, would this still be grounds for following up too?

Appreciate your thoughts.
Many Thanks
Kenny

@Kenny

To give you absolute advice I need to see the paperwork.

You do not say what the term of the 2017 agreement was, if it was for a year it would have expired and become a Statutory Periodic Tenancy, or the SPT may have happened since unless the lease was a Contractual Periodic Tenancy.

The new tenancy will create a further breach if still no protection within 30 days.

I advise to do after to prevent retaliation eviction or damages but a claim must be brought within 6 years of becoming aware of the obligation to protect, you could not use concealment to extend to 12 years because you have already asked about the deposit protection.

The key to that retaliation is two inventory checklists produced by the Landlord in your presence before and after the tenancy.

The deposit must not exceed more than 5 weeks of the rent or she will be in breach of the Tenant Fees Act 2019.

Ideally you all bring the claim and share any sanctions, else they give permission else they could added as defendants and then excused so they get none of sanctions (if they are not party to the claim).

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

The law was changed so that even if they protect it late they are liable for breach but it is a good idea to protect as soon as possible for them to gain mitigation and afford you the right to free ADR provide by the Government authorised Deposit Protection Schemes.

It was then changed again in Deregulation Act 2015 so that if a tenancy is made to fully comply with the Act, including serving PI then as long as the deposit remains in the scheme then there will be no sanctions for later tenancies that are substantially the same.

The onus is on HER to prove protection; I can give you method to satisfy a Court if it was never protected.

To avoid making mistakes and for me to evaluate your actual case and take this further it is best you contact me via the forum, as they may be reading this public blog.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Hi David,
I wonder if you could advise on my situation. My elderly mother & father own a rented house. They have had a tenant in for 17 months. They have a rolling 6month agreement. They left all of their belongings in the property and left it in an awful state. They didn’t give any warning of leaving and my parents had no idea they had left until they received a solicitors letter demanding £3500 in compensation as they’d not protected the bond. They didn’t once ask about protecting the bond during their time in the house and they left owing a month’s rent and council tax in arrears. My father has been in hospital for the last six months and my mum has no clue about this subject. She has offered the bond back to try and get rid of the situation but they are now threatening county court. It seems so unfair. She is a novice landlord that has made a genuine mistake and the tenant is clearly a rogue. Please can you offer any advice?
Many thanks

@Mark

You need to act really quicky and contact me via the forum.

Please follow the instructions on post 814 on how to contact me and I will message you with the way forward.

Meanwhile send them a holding email explaining that her husband is in hospital and she is seeking legal advice.

I will then help her achieve a reasonable settlement and try to avoid this going to Court. It all depends on who we are dealing with and I can't give too much about named firms on a public blog.

Hello David, I hope you can advise me.
I had a tenant of 6/7 years who would not sign a renewal 12 month AST agreement because they were buying a property and moving out at some time shortly. I offered a six month agreement and agreed to be flexible. They signed up. When the 6 months was due to expire they refused to sign a further renewal as there moving was imminent, although I offered a month to month. They continued to pay their rent on time for the next 2 months (Aug/Sept). Their October rent was late after some chasing. They did not pay their November rent and I had a property inspection done by a registered independent agent on the 4th of November. The tenants vacated the property on the 13th Nov without paying the rent. The property was left in a very poor condition which is verified by the agents report and photographic evidence when vacated.
On the 16th of November I emailed them and offered them their deposit of £875, less £406 rent arrears, a further £100 for the replacement of a broken bathroom basin and £150 to replace a completely broken fitted wardrobe unit. I offered to send them £219. This offer is really generous, as they even left a huge sofa behind and the decor was disgusting and far beyond reasonable wear and tear. They failed to respond to this email directly but somewhat incoherently by Whatsapp without making any specific demands. I did not lodge their deposit into a scheme and they have now requested a scheme number. It has cost me over £7000 to restore the property to enable a new tenant to move in.

@

As you have a live case I think it is better we discuss privately via the forum.

Please follow the instructions on post 814 on how to contact me and I will message you with your options.

In a nutshell the deposit legislation does not remove the liability of the tenant for performance of the contract.

However, this needs to be handled delicately.

My son has lived in a HMO for over 2 years (landlord does not live in the property)his landlord has asked him to move out as she is passing the 'business' to her son who does not like my son so she has decided it would be best for him to move out! It has now come to light that she did not place his deposit (£750) into the required scheme, can my son claim for this breach? All advice I can find relates to tenancy of a whole property. She has also not issued a Sect 21 notice just a letter and not given 2 months written notice.

Any advice would be great. Thank you

@Andrea

Assuming it is an HMO your son should have an Assured Shorthold Tenancy and even if one is not provided, the legislation will create one.

So yes indeed he has a claim for up to 3x the deposit per tenancy, including any Statutory Periodic Tenancy that may have been created by him remaining in the property after the tenancy expired (commonly referred to as month to month tenancy, legally a Statutory Periodic Tenancy created by Section 5 of the Housing Act 1988)

Nobody can be evicted without a Court order, any attempt to do so is deemed as Forced Eviction which carries fines and is a Criminal Offence potentially leading to up to two years in prison.

The letter itself will be considered by the Local Council as an act of Forced Eviction, but you do not need to involve them a this stage. If they put in writing that the their son does not like your son it may be considered harassment if it is too threatening.

If your son's Landlord has not obtained the proper Landlord License for the HMO then he may be entitled to claim a Rent Repayment Order of up to 12 months’ Rent. I can help him with explaining that.

There are two routes to a potential Court order, one is a Section 8 notice if the Landlord has grounds (e.g. non-payment of rent for at least 2 months) the other is a no fault eviction which requires the statutory form 6a that serves notice under Section 21. Explained at the following page on this website.

https://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/#grounds

The S21 has a number of pre-requisites, there is no hurry, so your son can wait for the invalid notice in the letter to expire and THEN email their Landlord saying:

"Further to your letter of February 28th 2022, I am sorry but I will NOT be vacating the property as you have not served the legally prescribed Section 21 notice, I will be pleased to leave upon expiry of such a notice after it is served."

There is no need to go into further detail, it is up to them to go to the .GOV website to download the latest version of the 6A and to make sure they do it right. If they do not get it right then again he can wait until the S21 notice expires and inform the Landlord why it is void and so they will have to start over.

IF your son is deemed as vulnerable as defined in the Housing Act (disability of some sort usually required) then the Council may eventually owe him a duty to housing and to consider he has a priority need. They should be informed when a legally valid S21 is served, but they will advise not to leave until they say or else the Tenant risks being considered intentionally homeless.

I would advise that your son stay where he is, does not rock the boat, does not bring the claim for the failure to protect until he has left the property (to prevent futile attempts to fake damages). He should behave as if all is wonderful and if he has any arrears they should be settled as soon as possible.

The Landlord will need to protect the deposit which will give your son access to ADR in the event of any dispute, they might return the deposit but that will not prevent them being liable. In fact it is often seen as a bad move by Judges because then the Court has to deal with any dispute and the whole purpose was to keep these disputes out of the Court.

With regard to advice on the whole property, that is no longer relevant, your son will have an element of exclusive possession, even if it is only his room. His landlord can't for example come into his room and sleep in his bed, because he has granted a lease and it provides for "quiet enjoyment of the property" whether that be his room (maybe with communal use of other areas) or whether it is the whole building.

We have a plethora of case law on sham licenses and other attempts by Landlords to circumvent the legislation, it never works and usually leads to the maximum sanctions and potentially with other punitive damages available to the Court.

As you have a live case I think it is better any further discussion privately via the forum to avoid you prejudicing your son's case.

Please follow the instructions on post 814 on how to contact me and I will message you with your son's options.

Hi David

I have a flat where the deposit has not been protected by the agent I was using
I now want to serve a section 21. the tenant is fully aware that the deposit has not been protected .I haven't got the tenants bank details to return the deposit. How can I give the deposit back so i can serve section 21 . can I suggest to send by registered post? or film pushing £50 notes into his letter box.

many Thanks

Harry Gold

Hi Harry

It is not a wise move to return the deposit, but to protect it as soon as you realise that it has not been protected.

If you return the deposit to the Tenant you deprive them of the free ADR service in the event of a dispute and even if there is no dispute I have seen Judges take that into account.

If the Tenant has not said you can't use email for service it is one way to give the prescribed information, you can also send the PI via registered post, probably not put your name on the back, if they decline to sign then that will be noted on the returned letter.

There are firms who will return the cash and video themselves doing so but I have seen that going very wrong because of GDPR, the Tenant comes out and has not consented to being filmed, things kick off and next thing you know it is harassment and that is a slippery slope to Forced Eviction. You always need to be seen as reasonable and sqeaky clean, in my experience cash return does not help nor does returning the deposit.

You are always better off seeking a settlement, get in front of it, blame the Agent and even sue them later if you had a full service or their website implies they will protect it (also check their terms and conditions).

The DPS is free so protect it now, then reach out to the Tenant and say you have recently discovered it was not protected by the Agent and you would like to compensate them for the inconveniance.

Then if they agree put the terms of the settlement in an agreement that settles all matters between the parties related to the property save damages as outlined in the lease. Even offer to provide a positive reference as part of the settlement, that can be worth something to them. When deciding settlement amount remember that the minimum they will get in Court is 1x the deposit.

Once you have protected the deposit and served the PI you have corrected the S21 defect (make sure you get this right, include a copy of the certificate, the terms of the scheme and any leaflet they produce.

Hi David,

My mum rents her 4 bedroom flat out, with each tenant on individual tenancy agreements. One tenant moved in and gave their month’s notice to terminate the 6 month contract after only 22 days in the flat. They gave no reason for termination, but my mum thought that since they would be leaving in a month she wouldn't go through the deposit protection process and just return it once they left. She returned the full deposit with no deductions soon after their departure, and they are now threatening to take legal action because it wasn’t protected.
What can she do? Is she likely to have to pay them compensation?

Thank you

@Phoebe

If the person left 22 days in and the deposit was returned within the first 30 days, then your mother would not have breached the legislation.

If she left 53 days in as you suggest then it would have needed to be protected. A Landlord can't just decide not to follow the law, the tenant could have just remained in the property.

I did have a case once where a foreign student was messed about and there was no property to rent, someone was literally sleeping in his bed.

So he cancelled the tenancy and moved elsewhere, the Agent then tried it on with all kinds of fake charges for loss of profit and other BS. The Landlord was a violent person and very upset when his Solicitor told him he should pay. In the end the Landlord "persuaded" the Agent to refund all monies and pay 3x the deposit without going to Court.

This was because it had cost the student a fortune, they had paid a lot up front and were messed around.

In your mother's case I can't see a Judge giving more than 1x the deposit, I can probably give you some case law to help you negotiate (follow the instructions on post 814 on how to contact me) but do not let it get to a claims company. I can write her a letter making the offer in such a way that if she refuses it then she might face cost consequences if she then goes to Court.

Now if your mother tried to breach consumer legislation and charged the Tenant all kinds of fees which represented more than her actual loss, then that might be why this happened and it might sway a Judge to hold her culpable for more.

I think your mother might find the following article helpful.

https://www.propertyinvestmentproject.co.uk/blog/your-tenant-wants-leave-early/

Other Landlords in this situation would be well advised to give the Tenant 24 hours notice for an inspection / inventory and return the deposit immediately or better still just protect it within 30 days, it is free at the DPS and takes minutes (when it works).

They also need to serve the Prescribed Information within the 30 days.

I have been saying for years that the Deposit Protection Schemes should be "flipped" so that the Tenant protects the deposit and names the Landlord, then the Landlord gets the notification and give the relevant scheme a copy of the tenancy or details.

This would work with the Government idea of a Floating Deposit that is passed from Landlord to Landlord (in terms of protection within a scheme). It would put an end to Deposit Protection Claims because it would become the responsibility of the Tenant.

Also it would make the schemes truly unbiased, right now they know that the Landlord is the decision maker when it comes to deciding which scheme to use and this is sometimes a factor in the ADR system.

I'm in this situation as a tenant. It appears my letting agent wants us out, they probably want to let the property for a higher rent. However, they realised they haven't protected the deposit years into the tenancy, and are trying to pay it back.

My question is, after they've paid it back, are they good to serve S21 or do they still not have that option as they didn't protect it when they should have (within 30 days)?

@Vincenzo

Regarding your Section 21, if you download the notes from the .GOV website for the Form 6a (which is the Section 21 notice) you will see all the things that can invalidate a S21. The deposit is something they CAN remedy by returning the deposit or by putting the deposit in an one of the three Government Approved Schemes. However for the S21 to be valid they need to have done these BEFORE the S21 was served.

It is the Landlord who is usually culpable for failure to protect the deposit, although the Deregulation Act 2015 allows an Agent to be added as a defendant their culpability will be likely be based on whether their website or terms implied to the Landlord that they would be responsible for all aspects of the legal compliance regarding deposits.

I always advise Landlords to protect the deposit no matter how late because if they give you the deposit back they deprive you of the free ADR provided within the scheme which could save them money on any alleged damages claim and face a lower sanction for the failure to protect the deposit. Some Judges just get annoyed that the case is before them and clogging up the legal system when if the Landlord had complied in the first place their time would not be wasted.

I advise Tenants not to bring a claim before they have left as it often encourages fake damages claims, so make sure you have photos and videos of the condition of the property before and after. If a Landlord/Agent does not do an inventory check in and check out with you present then they are going to struggle claiming damages.

If you want me to look into your claim and help you reach a settlement without going to Court, please follow the instructions on post 814 on how to contact me and I will message you privately with your options.

Hi really enjoy reading your blogs

I served a Section 8 on a tenant as she was 5 months worth of rent in arrears (February 2020). She was paying but not the full amount. However, her legal aid lawyer is counter claiming as if I'd served a Section 21 notice. Arguing deposit information not given and repairs not undertaken. I served the Section 8 as I thought over two months rent arrears was a slam dunk! Have you heard of this before? I realise that's it's a dragging the feet exercise and she will eventually go but it's now been over two years (obviously covid permitting). My question is if I had returned the deposit before serving the Section 8 could her lawyers still have used the deposit as a defence?
Many thanks

@JulesJohn

It looks like this is not your first rodeo!

I am not clear of the CURRENT situation because you are talking about arrears of 28 months ago (February 2020)?

A tenant is entitled to bring their Rent arrears up to date and if it is less than two months by the date of the next hearing you will lose the mandatory grounds and the Court will look favourably on the Tenant for bringing the arrears under control.

No doubt the Pandemic will be blamed for them not being able to reduce the arrears completely and they may say they are just getting back on their feet.

A Tenant is perfectly entitled to bring a Counter Claim and as Section 8 Eviction is on the Part 8 track it is all neat and tidy. It is a delaying tactic and will not usually affect the decision to evict unless the arrears are totally settled.

My advice to you would be to contact the Tenant directly and seek to settle the Deposit Protection issue so that you avoid paying their legal costs, which may be substantial.

Returning the deposit would have made no difference to their ability to issue a counterclaim, I always advise protecting the deposit, even at this late stage, it gives her access to the ADR system and saves you having to take her to Court if there are damages.

If you know for sure that there are substantial damages that you can prove (with VERY strong evidence) were not there before then you could try to add them to your claim to counter the deposit protection claim, but it just creates more legal fees. Don't consider faking this.

They are not using it as a defence to the S8, but rather asking for time to investigate their options for counterclaim and the Judge is happy to entertain that as an adjournment will likely see you settle. You might pay her between 1x and 3x the deposit per AST and/or SPT, some Landlords clear all their debt, but I have no idea as to the size of the arrears so hard to be objective.

If you are determined to see her gone then you might try to settle as an offset for some but not all of the rent owed, as long as there is at least 2 months owing your eviction should complete (3 or 4 to be safer).

This link explains the ground for Section 8, which are mandatory and which not. It is usual to bring multiple grounds, especially if you do not have mandatory grounds.

https://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/#grounds

Her "legal aid lawyer" may be a law centre that is engaged by the Council who will do anything to delay their housing duty to the Tenant.

Try to engage with the Tenant directly to discuss a settlement, if the tenant has children, a disability, a mental health condition or anything else that would make her vulnerable under the Housing Act, chances are that she wants you to evict her. If she leaves of her own accord, the Council will consider her intentionally homeless.

The Council can also imply the homeless intention because of the arrears, they may attach some sort of repayment schedule as a condition of putting her in temporary housing and they may delay housing her properly until the debt is repaid.

If you do not reach a settlement the Court will consider it all, typically the Tenant will end up paying your costs for the Eviction as long as paperwork is in order, they will get a CCJ for the net total, you will get the sanctions awarded against you and her costs, if either of you will settle within 28 days of Judgement you will avoid a CCJ.

You can ask the Judge to offset the Sanctions against the sum owed including your legal and Court costs to mitigate your loss.

Hi, really love this forum and glad I have found it.

I am a tenant who has just left our property after nearly 8 years, during this time we had a good relationship with our landlords however it has really soured upon leaving and they are refusing to return our rent for unreasonable reasons (essentially items left in garage that were there when we moved, which do not amount to £700 costs even if they were ours)

They have admitted in text our deposit was never protected, every 12-18 months one would pop round and we would sign 3 or 4 tenancy agreements (each one covering 6months) we were not given copies at any time. I can see now how naive we are to everything.

Whilst we can evidence no protection of deposit through texts what chances have we got of a claim? Thanks.

@Nelly

Essentially the process involves three things, the particulars of claim, the witness statement(s) and the evidence to back up your allegations.

What you would need is evidence of the different tenancies, this might include emails or texts with them arranging to come around to sign the tenancies.

There may be other emails or texts that help corroborate your position.

Also bank statements showing your payment of rent for the period in question.

I have an idea how you can get a copy of the agreements.

I am happy to draft you a letter that will help your Landlord realise that it is far easier to reach a settlement than risk going to Court.

I can help you with these but providing more detail on a live case is not advisable on an open blog.

So I suggest you contact me via the forum using the forum link below

https://www.landlordforumproject.co.uk

Join the forum

Confirm the email (note hotmail/outlook addresses rarely work)

Once fully registered and logged in use link below to see my profile and there will be an option bottom left of page to send me a private message

http://bit.ly/davidpip

and hopefully I can help you seek a mutually agreeable settlement.

Please note that I am convalescing at the moment so my reply may not be immediate but I will get to it.

Hello,
I hope you can offer some advice as I'm not sure how to get my property back from my tenant.
The tenant has lived in my property for over 10 years. She was the daughter of a friend and was not able to pay a deposit when she moved in. She slowly (over 10 months or so) paid the deposit amount but unfortunately she quickly fell in to significant arrears and now owes me thousands.

The tenant was reliant on Housing Benefit to pay her rent and, after liaising with the Local Authority, they pay her HB directly to me to cover the rent. She makes no contribution above the HB (there is a top payment of £100 per month required from her). This means she is accruing more debt on a monthly basis. The Local Authority also arranged a monthly payment of £40 approx. towards her outstanding debt, this has been in place for 4 years plus.

Due to the way the deposit was paid, I failed to place it in a deposit scheme. I became aware that this was a problem and the tenant and I agreed that the deposit amount could be deducted from her arrears. I put together a document to reflect this and we both signed it.

I now need my property back but not sure how to do this without landing myself in trouble. The property was always there as a pension for myself and I am looking to retire in the next 12 months.

I'm sorry at the length of the above but I would be so grateful for your advice.
Thank you,
Helen

@Helen

There are lessons here for every landlord.

You did not say whether the Tenant had an Assured Shorthold Tenancy, if not then the law creates a Statutory Periodic Tenancy. I am guessing that even if she had an AST it expired, if that was the case you would be liable for two sets of sanctions.

If you can show you have returned the deposit with messages or letters confirming the arrangement then you will not need to worry about the sanctions.

If the HB is not the full rent then either your rent is really high or (more likely) the property has more rooms than she needs. If Tenants live in a property where the Council deems they need less bedrooms they only pay the LHA rate for that bedroom.

If the Tenancy is now an SPT you can increase the rent, she can refer it to the FTT but if you are reasonable you will get it, this will increase her debt which may not help, but it give you leverage in negotiation.

So to evict her you can issue the Section 21 notice, checking the notes carefully for the reasons it may be void, you must give her all the documents referred to in the notes, the latest edition of Government How to Rent doc etc. There should not have been any illegal fees since 2020. The S21 notice must be served with at LEAST two clear months notice, if it is a day short the notice will be void and you will have to start over. You need evidence of service, so email and do by post and do by hand (photograph/video it going through the door).

If she owes more than two months rent you may also issue a Section 8 notice, this only has 2 weeks notice but it take longer to get to Court as the S21 is an accelerated procedure. This page tells you the grounds for S8, you need at least one mandatory ground and as many of the others as possible.

https://www.propertyinvestmentproject.co.uk/blog/section-8-evicting-tenants/#grounds

You should let the Council know you are evicting her, if they owe her a housing duty they will reach out to you to see if you will agree to let her stay just 6 more months. They will offer inducements, sometime a contribution to the arrears or a new deposit *which must be protected) for a new AST, they may even offer the full rent. You can decline all of these, they just need to show they tried but consider any contribution to the arrears if it makes financial sense.

Issuing both notices tells her and them that you are serious, also if there is an error on one the other carries on.

Make sure you get all the forms from the .GOV website because old ones can be void as statutory forms have changed wording.

If you need me to check anything you can use the instructions in 866 to PM me via the forum.

I am on medical leave at the moment, so may not respond immediately.

Hi David,

I tried to find you via instructions on post 814 but have been unable to locate your profile.

I am a tenant who was served with a section 21 notice to vacate. However, I found that the section 21 was invalid as no valid EPC was given to me and the agent acting on behalf of the landlord did not correctly serve me with the prescribed information relating to tenancy deposits. The agent had also not even provided the deposit protection certificate. I chased them for this and this was provided 31 days after paying my deposit.

The prescribed information formed part of the tenancy agreement so I was required to docusign it before the deposit was even protected. I contacted the DPS who advised me that this was premature for the agent to have expected me to sign this upon paying the deposit and not given me a proper chance to review the details. Furthermore, the missing part of the prescribed information was the scheme leaflets which were not provided even though a number of clauses contained in the prescribed information section referred to these.

I wrote to the landlord advising the section 21 was invalid due to the EPC being invalid and the failure to provide the prescribed information correctly. I also asked for my deposit to be refunded and for compensation in line with section 214 of the housing act. The agent then reserved all documents with a valid EPC and the scheme leaflets, 11 months into my tenancy and followed this with a second section 21 notice to vacate a month later. They advised the landlord would not be refunding my deposit as they were happy with how the deposit was handled. They refuse to admit the error of not serving the PI correctly. I sought legal advice and was told that the second section 21 would still be invalid as the landlord should have refunded my deposit and come to an agreement for compensation in order to remedy the non compliance of not having served PI correctly. Then only he could serve a valid section 21. Can you clarify if this is accurate please?

I have now vacated the property as the agent put pressure on me to leave and insisted the landlord wanted to sell the property. This was not true as the landlord advertised the property for rent for £300 more a month the moment I moved out. Can I take any action against him for being dishonest about this??

I plan to start a county court claim against the landlord for non compliance of section 213 (6) and issuing the invalid section 21s. I also wish to take action against the agent for negligence. Can I take action against the both of them? Would you suggest I also start a county court claim against the agent or just go via the property redress scheme?

Throughout the tenancy the landlord has been an absolute ***hole, not fixing issues, leaving me with mould, faulty electrics, a blocked drain and water coming in via windows. I am convinced he asked me to vacate because I brought these issues to the agent and asked for them to be rectified. I look forward to your advice!

Regards,
Brenda

@Brenda

I always advise Tenants to not even raise the issue of legal action until they have left the property, too many Landlords or Agents fake damages, it is easy to expose but just a hassle. Also why remind the Agent when you can get money back if they screw up, the longer and the more tenancies that pass the greater the leverage in negotiation. If you had not reminded them and they actually made a failure which was not rectified until the tenancy expired and a new one was served, then the sanctions can be required again for the second and subsequent tenancies. So you lost out there.

The Landlord is the person culpable even if it was an Agent who did not protect the deposit, the Landlord could then have an action against the Agent or ask the Court to add them to the claim in a directions hearing.

You say

“The agent had also not even provided the deposit protection certificate. I chased them for this and this was provided 31 days after paying my deposit."

The certificate is not a big deal, it serves no purpose except to tell you that your deposit has been protected.

There are two triggers for sanctions; failure to protect and failure to serve the PI. If your deposit has been protected and the Agent/Landlord has provided the scheme with your correct email and phone number then you will get a text message encouraging you to login to their portal and download the certificate.

If this was done late I advise Tenants NOT to login as it may impact their case and reduce the sanctions in some circumstances.

It is very common for a subset of the PI to be put into the Tenancy Agreement, it is a false insurance policy because some Judges will agree with me that the PI can't possibly be provided for a deposit that has not yet been protected. However, some Judges (who have probably been Landlords) sometimes say "what is all the fuss about, it was protected in the end and that is what matters" if they do not award at least 1x the deposit then one can always appeal it but results are not guaranteed and at appeal you are potentially exposed to risk of costs.

The question a Judge would be concerned about in terms of "a chance to review" is whether it would have made a difference. Would you have not taken the property if you had known it was protected with DPS rather than TDS or MyDeposits. Highly unlikely.

The thing is one can't be to anal about detail, for example the wording in the legislation about a leaflet. I can assure you that if the information provided was “substantially the same” as what the leaflet has, it will suffice. It all depends on what was missed out. Also a lot of the information is in the how to rent document.

What the Court is concerned with is whether you knew where your deposit was and how you make your wishes known e.g. to stop the Landlord taking it and whether you know the time limits. i.e. if the Landlord asks for the deposit and you do not object within two weeks they may given it to them.

A failure to attach the terms of the scheme can be taken into account and for many these are what was meant by the scheme leaflet. This is the statutory instrument about what should be on the PI.

https://www.legislation.gov.uk/uksi/2007/797/article/2/made

Again don’t take it too literally.

I advise Tenants to only inform that a Section 21 is void when it has expired and I suggest they do not tell them all the reasons why, just that they suggest the Landlord take legal advice, but maybe mention just one thing, e.g. in your case the EPC.

The sanctions are a statutory penalty, they can only be awarded by a Court, it is not compensation but a punishment and as I said above, never seek a settlement or suggest you are taking legal action before you are out and your deposit has been returned.

You were given the certificate on day 31 so I imagine that the deposit was protected within the 30 days, any technical defects on the PI are subjective. The most common issue I get is when the Tenancy Agreement says it is protected at say the TDS while the Landlord actually protected it at the DPS.

I do not advise anyone quote dates here as it may identify you and prejudice your case, but let's see what we can figure out from the information you have provided in case it helps Landlords and Tenants reading this.

It seems to me based on what you have said that there were THREE section 21 notices served.

1. The one that was void because of the EPC.

2. The one served 11 months into the tenancy which had EPC defect rectified.

3. The one that "followed this with a second section 21 notice to vacate a month later."

I am not clear how long after number 2 that number 3 was served or why it was served but ANY Section 21 must have at LEAST two months clear notice. I always recommend having an extra week just in case there are any issues with serving (for example getting stuck on he M25 because some numpty things it will make a difference and not alienate people to their cause if they create masses more CO2 in their protest).

I am guessing that you had a 12 month tenancy and were served the first defective S21 on or before 2 months to end of Tenancy.

I do not know the reason number 3 was served but by serving number 3 number 2 becomes void.

A section 21 notice is a use it or lose it instrument, it must be used within 4 months of expiry.

Number 3 appears to be void because you say it asks you to leave one month later and two clear months are required.

You should NOT have left, a Section 21 notice is only the first step in a no fault eviction, if you do not leave beyond the expiry of the Tenancy Agreement then a new Tenancy is created in law, this is known as a Statutory Periodic Tenancy and runs from month to month or quarter to quarter depending on the frequency of the rent payments. If the Council had owed you a housing duty you might be considered intentionally homeless if you leave.

Your deposit was provided for the performance of the contract, they were probably reluctant to release it until you left, also it is in the scheme so they do not have it to refund to you unless the scheme is an insurance backed scheme rather than custodial scheme. Either way it is messy for them, you have to ask the scheme for it and they have to agree. If there is any dispute on the deposit on an insurance scheme the Landlord is asked to pay the deposit to the scheme.

Of course the Agent would refuse to admit to the error of not serving PI, I have argued many times that generic terms are not the PI some Judges agree some do not.

I have not seen the paperwork but it sounds a bit "thin", still any Landlord facing such a claim should consider the legal costs of defending an action. The Court system is a "pay to play" venue and if they argue the toss with a claims firm the fees can exceed £5000, I have had several cases in the last year which have been between £7000 and £10000.

Landlords need to understand that a claims firm is really an insurance company, they work on risk and they create the most verbose arguments so that they can get hike up their fees. It is not uncommon for them to make a lower part36 offer of 1x the deposit after a claim has already been filed because under part36 the Landlord still pays the costs.

The legal advice you had was not good, there is no legislation for current tenancies that says a Landlord (or their Agent) must refund a deposit before serving a replacement S21 correcting a defective one. Nor is there any legislation requiring "compensation" (actually a Sanction which is a statutory penalty between 1x and 3x the deposit) is paid before serving another S21.

The legislation has been around since 2007, it has been amended by a plethora of case law and then corrected by at least 4 separate legislative updates. One of these gave a kind of amnesty to protect old deposits, but there were still a few "technical issues" which are so rare I will not waste readers time with mentioning because they are not relevant.

Whilst it is possible that there are a very tiny amount of very old tenancies where a Landlord had to return a deposit before a S21 would be valid, you do not seem to be in this group as you say 11 months into the tenancy etc.

You have left the property now so the validity of the notices is moot anyway, but that was not good advice.

You can't do much about them lying either, I get about 20 emails a week asking this question about Landlords saying they wanted to sell but then renting their property out again. First of all given the damage to the economy who knows what went on. I know people on over £225k who have been refused mortgages because the banks are looking for ANY excuse to decline. Others are just delaying and no landlord wants a void. Also the clocks went back and it will be Christmas soon so agents will tell any vendor that they will get a better price in the New Year. So no action on the alleged dishonesty.

I am not saying they did not want to evict you purely because they could get a higher rent, the S21 process is a NO FAULT EVICTION, i.e. you did nothing wrong they just want to end it. The problem is that to a Landlord “no fault” means “for any reason they wish” and they do not have to tell the tenant anything.

As the Government is still planning to end no fault evictions many Landlords are seeking to get the rent up to date now, especially those facing potential of 50% hikes in interest payment amounts or those where energy was included in the rent.

If you had stayed in the property an SPT would have been created and they could have served a notice that they were going to increase the rent and you could have sought a review from the First Tier Tribunal.

Do not rush into taking legal action, a carefully worded letter offering a reasonable settlement would likely be successful if there are grounds, to determine if there is a case I would need to see the paperwork rather than allegations.

You have no contract with the Agent so you have no grounds for negligence against them. Your grounds for action are only with the Landlord and only for breach of contract ( if there is any), that can be expensive and you would need to show the loss you have suffered. Forget the issue of the "issuing the invalid section 21s" they are only relevant if you are trying to stop the eviction but you left already.

If there are grounds for a failure in deposit protection you can certainly bring the claim naming both Landlord and Agent as defendants, the Judge will then determine who is culpable.

I would leave any complaint to the PRS until much later, but I gather it only applies to their members.

There are a lot of lessons to learn in this matter, the most serious is the one you leave to the end.

ALWAYS REPORT ANY REPAIR ISSUES TO THE COUNCIL, ESPECIALLY ANY MOULD THAT IS CAUSED BY ISSUES ON THE PROPERTY.

Strictly speaking you should first report such issues to the Landlord and give them a reasonable time to fix, but bearing in mind the provisions of Landlord and Tenant Act plus the Homes Fitness for Human Habitation Act. It is too late now unless you have developed a medical condition that you can prove you did not have before but you would need incredibly good evidence.

If all of the repairs you mention were concurrent then a call to the Council should be made at the earliest opportunity. Depending on where you live, some Councils will send someone to inspect and they might issue an informal notice to repair and if LL fails to observe that, then an Improvement Order. Some go straight for the jugular because Improvement Orders can be a good source of income for a Council.

Had you reported the issues to the Council you might have had a further reason to delay any Section 21 notice but only by six months.

I would advise you not provide further detail here as it may prejudice you or any case you bring.
The instructions in post 865 seems to work for others, try again, maybe use a different email provider.

Hello,

I am a first time landlord and have found myself to be in quite the predicament.

In 2020 I rented out the property and simply put, failed to protect the deposit in one of the three protection schemes. The deposit is worth £550.

The tenant ended up on a rolling contract and decided to leave the property on 2 January 2023 after giving notice on 29 December 2022 that she was leaving. She sent us a formal letter advising us that her tenancy was to end on 31 January 2023 but vacated beforehand. She did not pay rent for January 2023 (paid in advance on 1st of the month, for that month) which was valued at £650 i.e. more than the deposit. Because of this I did not give her the deposit back as the rent was not paid. In addition to this we are aware that white goods have been stolen and the property was left in a state including several black bags of nappies etc left in the garden.

The tenant herself has been quite threatening and has used offensive language in her tex messages. She advised that she wanted her deposit by 31 March and gave us a deadline. We attempted to contact her (as she was such a pain) to just pay the deposit and get her out of our hair so we didn't have to deal with her anymore. She outright refused the deposit and advised to speak to her solicitor. We have now received a letter from a solicitor advising us that we have breached the law by not registering the deposit with TDS and are expected to pay £1500 in damages, the £500 deposit plus any Solicitors fees. The letter states this is 'a fair and reasonable' fee.

My question is that although I didn't protect the deposit (due to genuine error!) but the Tenant is in arrears of £100 (plus I would like to claim for the stolen items and repair of the house....) do I have any leg to stand on?

I look forward to hearing from you.

(Reposting as not sure if my previous comment posted!)

@Rebecca

These types of issue are tricky depending on whether the Solicitor is just a high street novice, a Housing Solicitor or a Claim Firm. The latter tend to use dodgy tactics to generate fees.

Assuming you had a typical Tenancy Agreement, in a situation like this the Tenant will be liable for the notice and the damages for stealing the white goods, personally I would have reported the theft of the white goods to the Police.

The level of sanctions is likely to be 2 sets of 1x the deposit at minimum UNLESS the Tenancy Agreement has contractual periodic terms, in which case the lowest would be 1x. There is some reasonable case law which may help you keep it at that level and with the potential for counterclaim I would be hopeful that a settlement could be reached without going to Court. Claim firms try to drag it out to ramp up fees, so best to act quickly.

I would advise you not provide further detail here as it may prejudice you or any case you bring.
The instructions in post 865 explain how to send me private message. I can then assess your case, tell you what type of firm it is and help you seek a settlement.

Hi there,

I rent a small commercial property to a tenant who provided a deposit at the beginning of her tenancy. According to the estate agent that marketed the property, I'm not obligated to place the deposit in a tenancy deposit scheme because the agreement we executed with the tenant is not an assured shorthold tenancy.

The tenant is claiming the one-month deposit should be in a deposit scheme and is getting rather angry. Am I correct in thinking that I wasn't obligated to put the deposit in a scheme? Incidentally, the lease agreement we executed mentions nothing about deposits or schemes.

Charlie

Thanks very much for confirming that!
That's a relief.

Very useful!

My tenant has passed away and our agent gave prescribed info (including the procedure) hardcopies when alive. Now tenants estate is threating to sue us as we cannot evidence that we gave. What to do now?

An Agent bought my existing Letting Agents business, according to Company House 24th Sept 2021. I was given Sec 21 notice but was invalid as New Agent did not
have licence. They then took me to Court for eviction but still could not prove he had licence (I represented myself age 71). Then 2nd hearing, still not prove.
They folded the day before 3rd final hearing. I was awarded 42 days to leave with no costs, this gave time to move out to property I bought.
After undergoing the compulsory tests he was then granted a licence 5th May 2022
prior to this he put his Company name and address on my TDS bond revised certificate 6th April 2022. The bond is in the name of Mr Godwin Lead Tenant
which is wrong as my ex-husband wrote letter to say it soley rented in my name but they still not changed it, therefore if I died or incapacitated would not
have received bond. TDS aware of all this.
Agent/Landlord now want my Bond £850. Agent produced statement with fictitious rent (which included the Court fee from the case they lost to me)
TDS arbitration facility did not allow for Counterclaim so I would have lost.
I am having to take to Court now, therefore, can I claim Not Protecting my Bond, Revenge at losing case to me. Also Harassment/Stress/Anxiety, not having licence when not only signing bond, but issuing Section 21, then
eviction order to Court. I have had, and am having, a torrid time as a
result of their relentless demands of not paying sewage (back-dated 7 yrs),
water bill, gas bill. My Tenancy Agreement states Free gas, water and Wi-fi
was never asked to pay sewage in all of 8yrs renting.
What do you suggest.

@Ruth

Sorry I have only just seen your post

There is a lot to unravel here and probably best not on a blog comment.

The instructions in post 865 explain how to send me private message. I can then assess your case, tell you what your options are.

Hi David

re your reply 857 . I protected the deposit as you advised .I have served a section 21 .The solicitor i want to use for the court order now advise me the since the tenancy started in 2014 ,it was much to late to protect the deposit and the section 21 is now not valid .I have to return the deposit and issue a new section 21.
Have you any case law which will support me now and i can use the already served section 21 .Many thanks Harry

@Harry

Just to confirm, you mean the message of 6th March, 2022 @ 10:13

The issue is whether there was a defect when the Section 21 was served, if you corrected all defects then the S21 will be valid for 4 months from the 2 month expiry of the notice.

There are a lot of prerequisites for a Section 21 notice, it is common practice to make a bundle of all the documents needed, sometimes they go over the top just to be through.

You will struggle to return the deposit without the Tenant's permission if you protected it in the Scheme. Firms that do fixed price evictions try to return the deposit to eliminate any potential defect but returning it, but that deprives the Tenant of the free ADR and might lead them to take legal action re the original failure.

A Tenant avoiding eviction will likely do everything in their power to resist the deposit returned, I see no point in trying, the legislation says the the deposit must be protected. It also says you must serve the Prescribed Information, which I assume you did.

If your Section 21 notice is valid I see no legal issue you can download the form for the next stage which is on GOV website and called n5b-eng, you can also download the defence form (n11b) that the Tenant will be sent to see if from their point of view you have failed.

I would advise you not provide further detail here as it may prejudice you or any case you bring.
The instructions in post 865 explain how to send me private message. I can then assess your case, tell you what type of firm it is and help you seek a settlement.

Hi David,

Hope you’re well. Really appreciate you taking the time to respond!

My father is a landlord of a house which is an hmo and lets out rooms.
He failed the protect the deposit of one of the tenants on time (3days late.)
She has sent a letter threatening to go to court. She also stated that he failed to send her deposit certificate but was aware it was protected 3 days late (I don’t know how.) she also said my dad didn’t pay back the deposit on the day he said he would and all of this has caused her and her partner significant inconvenience. Also - highlighted point -
“We are open to reasonable offers about compensation to settle this matter to avoid the costs of going to court. The court will order you to make a payment to us between £1384.61 to £4153.83, on top of our court fees. We feel that £3150.00 is a fair amount.” I sent her a message back stating that I was the landlords daughter, apologising for all the inconvenience and explaining his health issues. He’s 68 years old has many chronic diseases and now has failed the memory test and been referred to neurology. Therefore I was taking over. She seemed to respond well and even admitted that this explains her interactions with my father.
I told her that the deposit certificate was sent and that I’d forward it to her. It was the first email my father sent to them and had no subject or writing and the pdf with the certificate was incorrectly named (highlighting his cognitive decline.)
I did and she has back saying they received it and still think £3000 is fair.
What do you advise? Also if we go to court can would a judge actually order us to pay their solicitor fees? And would the really order 2/3x like she is asking for for 3 days discrepancy, considering health issues were ongoing and that nothing was done with ill intent? She wrote in her first email that she was willing to negotiate. When I reached out to her explaining my father’s position she asked if I was willing to negotiate. I said absolutely. And now after me forwarding the deposit certificate she’s coming back still standing at 3k. The truth is my father’s cognitive abilities are so bad I’ll likely take power of attorney soon and he won’t be able to appear in court. What happens then?
I responded to her message of saying 3k is fair with this - Thank you for your reply and for your openness to negotiate.

I appreciate that your initial request of £3,000 was based on the assumption that you hadn’t received the deposit certificate, which we’ve now confirmed was provided. Given that the only remaining issue is the delay of three days in protecting the deposit, I’d like to suggest a revised compensation that reflects this minimal timing oversight.

With the health and personal challenges we were dealing with at the time, I hope you can see that this was a genuine oversight, not intentional. Based on the circumstances, I believe a compensation of £1500 is more reflective of a fair and reasonable outcome for both of us.

Thank you again for working with me on this, and I look forward to finding a resolution that we both feel is fair.

She has now come back with this - Though I appreciate that you have sent us the certificate now, we have checked Michael’s email server, including junk, spam, etc, from that day (9 October 2023) and he never did receive that email with the certificate.

However, we are willing to end this today for £2,500. Please let me know if this is agreeable.

Despite me forwarding the email to her she is saying she didn’t receive it, isn’t that a little ridiculous? Also I do feel she’s being greedy and it seems to just be about money. How will that go down with a judge at court? Especially if I show up as his representative as he’s so poorly he can’t. I’ve been very nice and fair to her but I do feel she’s taking the piss. 2.5k for being 3 days late?

Please advise and any help in writing a response would be appreciated. For now I’ll respond by telling her I’ll get back to her in a few days.
Looking forward to hearing from you

@Meg

I would advise you not provide further detail here as it may prejudice you or any case you bring.

The instructions in post 865 explain how to send me private message. I can then assess your case, tell you what type of firm it is and help you seek a settlement.