Can LL issue section 8 for non-payment of deposit?

[libramoon175]

Hi all,

I was wondering if I could get some opinions on a situation.

My 22 y/o sister moved into a house recently, and knew there was a £500 deposit to pay. However, the agent was stuck in a dispute over the previous tenant's deposit and never asked for the money from my sister. My sister signed the lease (which specified the deposit to be paid) and moved in. She tried to get in touch with them numerous times over 2 months (she forwarded me the emails, so I know she's not lying) about paying the deposit and they completely ignored her. She then spent it. *shakes head*.

Now the agency are on to her, 3 months into the tenancy (a joint AST) and threatening to issue the entire house with a section 8 on grounds 12 (breach of contract) unless she pays up within a week. Unfortunately I've just made an international move and I'm unable to help her. She's let them know realistically when she can pay it, which is in about 6 weeks. However the agency are standing firm that they will begin legal proceedings if they don't receive it at the end of next week.

So firstly, can they do that? And secondly, is it even legal to allow someone to move in and sign a lease without taking a deposit, and then ask for it later? The contract is 6 months and she's almost 3 months in.

Thanks,
Libra

[AndrewDod]

a) There is no law to say that the L cannot let a tenant move in without paying a deposit which they are contractually liable to pay.
b) It would be pretty stupid however
c) Presuming it is contractually due, then it is still due, and it IS a breach of contract
d) Whether it will be successful in terms of S8 is up to the judge

She should pay up

However what did L protect? - as it is a house share there is only one deposit, and that was not paid in full as agreed (presumably) per contract. So she is likely to get all of her housemates into trouble or detrimentally treated in terms of any ongoing tenancy.

Did you sister "replace" another outgoing tenant? -- that creates huge issues over "who is the joint tenant" unless done in a proper manner with a new tenancy agreement for all tenants.

[libramoon175]

a) There is no law to say that the L cannot let a tenant move in without paying a deposit which they are contractually liable to pay.
b) It would be pretty stupid however
c) Presuming it is contractually due, then it is still due, and it IS a breach of contract
d) Whether it will be successful in terms of S8 is up to the judge

She should pay up

However what did L protect? - as it is a house share there is only one deposit, and that was not paid in full as agreed (presumably) per contract. So she is likely to get all of her housemates into trouble or detrimentally treated in terms of any ongoing tenancy.

Did you sister "replace" another outgoing tenant? -- that creates huge issues over "who is the joint tenant" unless done in a proper manner with a new tenancy agreement for all tenants.

She replaced another girl, who was having a dispute with the agency over the return of the deposit, which is why it's taken so long - they didn't release it from the TDPS until it was sorted with the former tenant, so now they've released it they want to re-register it with my sister's share. So currently, no deposit is being protected.

The lease has all been signed, so my sister is the joint tenant, and yes this will affect them all which I think is worrying her most. She's planning on joining me in September when the lease ends, so in theory she could just come sooner, but doesn't want to leave everyone in a mess.

[KTC]

However the agency are standing firm that they will begin legal proceedings if they don't receive it at the end of next week.

I wish the agency luck, they will need it to get possession.

[theartfullodger]

s8g12 is the correct ground for breach of contract. If the tenancy contract she signed has her (her as opposed to "the tenant" with a joint tenancy..) being responsible for paying a specific deposit then yes, landlord (not landlord, not agent) could take the case to court:

But g12 is a discretionary ground and I doubt if any judge, when hearing she'd tried to make contact multiple times, would evict her.

However, if it is a joint tenancy then all joint tenants would be evicted.

[jpkeates]

If the agent serves notice notice, it will have to have a minimum of 2 weeks notice, after which the agent will have to pay three hundred pounds plus to take the tenants (all of them) to court.

That hearing is unlikely to happen for a month or so, by which time the deposit could be paid.

The actual landlord would have to attend any hearing.

I would suggest that the tenant(s) write pointing this out to the agent - as the tenant has offered to raise the sum of money with a deadline the landlord will end up paying the court fees and no judge is going to award possession for non-payment of a deposit.

The deposit is the tenant's money, so the only issue is that there's a contractual term that's being breached - when a tenancy agreement talks about "paying" a deposit, it's somewhat misleading.

It might be helpful to offer to pay the money in installments, starting sooner.

[KTC]

The agent can't take the tenants to court for possession.

"Dear landlord, we want you to evict all of your tenants because we screwed up getting the deposit before letting someone move in."

[mariner]

The Agent can serve Notice for possession, but only LL or solicitor can proceed with it to Court.

[libramoon175]

Thanks all, this has been supremely helpful!

[Lawcruncher]

Remind the agent that If the deposit paid has not been protected the landlord can be sued under section 214 of the Housing Act 2004.