Tenancy issues - No Deposit Scheme, demanding deposit back

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    #16
    Originally posted by KTC View Post
    I don't understand/agree that a section 21 notice isn't "associated with a specific tenancy". An existing s21 notice is invalidated by the granting/agreement of a new tenancy between the landlord and tenant. s21(2) of the Housing Act 1988 are there specifically to provide an exception to allow a s21(1) notice to roll over to apply to a SPT.
    I'd be interested to see any case where a new tenancy has been granted which invalidates a previous served s21 notice (es[especially given that the chances of this arising must be remote).
    s21(2) is, I think, just there to cover off the SPT issue.

    Paragraph 38 of Superstrike judgment explicitly says "the tenant should be treated as having paid the amount of the deposit to the landlord in respect of the new tenancy, by way of set-off against the landlord's obligation to account to the tenant for the deposit in respect of the previous tenancy". Whether you summarise that as the landlord deemed to have returned the deposit in full, or go with "with such deductions as are agreed between the landlord and tenant", the effect is still the same.
    I think that's actually the reverse of what's being said.
    It fairly explicitly says that the receipt of the deposit happens because the deposit hasn't been returned - that's what set-off means in that context.

    Further, s215B of the Housing Act 2004 (deemed compliance) subsection (1)(b) - "(ignoring any requirement to take particular steps within any specified period)" - would make absolutely no sense otherwise. It explicitly allow for deemed compliance in a replacement tenancy even if the initial requirements was not compiled with on time. If the landlord must return the deposit or wait for the tenant to sue, there would be no point to allow them deemed compliance in a future replacement tenancy.
    Yes, there would. It would mean that the landlord can protect the deposit and not have to repeat the process with each new tenancy in order to avoid the s214 penalty for non-compliance.
    It doesn't mean, as I see it, that s215(1A) shouldn't still apply.

    That part of the Deregulation Act was designed to clear up the mess created by Superstrike, where well intentioned landlords were being caught out retrospectively on a technical problem with the law of property. I don't see any reason to infer that it was also intending to give greater scope to use section 21 notices.

    I cannot agree with Tessa post there. That was from a couple of months after Superstrike and long before Deregulation Act. I don't know if her views have changed since then. I don't see how one can logically go from new tenancy, all the obligations applies afresh with new additional penalty for non-compliance, but somehow the sanction from the previous tenancy continues even though the tenancy has ended.
    The date of the post concerns me also, but as I don't see the changes in the Deregulation Act as having the same effect as you do, it hasn't actually changed my thinking.

    If you follow Nearly Legal s21 flowchart, the logic correspond to my views.

    Start at page 13 - is this the first tenancy agreement, if so within 30 days, if not was it protected in a previous tenancy with no limitation on dates.
    That's more concerning.
    I feel that the sentence "I don't agree with Nearly Legal" is usually a great blaring klaxon* of a warning.

    *Other sirens are available.
    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


      #17
      Originally posted by llplug
      Sorry, going back to my original question - Should I return deposit to tenant OR put in DPS scheme late (now), accepting that I could pay a penalty by putting into DPS late? As I have a tenant from hell, I would be better protected longer term, SPT etc by depositing late?
      In my view, you're fine protecting it in a custodial scheme so long as you have no intention of serving a s21 notice while the current fixed term tenancy is ongoing. jpkeates disagrees and think you wouldn't be able to serve a valid s21 at any time unless and until you return the deposit first (or have an agreement with the tenant to deduct the deposit against unpaid rent say).
      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


        #18
        Despite my disagreement about the long term consequences, there's no downside to following KTC's advice and your protecting the deposit and giving the PI to the tenant now.
        Given the tenant's demands and the chance that you'll change your mind, I'd suggest using an insured scheme (so you keep the actual cash in your control).

        KTC is usually right about legal issues anyway!
        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


          #19
          Just offer, in writing, 2xdeposit +£1 regarding your late (you were late) breach of the law. Law passed twice by parliament, 2nd time giving landlords more than twice the time to do some simple admin.

          You want to do all you can to avoid legal disputes.

          Oh I do hope my agents are protecting deposits properly
          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


            #20
            Originally posted by llplug
            received a reply to the effect I am to late. "See you in court".
            Well, it is too late for no penalty but you knew that already. Like theartfullodger said, make a offer to settle. I'll make it a formal Part 36 offer to avoid any argument. The +£1 is unnecssary, if you made the offer, they need to beat it. It is highly unlikely for a court to award the maximum 3x for a late (as opposed to no) protection.

            Don't forget to serve the prescribed information correctly.
            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


              #21
              This is obviously a complex situation but how do you now the tenant really will go to court? Is there enough "dosh" in it for the no win no fee types? Tenant may not do it alone. Also can the OP now issue a section 21 now the deposit is protected? I think I would be tempted to do that if I could at this stage and deal with the fallout sooner rather than later.
              Unshackled by the chains of idle vanity, A modest manatee, that's me

              Comment


                #22
                Originally posted by islandgirl View Post
                Also can the OP now issue a section 21 now the deposit is protected?
                No, OP is still in the original tenancy. And probably still in the first four months anyway (assuming England).
                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


                  #23
                  Following through with legal action is their absolute right.

                  Not paying rent is breach of contract.

                  From what you have stated, you will undoubtedly lose a deposit protection case:

                  Your choice, your decision, what you do.
                  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


                    #24
                    Originally posted by llplug
                    This is the original tenancy, 2.5 months into tenancy, they have said they intend following through with legal action and will withhold any rent until matter resolved.
                    You can't stop them taking legal action.

                    But nor can they withhold rent, which I would, politely, point out to them.
                    Once they owe two month's rent, you can serve notice (under section 8, Housing Act) and they can be evicted.
                    That notice can be issued regardless of the deposit failure - however, it is quite possible that, when the issue in court, the judge would award the penalty associated with the deposit failure and deduct the amount from the rent owed.

                    So, tactically, it might be worth waiting until the tenant owes enough rent so that even if four times the value of the deposit is deducted, two month's rent is still owed. Which is likely to be about seven month's (or so)'s rent.
                    Originally posted by llplug
                    I was reading through tenancy agreement tenants had signed, guess this does not hold water, even though it doesn't mention a Deposit Scheme?

                    Handling of the Deposit

                    The Landlord will arrange for the Deposit to be held in a bank or building society account
                    I would say that that is likely to encourage the judge to award the maximum penalty, because it makes it very clear that you intended not to do what you are required to with regard to the deposit.

                    Where on earth did you find a tenancy agreement with a sentence like that in it?

                    For some tenants, seeing a sentence like that in a tenancy agreement would tell them exactly what kind of landlord they were dealing with.
                    They'd regard handing over their deposit as an investment opportunity to at least double their money.

                    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


                      #25
                      Originally posted by KTC View Post

                      No, OP is still in the original tenancy. And probably still in the first four months anyway (assuming England).
                      Thank you for the clarification. I think in this circumstance I would go for eviction as soon as they owe 2 months and take any penalty awarded to them on the chin. I could not stand to wait 7 months (though I see the logic)
                      Unshackled by the chains of idle vanity, A modest manatee, that's me

                      Comment


                        #26
                        Was this an old tenancy agreement rather than a current agreement from a reputable source, please?

                        If so, wonder what else is wrong ...
                        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


                          #27
                          I can't seem to reason with tenants, seems intent on legal action which is bewildering.
                          Does anyone know what these "no win, no fee" types actually take/make? Would I end up paying penalty + there legal fees?
                          Do I sit back and wait or as jpkeates suggests, get in quick with the likes of a Part 36?

                          Comment


                            #28
                            I'm sorry you are in this situation , from what i have heard from someone these 'no win no fee' type of 'solicitors' take a massive chunk out of any claim for their own fees , which would leave your tenant with rather less money that he/she would have anticipated.

                            One of the reasons why i have now sold up is i had some bad tenants in and i lost all my money

                            please keep us updated

                            Comment


                              #29
                              Originally posted by llplug View Post
                              Does anyone know what these "no win, no fee" types actually take/make? Would I end up paying penalty + there legal fees?
                              The no win no fee firm is hoping that you will resist at first and then settle.
                              While they will take some of the penalty awarded to the tenant, their main goal is to rack up massive legal costs.
                              These are usually many thousands of pounds.

                              If it goes to court, they'll often hire a barrister, to increase the costs further.

                              The formal term for no win no fee is taking the case on a conditional or contingent basis.
                              When a case is taken on that basis and won in court, the legal fees awarded are subject to a bonus, which can be up to 100% of the costs (it's usually less than that, but it can increase them substantially).

                              They only take on cases that look like guaranteed winners, and will abandon any claims that turn out to be less than certain.
                              That usually takes a short amount of time, any landlord who gets a legal letter is either able to send back evidence that the claim is wrong or the landlord is pretty much guaranteed to lose.
                              Then it's just a question of how much the landlord is going to pay.

                              It's extremely expensive and will escalate quickly.

                              Do I sit back and wait or as jpkeates suggests, get in quick with the likes of a Part 36?
                              It wasn't actually my suggestion, but I'd follow the advice and do exactly that - the tenant owes you rent, so you can use that debt as part of the settlement. An offer to settle might dissuade any no win no fee firm from taking the case, so it's probably worth it just for that.
                              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


                                #30
                                Originally posted by islandgirl View Post
                                Thank you for the clarification. I think in this circumstance I would go for eviction as soon as they owe 2 months and take any penalty awarded to them on the chin. I could not stand to wait 7 months (though I see the logic)
                                Sorry for the late response.

                                The problem with this approach is that the court is likely to offset the penalty against the rent owed, which would mean that the mandatory ground for eviction would fail.
                                Getting possession on a discretionary ground that isn't ASB isn't easy - because, being realistic it's disproportionate in most cases.
                                If a tenant owes you a sum of money less than two month's rent, an appropriate court action would probably be to order them to pay it.
                                Ordering them to pay it and making them homeless seems a bit over the top.

                                Parliament clearly intended that the threshold for making someone homeless as well was a debt of two months' rent.

                                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

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