Section 21/ deposit not protected

[Dmount]

My tenant has been in the property since January 2007, at which point he signed a 6 month AST continuing on a monthly basis thereafter. I took a deposit from the tenant at the time which i never protected.

I need to sell the property so I served a section 21 notice on the tenant. I think he must be getting advice from someone as he responded that it wasn’t valid as I hadn’t confirmed the deposit position. I don’t think that the tenant would be able to understand the stuff himself so he’s clearly got someone with a bit of knowledge helping him.

I am just seeking advice on how best to proceed. I have so far been avoiding responding to his calls and emails for the time being…. has anyone been in this situation?

I do not have the money to give the tenant (hence needing to sell). Also the EPC is a G. Just looking for constructive comments/ advice only please, I am aware of my obligations under the regs and what ought to have been done previously. I am concerned as to whether the tenant is able to claim compensation and/or a penalty up to 3 x the deposit? A lengthy tribunal case isn’t in anyone’s interests as I live in Spain and I can’t afford to pay anyway.

[jpkeates]

Unless you return the deposit to the tenant, you can’t serve a valid section 21 notice.
Your tenant probably can’t sue you for a penalty because of the time that has elapsed.

The EPC means that you’re at risk of a big fine, and, as you can’t easily resolve the issue by evicting the tenant, could face some expensive improvement notices and large bills.

If there are other things you haven’t done, the section 21 might be impossible even if you do return the deposit.

I wouldn’t assume your tenant is getting help, but, even if they are, you’ve potentially got a big problem coming up.

[Dmount]

I am wondering whether the tenant has grounds to say that he only just found out that the deposit was not protected so that the length of time that has elapsed is not relevant.

I have been reading about Superstrike deposits and I think my tenancy could be affected by this.

the epc was done about 18 months ago. I wonder if I can apply for and exemption on the basis that repairs are extensive

[jpkeates]

I am wondering whether the tenant has grounds to say that he only just found out that the deposit was not protected so that the length of time that has elapsed is not relevant.

That's been held out as a possibility a number of times, but there's no evidence it's ever happened.
The claims are usually decided in courts where there are no reporting, so it's possible it's happened and no one knows.
But the current thinking is that it's not likely unless a senior court sets a precedent.

I have been reading about Superstrike deposits and I think my tenancy could be affected by this.

Again, the time elapsed should protect you.

the epc was done about 18 months ago. I wonder if I can apply for and exemption on the basis that repairs are extensive

You could try that as an option, but you will normally have had to spend £3,500 making improvements before you can do that.

[Dmount]

I wonder if there’s another way around it. I put the rent up annually and it’s due up in a few months. I know the tenant can’t afford a further increase as he recently retired due to ill health. He won’t agree to a further increase (he said as much last year) so is it possible
I could do a section 8 in response to not being able to agree the rent going up

[KTC]

There's no section 8 ground because the tenant don't agree the rent increase. If it's an informal proposal, then they can just ignore you. If you give a formal notice under s13, then they can take it to tribunal for a determination.

Just return the deposit and then serve the notice again. The notice period's going back down to 2 months from 4 months on 1 October so you don't even have to wait as long as you would had done before.

Deposit penalty wise you should be okay. You fall squarely within the cases covered by s215A of Housing Act 2004 as inserted by s32 Deregulation Act 2015 (deposit before 6 April 2007, SPT arising after) and it's arguable a new limitation period arose from that, but even that has just been over 6 years so out of limitation.

[Dmount]

That’s good , I assumed that limitation would have started running when the tenant became aware that the deposit had not been protected.

if the tenant gives notice to leave of his own accord, does this mean he won’t have any action open to him
id I don’t return the deposit.

[boletus]

Unless you return the deposit to the tenant, you can’t serve a valid section 21 notice.

Sorry to be pedantic but;

Subsections (1) and (2) do not apply in a case where—

(a)the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant

By simply returning the deposit, the landlord is giving up a bargaining chip.

So in this case, the landlord could agree with the tenant to a monthly rent increase of the deposit divided by six, paid for by the deposit.

And/or possibly negotiate a deed of surrender dated in 6 months as part of the agreement.

Not a nice situation for either party but one way or another the end result will be the same.

[Kape65]

You could try just selling it at auction with the tenant in situ.

[Dmount]

What landlord is going to buy with in EPC rated G though . And also taking on the burden of a deposit that hasn’t been protected . Presumably their lawyers would be advising strongly against the purchase until those issues resolved

[jpkeates]

Sorry to be pedantic but;

Not at all, you are quite right.

[KTC]

By simply returning the deposit, the landlord is giving up a bargaining chip.

Not much of a bargaining chip. Landlord wants possession, landlord can't serve a valid section 21 notice until and unless the deposit is returned less agreed deductions. What deductions would the tenant agree to? They don't have to agree to any rent increase, why would they here.

[boletus]

Not much of a bargaining chip

Nevertheless still a bargaining chip in negotiations. Most tenancies aren't ended via possession order.

[boletus]

...and section 13.

[Kape65]

What landlord is going to buy with in EPC rated G though . And also taking on the burden of a deposit that hasn’t been protected . Presumably their lawyers would be advising strongly against the purchase until those issues resolved

The same LL that doesn't check the legal pack and pays cash, plenty of those about. Not sure what options you have, if you can't afford to return the deposit I'm not sure how you are going to pay to improve the property and raise the EPC