Problem with Prescribed information and Section 21.

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    Problem with Prescribed information and Section 21.

    Basic History:

    Property in England. Tenant moved in March 2012. 6 month AST signed. Property managed by Lettings Agency who issued Gas Certificate, EPC. Deposit lodged with DPS within the required 30 day time period and Prescribed information re Deposit given to tenant.

    October 2012, Lettings Agent got tenant to sign another 12 month AST (to end October 2013).
    January 2013, we started managing property ourselves We notified DPS of this and they transferred deposit into our name on their website
    October 2013: AST finished and tenant has lived there ever since, on Statutory Periodic Rolling basis.

    We now wish to issue tenant with Section 21 as would like property back to sell it. We have copies of the Gas Certificates and EPC given to tenant when tenancy started (supplied by Lettings Agency at start of tenancy in 2012). We also have copies of all Gas Certificates done annually since start of tenancy. I can download a copy of the Certificate from DPS that was issued to the tenant.

    What I don't have however, is the copy of the Prescribed Information the Lettings Agency gave the tenant when they took her deposit and placed it with DPS. The Lettings Agency do not have a copy as it is 7 years ago and do not keep records for this long.

    As I can't prove that Prescribed information with regard to the deposit was given to tenant, does this mean I can't issue Section 21?

    Can I just issue another Prescribed Information now prior to issuing Section 21? I believe that the tenant's mother paid the original deposit, so would I have to send the Mother Prescribed Information re deposit as well?

    Any advice appreciated.

    #2
    You can issue the prescribed information now.

    If the tenant's mother paid the deposit, the agent should have given her the Prescribed Information as well.
    It's quite possible they didn't.

    You could eliminate any issue by returning the deposit to the tenant (and this would help them find somewhere else).

    The issue will only arise if the tenant doesn't want to move out and defends the notice in court.
    Which should only arise as a last resort, unless you're in a huge rush to sell.
    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


      #3
      The N5B doesn't ask for a copy of the PI. It just asks on what date you served it. There's not a problem unless someone makes it one.

      Comment


        #4
        Thank you both for your advice. I may just refund the deposit before serving Section 21 as suggested. I don't think tenant will be keen to move out, so may contest eviction. Probably not worth risking S21 being thrown out if she disputes she received Prescribed information and I can't prove that she had it.

        Comment


          #5
          Fair enough. Just beware of giving tenant a hint that you did not do things by the book. (I'm sure you know about the penalties for not supplying the PI on time.)

          Comment


            #6
            If you want to sell the property, the most sensible thing is, before serving notice, talk to the tenant.
            Explain what you're doing and try and work out a sensible time scale together.

            The problem with serving notice for a tenant is that the required notice of two months puts a deadline on the tenant, which isn't usually intended.
            2 months isn't long to find somewhere new to live, get approved and move in.
            Given a longer period, most of the problems with notice just don't arise.
            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


              #7
              Thank you both JK0 and JPkeates for your good advice.

              Comment


                #8
                JK0 I am not particularly worried about the penalties if she says Prescribed Information not given. As it is 7 and a Half years ago, I think that she has missed the six year window of opportunity to claim. Of course, she wouldn't have thought to make a claim as the Prescribed Information was actually given to her by the Lettings Agent. It's just that I don't have a copy and therefore have no proof of it.

                Comment


                  #9
                  In Jan 2013, the deposit was transferred into your name from the letting agency. At that point, you were required to reissue the PI to the tenants because details of the deposit changed at that point. Therefore, it isn't the letting agency that you need to be chasing for that. Their responsibility ended when you received the deposit.

                  If the deposit has remained in a scheme all this time, you will be able to issue the PI now to make your section 21 valid. Simply compile the necessary paperwork from the deposit scheme's website.

                  If you did not issue PI in Jan 2013, then although you as deposit holder were liable for a penalty, I believe the 6 year window will just have expired for the tenant to claim as the timer starts when you receive it. I believe you will be in the clear for this now, but others can clarify.

                  Comment


                    #10
                    tatemono

                    Thank you for your post. I didn't issue Prescribed Information when the Deposit was transferred into our name in January 2013. I realise now that this was an error. I hope that as it is now six and a half years ago, the tenant can't pursue me for compensation with regard to this omission

                    When I login to the Deposit Protection Service website, I am registered as having received the deposit in March 2012. The involvement of the Lettings Agent who originally lodged the tenant's deposit with the DPS is not referred to.Not sure if this is what usually happens when the tenant's deposit is transferred from one name to another or not?

                    Comment


                      #11
                      yes that would be the case even if you were still using a letting agent. The agent registers the deposit on behalf of the LL and in the LL's name, not the agent's.

                      Comment


                        #12
                        Originally posted by MiniCooper View Post
                        The Lettings Agency do not have a copy as it is 7 years ago and do not keep records for this long.
                        If your Agent is wilfully destroying documents for a live tenancy then I wouldn't be tempted to use them again if I were you.

                        Comment


                          #13
                          Originally posted by DPT57 View Post

                          If your Agent is wilfully destroying documents for a live tenancy then I wouldn't be tempted to use them again if I were you.
                          That was what jumped out at me, too! That seems ridiculously cavalier, leaves them open to all sorts of issues, as OP is now finding out.

                          Comment


                            #14
                            Oh, well it was effectively 'find only'. Landlords need to make sure they acquire all documents from agents at the start in cases like that. They also need some sort of statement about when things were served.

                            Comment

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