Late protection of deposit

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    Late protection of deposit

    Hello, I'm wondering if anyone can help. I've been a tenant for ten years. I wasn't aware if any deposit legislations or such laws throughout my tenancy. Yes, I know, my fault, excuse me for being ignorant of reading up my rights. It started as a fixed AST for 6 months and has ran on as SPT. It has come to light that my deposit was never protected the whole time. I have a no fault notice served and was alerted to non compliance when a scheme emailed me saying my deposit was protected on 26th January. The notice also says the 26th January as the start date.
    To add insult to injury, and, after searching the Internet for answers, im more confused than ever trying to figure out if the notice is valid? I am clear that any time limit for claims is about 3 years too late.
    More information from the agent, explains that they realised my deposit was, in her words 'gone' when they were making changes within the company.
    A letter I received 3 years ago from the company, explaining changes, would suggest that they realised this mistake at that time. I accept the explanation as to non compliance for many years as mistakes do happen, but what I don't accept it's that they knew it wasn't there a few years before they corrected it. Unfortunately, I don't have this in writing, it was a face to face explanation.
    What I would like to know is: Would the time limit on penalties start from the day they realised the deposit was 'gone'? I only ask this because that would be the day they knew they would have had to pay it out of their own pocket, so, therefore, the paid and received date would be at that time (regardless of any monies changing hands)
    Also, I still have not yet had the prescribed information. Don't even know what it looks like.
    sorry to get you all confuzzled but I'm getting myself into a tizzy over this and feel very annoyed from the incompetence of the agent. I don't think the landlord knows either and from my understanding, an agents duty is to inform landlords of all information as this would amount to non disclosure of facts.

    #2
    First of all, the notice isn't valid.
    It's not going to be possible for the agent or landlord to serve you a no fault (section 21) notice without returning your deposit to you first.
    There's no need for you to tell them this and you can safely ignore the notice that they sent you.

    Protecting the deposit late before serving the notice doesn't make the notice valid.
    All it does it make it slightly more difficult to give it you back (but that's not your problem).

    However, at least it means that your deposit isn't gone and you'll be able to get it back at some point.

    The issue with the penalty is more complicated.
    As far as I know you can't make a claim, because of the number of years that have passed.
    This doesn't make any sense, and, if it were a different type of claim, for money owed, for example, the "clock" would only start when you became aware of the issue - which does make sense.
    So you'd have to hope that the court was prepared to make a judgement on that basis, which it might but it hasn''t happened to my personal knowledge.
    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
      Worth 'phoning Shelter 0808 800 4444 - think jpk right (all of post) but perhaps SPTs might class as separate tenancies. See what Shelter says on deposit penalties. Free 'phone number, but expect wait from this overworked charity.

      Wonder what else landlord/agent got wrong. Google "nearly legal section 21" to see everything they need to get right for s21 notice. Suspect they'll take several goes before they get it right. Perhaps they might offer ££££ to encourage you to leave.
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        From the Shelter website about the six year time limit:

        https://england.shelter.org.uk/legal...n_214_claims#3
        Limitation of claim

        A claim must be brought within six years of the date that a 'cause of action' arises.

        This date is likely to be the expiry of the time limit for a landlord/agent to comply with the tenancy deposit protection rules, but it could also be argued that the time limit for a claim starts from the end of the tenancy, since that is the time at which the deposit becomes repayable.

        In some circumstances, the six-year limit would be unfair if it dates from the expiry of the 30-day time limit for compliance, since the issue of deposit protection may only come to the tenant's attention when the tenancy ends. Also, a tenant may continue in occupation for longer than six years, knowing that the deposit was not protected, but not wanting to bring a claim in case of a retaliatory eviction.

        The question of the correct limitation period has not been tested in the courts.
        To my mind it should be 6 years from when the overall tenancy ends (not any particular TA or SPT that is part of that overall tenancy) and the tenant leaves the property, I'm sure some landlords would disagree.

        Unless/until a court makes a ruling on it, a high enough court to make it case law, then it's open to debate.

        Comment


          #5
          Shelter's logic is all over the place, because if a deposit isn't protected a retaliatory eviction would be next to impossible.

          It's quite possible that claims are settled all the time, regardless of the limitation, but they'll never be reported because they're at too low a level and it costs a lot to appeal a case to a higher authority and deposit penalties probably aren't high enough to make it worthwhile.

          If the issue was a debt, the clock would start when the creditor became aware of the debt (not when they could have become aware), and it would be nice if the same principle was followed.
          Tenant's shouldn't be presumed to be experts in being a tenant.
          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
            Originally posted by jpkeates View Post
            Shelter's logic is all over the place, because if a deposit isn't protected a retaliatory eviction would be next to impossible.
            No, their logic is fine here.

            It isn't possible to evict until the deposit is returned or a claim have been bought and the case is over. So a tenant wouldn't want to bring a claim, since 1) they will upset the landlord, and 2) now the upset landlord can legally evict once the case is over.
            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.

            I do not answer questions through private messages which should be posted publicly on the forum.

            Comment

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