Deposit Clause in AST and Deposit Protection Scheme

Collapse
X
  • Filter
  • Time
  • Show
Clear All
new posts

    Deposit Clause in AST and Deposit Protection Scheme

    It is bit complicated but I would try to explain , please bear with me.

    I have "Deposit section" in my AST which have around 10 clauses explains which scheme my deposit would be protected and how my deposit would be dealt at the end of tenancy for what my landlord can make deductions from my deposit.

    Other side all three protection schemes advice their members to add their names in AST as a Deposit protection scheme and serve DPC and PI to tenants.

    Does this is a legal requirement to add scheme name in the AST ? Does AST could be deemed invalid if Deposit protection scheme name is not added in the deposit section of AST?

    Under what terms and conditions deposit would be dealt at the end of tenancy if Deposit Protection scheme is different than AST ?

    #2
    Within 30 days beginning with the date on which it is received, the landlord is required to protect the deposit in accordance with an authorised scheme, by complying with the scheme's initial requirements. Within the same 30 days, the landlord is required to provide to the tenant information as prescribed by art. 2 of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007.

    Lack of correction protection etc. would not render an AST invalid.

    If the landlord failed to comply with the legislations, the landlord is liable to a finanical penalty of between 1x-3x the amount of the deposit payable to the tenant. The landlord is also unable to give a valid s21 notice until 1) the deposit have been returned to the tenant less any agreed deduction, or 2) the tenant have taken the landlord to court for the penalty and the case has been determined by the court, withdrawn or settled.
    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

    Comment


      #3
      KTC Do I take it that the short form of your answer is:

      1) it is not s a requirement for an AST agreement;

      2) it would be a breach of contract which is unlikely to have caused any financial loss to the tenant, and which at that stage would be too late for an injunction, so not pursuable?

      Comment


        #4
        It doesn't really matter what scheme the tenancy agreement say the deposit is or will be protected in. The deposit legislation requires PI to be given which includes details of the scheme. If the landlord failed to provide it correctly, that give rise to liability to a penalty. Likewise, if the landlord provided it with it being correct at the time, but that no longer being the case (i.e. the deposit's got unprotected along the way somehow), again that give rise to a deposit penalty claim.

        If deposit is protected, then tenant would be entitled to use the scheme's dispute resolution, whether PI was provided or not, bearing in mind that the landlord can always refuse agreement to ADR.
        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

        Comment


          #5
          Originally posted by JustThink View Post
          Does this is a legal requirement to add scheme name in the AST ? Does AST could be deemed invalid if Deposit protection scheme name is not added in the deposit section of AST?
          Unless the naming the scheme is part of the scheme's initial requirements, which are part of the legislation, it's just advice.

          And it seems odd advice, to me. It might be commercially useful for a scheme to be used regularly by a landlord, but the deposit isn't usually protected when a tenancy agreement is signed, so it seems to me that the scheme's advice is a little self serving. A landlord can decide to protect a deposit with one of the three schemes after the agreement's signed and where it is is confirmed to the tenant with some other mandatory documentation.

          All that including the scheme in the agreement does is raise the posssibility of there being a discrepancy.

          An agreement is usually not made "invalid" by the breach of one term. And it would take the agreement of all parties or a court to "make" a contract invalid.

          Under what terms and conditions deposit would be dealt at the end of tenancy if Deposit Protection scheme is different than AST ?
          It would have to follow the terms of the deposit protection scheme to satisfy the agreement between the landlord and the protection scheme (and it might not be possible to do anything different in reality).

          That could put the landlord in breach of contract with the tenant, but the tenant only has a viable claim if they suffer a loss as a result of the breach.

          When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
          Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

          Comment


            #6
            I read TDS and mydeposits scheme rules for landlords as they said landlord should include relevant scheme name in AST and landlord must get consent from all tenants to name lead tenant but this is not a part of PI. My landlord not got any consent and I was not aware that landlord gave DPC to other tenant, now my landlord withheld my deposit under AST but I don't know why he only remember those parts of AST which are in his favour.

            Comment


              #7
              You need to find and read the exact terms and conditions that applies to your situation. It's no good reading and comparing the different scheme's terms if your deposit wasn't actually protected with that scheme. You need the terms and conditions that was in effect at the time your deposit was taken. Note that custodial and insurance version of each company's scheme would have different terms, so you need to be careful there as well.

              Once you have the right terms and conditions, first check which bits are considered the "initial requirements" by the scheme for the purpose of the Housing Act 2004. That's what your landlord must do within the 30 days.

              If your deposit was protected, you should be able to dispute the proposed deduction. If the landlord was in breach of the legislation, you can bring a claim for a penalty, but if you're joint tenant, all of you must bring the claim together unless you have permission of the court otherwise.
              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

              Comment


                #8
                The Prescribed Information would have made it clear who the lead tenant was, and the terms and conditions describe the function (in small print !).

                If you're not the lead tenant, you can't really interact with the protection company (regardless of which one it is).
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  If you had a joint tenancy, you don't a deposit that is "your deposit". There is just one deposit for the whole joint tenancy and it is not returnable until the whole tenancy ends.

                  Comment


                    #10
                    I understand this is not a valid point but Landlord only provided DPC to one tenant and tenant signed DPC after landlord signed but landlord not provided Information for tenants leaflet. DPC first page saying its tenants responsibility to make sure everything correct. Does information for tenants leaflet was part of the PI and does one tenant signed DPC means landlord complied with the law as signing tenant was not aware of regulations and don't remember where and when he signed the DPC. Landlord not providing any evidence that he provided DPC within 30 days with PI. Can I start a court case and LL provide evidence in court or can I do something else?

                    Comment


                      #11
                      It was a joint tenancy, so any legal action relating to the tenancy will normally have to be taken by all of the joint tenants.

                      If you are the only person affected by the issue, i.e. your claim is that you were not given the Prescribed Information but that every other tenant was, you might be able to claim non-compliance for your "share" of the deposit (because the courts should recognise that it's not equitable to deny you a claim on the basis it has to be jointly made by people who have nothing to gain.)

                      But that would be a complex claim and probably not one you could undertake as the small claims process.

                      The landlord has to give the Prescribed Information to anyone who contributes to a tenancy deposit, there's no need for it to be signed, they just have to give you the opportunity to sign it.

                      The tenancy deposit certificate in itself is only important if it's part of the Prescribed Information. Signing the tenancy deposit certificate doesn't mean anything (as far as I know).

                      It doesn't mean anything that the person who did sign something doesn't remember doing it or when they did. The landlord either has a signed bit of paper or they haven't.

                      I'm very unclear what you are actually wishing to claim for.
                      The non-compliance sounds very minor (one tenant wasn't served with the PI, or, if they were they don't remember it), and making a claim for non-compliance is expensive and quite complex.
                      If you're trying to recover the deposit, if the other tenant has agreed to the deduction, that's also going to be very difficult.
                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Originally posted by JustThink View Post
                        .........
                        Check the actual relevant terms and conditions.......

                        At least one of the scheme has for its initial requirements that the DPC be provided if there's a joint tenancy, and also that consent must be obtained for nomination for Lead Tenant.

                        There's no good speculating until you have actually looked through the T&C.
                        I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                        Comment


                          #13
                          I am trying to recover my deposit and also start part 8 claim. Scheme rules of mydeposits saying that landlord "must" obtain consent from all tenants before nominating lead tenant.

                          can a part 8 claim based on wrong tenant address on DPC as I read one case where court awarded x1 penalty for wrong postcode? This is also requirement of PI.

                          Can I start both claims (deposit and part 8 on N208 form ) via small claim under one case that if one is not successful other might be?

                          Comment


                            #14
                            Originally posted by JustThink View Post
                            I am trying to recover my deposit and also start part 8 claim.
                            There isn't any "your deposit", there's one deposit which was paid by all the joint tenants and is owned by all of them.

                            A landlord can't keep any deposit money unless the lead tenant agrees (or doesn't oppose the proposed action).
                            If the lead tenant has agreed that the deposit can be handed over to the landlord, I don't think you have a case for the return of the deposit.

                            You are going to struggle to get a court to hear a case without all of the possible claimants (all the people who were joint tenants) being involved, at the very least in completing the case paperwork (they can then probably agree - in writing - to you handling the case on your behalf). But from the sounds of things, you will need the lead tenant (at least) to give evidence.

                            Scheme rules of mydeposits saying that landlord "must" obtain consent from all tenants before nominating lead tenant.
                            And there's no one from the scheme interested in that rule being broken and it isn't part of the scheme's initial requirements, so there's nothing you can do about it as you haven't suffered a loss as a consequence (the lack of consent wasn't the reason your deposit was retained).


                            can a part 8 claim based on wrong tenant address on DPC as I read one case where court awarded x1 penalty for wrong postcode? This is also requirement of PI.
                            These claims aren't generally documented anywhere, so it's possible.

                            Can I start both claims (deposit and part 8 on N208 form ) via small claim under one case that if one is not successful other might be?
                            No, you can only have one claim for one matter at the same time.
                            If you have more than one, the court will have that brought to their attention (and they'll probably cancel the Part 8 claim as a result).

                            I don't understand why on earth you'd bother with a full part 8 claim for such a trivial breach, if you want your deposit back, you and the other tenants should use the deposit dispute process or the small claims court.
                            If the deposit was retained with the agreement of the lead tenant, you can't use the small claims route and the part 8 claim (probably) won't wind back the agreement to hand the deposit over and won't order its return.

                            So.
                            Did the lead tenant agree to the deposit being taken by the deposit?
                            Will the lead tenant (and any other tenants) co-operate in your case?

                            If either the answer to the first question is yes and the second no, I'd say you're wasting your time and court fees.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #15
                              Originally posted by jpkeates View Post
                              If the lead tenant has agreed that the deposit can be handed over to the landlord, I don't think you have a case for the return of the deposit.
                              A co-tenant in such a case may have a case against the Lead Tenant for agreeing to the proposed deduction without agreement and/or when they shouldn't have.

                              Originally posted by jpkeates View Post
                              And there's no one from the scheme interested in that rule being broken and it isn't part of the scheme's initial requirements, so there's nothing you can do about it as you haven't suffered a loss as a consequence (the lack of consent wasn't the reason your deposit was retained).
                              It is part of the Initial Requirements for at least one of the insurance scheme.
                              I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                              Comment

                              Latest Activity

                              Collapse

                              Working...
                              X