Deposit Protection upon statutory periodic tenancy arising?

[eras]

Hi everyone,

This is my first post on the forum and it relates to deposit protection upon a statutory periodic tenancy arising after the expirty of a fixed term AST.

BACKGROUND

I entered into an 12 month fixed term AST in 2020. The dates on which the fixed term started and ended was clearly defined. There were no other terms defined so far as creating a contractual periodic tenancy at the end of the fixed term tenancy.

The fixed term came to an end in silence with no contact from the landlord or his agent. I simply continued to pay rent. In fact, there were no contact between us for over 22 months. Nevertheless, its safe to say that at the expiry of the fixed term, A NEW statitory periodic tenancy came into existance. I want to be very clear that this is a SPT, which is a new tenancy arising under the Housing Act. It is NOT a "continued as a periodic" or "rolling" or "continued" tenancy, something that many seem to get confused over.

DEPOSIT PROTECTION

At the start of the fixed term tenancy the landlord's agent "registered" my deposit with TDS under the "Insured" scheme. The expiry date was explicitly stated on the registration certificate.

SECTION 21 NOTICE

The landlord has now served a section 21 notice. I suspect that my deposit was not "re-registered" or "protected" (as they call it) within 30 days of the new statitory periodic tenancy arising. I noticed that on the day the section 21 was served that the agent updated the original registration on TDS and changed the end date to "periodic". I assume this was done so as to allow for serving the section 21. However, I believe there is a catch!

NON-COMPLIENCE

When you google "should I re-protect deposit after fixed term" you will find that most websites says NO. Even TDS seems to confuse (perhaps deliberately?) the matter: https://www.tenancydepositscheme.com...ancy-periodic/

If the tenant decides to stay on after the fixed-term and the landlord agrees, the Housing Act provides that it will run on a month-by-month or week-by-week basis depending on how the rent is paid. This is a periodic tenancy.

The second paragraph in TDS's article is crucial and this is what makes a statitory periodic tenancy different to a contractual periodic tenancy. That TDS is doing there is that are explaining a CONTRACTUAL PERIODIC TENANCY (CPT) and NOT a SPT, which I think is what most people think of when they were to a periodic tenancy. The difference here is if you have a CPT you do not have to re-register or do anything. HOWEVER, when you have a SPT, it appears to me that you DO! I find TDS article misleading. Anyway..

So, when there is NO contact between the tenant and the landlord at the end of the fixed term, and there is NOTHING in the AST that states that at the end of the tenancy it is to continue as a contractual periodic tenancy, then a NEW statitory periodic tenancy is created. This means that the initial requirements of an authorised scheme must be complied with.

Am I correct when I then say that the section 21 served is invalid, because although the landlord has now complied with 215(1)(a), he still failed to comply with 215(1)(b) and the only way now to serve a section 21 is to repay the deposit and to serve a fresh section 21??

Section 215 of the Housing Act states

"(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when–

...

(b) section 213(3) has not been complied with in relation to the deposit

Section 213(3) states:

(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 30 days beginning with the date on which it is received.

[jpucng62]

Regardless of the legality - why would you want to stay in a property where the LL wants you to leave & your relationship with the LL will have completely broken down?

Staying in a property while the LL pursues you through the courts to get back their property is pretty stressful - why not find somewhere else and go at a time of your choosing?

[theartfullodger]

The tenancy -and thus the contract -continues at the end of a fixed term as periodic, all terms and clauses except for those over ending tenancy. Do you do have a contract.

Check s21 validity by googling "nearly legal section 21" and use the checklist you find.

To sue for unprotected deposit see Shelter's excellent guide on how to on their website.

Thatcher's 1988 Housing Act s5(1) means landlord is unable to evict without court, court order, bailiffs etc - probably some 6 months after a valid s21 is served.

What landlord may complain of a tenant excercising rights granted by Thatcher? Same act that permits use of s21?

For more advice see Shelter's website.

Best wishes to all.

[KTC]

Who knows. The answer to the question whether the s21 is valid depends on TDS answer when either the landlord or tenant formally ask them whether when the fixed term ended and the SPT arose do they consider that "the deposit continues to be held in connection with the" SPT.

[jpkeates]

I want to be very clear that this is a SPT, which is a new tenancy arising under the Housing Act. It is NOT a "continued as a periodic" or "rolling" or "continued" tenancy, something that many seem to get confused over.

The confusion is due to there being both a legal meaning and a conventional English meaning of the word tenancy. An "English" tenancy can consist of one or a series of "legal" tenancies.

When you google "should I re-protect deposit after fixed term" you will find that most websites says NO. Even TDS seems to confuse (perhaps deliberately?) the matter: https://www.tenancydepositscheme.com...ancy-periodic/

Googling legal advice is always risky.
In this case, though, for most likely situations "most websites" would appear to be correct.

The difference here is if you have a CPT you do not have to re-register or do anything. HOWEVER, when you have a SPT, it appears to me that you DO! I find TDS article misleading. Anyway.

You are wrong in what "appears to you" and while the article isn't as clear as it possibly could be (but what is?) it's correct.

So, when there is NO contact between the tenant and the landlord at the end of the fixed term, and there is NOTHING in the AST that states that at the end of the tenancy it is to continue as a contractual periodic tenancy, then a [B]NEW statutory periodic tenancy is created. This means that the initial requirements of an authorised scheme must be complied with.bow)

That's not correct.
Housing Act 2004 215B lays out the regulations that arise when a new tenancy is created following a previous tenancy and confirms that, provided the previous deposit protection was compliant and was in place when the new tenancy began, no new protection is required.


You need to read all the legislation, not just stop when you think you have the answer (something that has caught me out on many occasions!)

Am I correct when I then say that the section 21 served is invalid, because although the landlord has now complied with 215(1)(a), he still failed to comply with 215(1)(b) and the only way now to serve a section 21 is to repay the deposit and to serve a fresh section 21?

Not unless you can persuade a court (or the landlord/agent) that the deposit protection ended before the new tenancy began and that therefore the deemed compliance created by 215B did not happen.

I don't know how the TDS insured scheme works, but I would assume that it would be odd if it were possible to retrospectively change the end date of a tenancy from an actual date to "periodic" when the protection had already expired.

[DPT57]

If the insurance wasn't renewed until just before the s21, then there was a period where it was not protected. You may be able to sue the landlord for a penalty if you wish. I am not sure that protecting it late is sufficient to make a subsequent s21 valid, but it may be.

If the landlord wants you out, they will just refund the deposit and serve a fresh s21.

In your situation I would probably use ghe breach to negotiate a leaving date suitable to me and a decent reference.

[philrosenberg]

Maybe take a step back and think about what you intend to gain and what effort you intent to put in.

But first the legals - duble check your tenancy agreement. Many of them state that they automatically become contractual periodic tenancies at the end of the fixed term. Note they don't have to use the words contractual periodic, it might just say "continues month to month" or some such phrase. If yours says that, then everything you just posted is pointless anyway.

Secondly the legislation you quote states "Where a landlord receives a tenancy deposit in connection with a shorthold tenancy...", I don't think there is any likelihood that you gave your landlord another deposit when your fixed term ended, therefor the landlord did not receive a deposit at that time and therefore the landlord was not required to insure the deposit that they did not receive. The reality is that the original deposit simply rolled over into the periodic tenancy and remained protected whether it was contractual or statutory. The landlord only received it once, so only needs to protect it once. The only difference is that if it is statutory, then if the landlord failed to protect then he has done so twice, so he can be punished twice and also if he was late protecting it during the fixed term, he was still late for a contractual periodic, but has now potentially become on time protecting it for a statutory periodic.

There is some more information at https://www.nrla.org.uk/resources/cr...odic-tenancies.

But back to what you want and how/if you'll get it. Let's imaging for a second that you have discovered a clever little loophole that nobody else has ever found that you think means the section 21 doesn't apply. The reality is that if it gets to court, the judge will simply rubber stamp it and say that as far as they are concerned the landlord has done everything they reasonably could have and they've seen this situation a thousand times before. You will put a lot of fight up for no gain. Even if you did convince a judge that the deposit was not protected, then the landlord can simply give you the deposit back, then issue another S21 notice. Then you get the joy of going through the whole procedure again. More pain, no particular gain.

I'm sorry that your landlord has asked you to leave. It sucks if you want to stay and can't. But I don't see you getting anywhere down this road. To me the landlord appears to have done everything right here. I think you'll just generate yourself a lot of heartache and waste time that you could be spending finding a new place.

Good luck.

[jpkeates]

the legislation you quote states "Where a landlord receives a tenancy deposit in connection with a shorthold tenancy...", I don't think there is any likelihood that you gave your landlord another deposit when your fixed term ended, therefore the landlord did not receive a deposit at that time and therefore the landlord was not required to insure the deposit that they did not receive.

That's not correct, the courts ruled in Superstrike that when a statutory periodic tenancy began, the landlord did receive the deposit again (even if no money actually moved).
That's why it was necessary in in 2015 for 215B to be added into the Housing Act (2004).

There's no penalty for allowing a deposit to become unprotected, so the only issue is whether it was protected when the periodic tenancy arose because that impacts the validity of a section 21 notice.

I don't use TDS or insured schemes generally, so I have no idea at what point a TDS insured protection ceases.
It doesn't appear to automatically be the end of the tenancy term, because there's provision for making claims or a period for returning the deposit, but I don't know that for certain.
As long as it was protected at midnight when the fixed term ended, if the original tenancy began after 2007, it was protected when the periodic tenancy began, and no new protection or Prescribed Information is required.

If it wasn't protected at midnight, but was protected within 30 days afterwards (which may require an update to the TDS records), the issue affecting a section 21 notice is the Prescribed Information, which can be remedied without returning the deposit, by serving the new PI details to the tenant.

If it wasn't protected at midnight, and then not protected within 30 days, the protection is not compliant and, for a valid section 21 notice to be served, the OP would be correct and the deposit would need to be returned to serve a valid section 21 notice.

I don't think either of the latter two scenarios are likely (or, even if they happened, that the tenant could discover if it had happened).

If the TDS protection doesn't automatically end when the fixed term does, this is all academic anyway.

[philrosenberg]

jpkeates then I satand corrected and have learnt something - thanks.

As you said though if the deposit remained protected, then the end result is similar. But thank-you for the correction.

[eras]

Regardless of the legality - why would you want to stay in a property where the LL wants you to leave & your relationship with the LL will have completely broken down?

You assume I want to stay - I do not.

My question relates to whether the deposit was protected in the way that it should have been protected. And if not, whether an action arise under section 214.

Staying in a property while the LL pursues you through the courts to get back their property is pretty stressful - why not find somewhere else and go at a time of your choosing?

completely agree - and this is what i'm doing.

thanks you

[eras]

The tenancy -and thus the contract -continues at the end of a fixed term as periodic, all terms and clauses except for those over ending tenancy. Do you do have a contract.

Check s21 validity by googling "nearly legal section 21" and use the checklist you find.

To sue for unprotected deposit see Shelter's excellent guide on how to on their website.

Thatcher's 1988 Housing Act s5(1) means landlord is unable to evict without court, court order, bailiffs etc - probably some 6 months after a valid s21 is served.

What landlord may complain of a tenant excercising rights granted by Thatcher? Same act that permits use of s21?

For more advice see Shelter's website.

Best wishes to all.

Thank you for the link to shelter's guide

I do, respectfully, disagree with something you said though:

The tenancy -and thus the contract -continues at the end of a fixed term as periodic, all terms and clauses except for those over ending tenancy. Do you do have a contract.

What you are describing here is a Contractual Periodic Tenancy (CPT). It arises out of what is agreed in the initial fixed term agreement. The tenancy "continues" as a month-to-month. Another way of saying it is that it "rolls over" as a periodic tenancy. There are technical terms found in past cases and in part of the legislation. The key bit here is that the the "agreement" and the "tenancy" does not come to an end.

A statitory periodic tenancy (SPT), on the other hand, arise out of section 5 of the Housing Act, and it arises only when there is no other agreement in existance. This is after a fixed term agreement comes to an end at the expiry of the fixed term and only when there is no terms in the agreement that states how the tenancy is to continue after the fixed term. In such cases, a new statitory tenancy, which is a new agreement, arises.

Summary of Key Difference:

CPT: The fixed term agreement does not end but rather it continues periodically.
SPT: The fixed term agreement ends. A new agreement arises (A statitory periodic tenancy)

Best wishes

[eras]

Who knows. The answer to the question whether the s21 is valid depends on TDS answer when either the landlord or tenant formally ask them whether when the fixed term ended and the SPT arose do they consider that "the deposit continues to be held in connection with the" SPT.

Hi KTC,

You nailed it. You managed to frame in one paragraph something that took me 10 minutes to explain to TDS.

The Question: "When a tenancy agreement comes to an end at the expiry of the fixed term and a new statitory periodic tenancy arises, do I need to re-register/re-protect the deposit I received in connection with the fixed term agreement?

The Answer: " If you protected the deposit under the Insured Scheme, then every time a new agreement arises (be it agreed and signed or SPT), you need to re-register/re-protect the deposit."

This was shocker, especially almost all the information out there, includings TDS own articles, suggest otherwise. They describe CPT in their articles but then never mention the distinction. The end result is total confusion (perhaps delibereate? who knows)

[KTC]

I do, respectfully, disagree with something you said though:

What you are describing here is ....

We know the difference, and theartfullodger is also correct. Section 5(3)(e) states "subject to the following provisions of this Part of this Act, the other terms are the same as those of the fixed term tenancy immediately before it came to an end, except that any term which makes provision for determination by the landlord or the tenant shall not have effect while the tenancy remains an assured tenancy."

[KTC]

The Answer: " If you protected the deposit under the Insured Scheme, then every time a new agreement arises (be it agreed and signed or SPT), you need to re-register/re-protect the deposit."

This was shocker, especially almost all the information out there, includings TDS own articles, suggest otherwise. They describe CPT in their articles but then never mention the distinction. The end result is total confusion (perhaps delibereate? who knows)

But that's not the answer though. There's nothing stopping the scheme from continuing to provide valid protection on replacement tenancies. In practice, custodial schemes does that but insurance schemes doesn't.... EXCEPT they do for statutory periodic tenancies that arise after a fixed term so long as the landlord indicates that's what's happening/happened.

You need to check the terms of the TDS scheme the deposit was protected under. The legalese, not the everyday article version, and see what it says exactly. And you need to find out formally in writing what happened around the time the fixed term ended. Only TDS or your landlord can tell you that.

[jpucng62]

My question relates to whether the deposit was protected in the way that it should have been protected. And if not, whether an action arise under section 214.

So.....if you have suffered no loss why would you want to make a claim? Just because you can doesn't mean you should.

RRO are sometimes completely disproportional to the offence - and in this case you appear to be splitting hairs - and the stress on both sides would, I imagine, be quite significant.

Find a new place, move out at your convenience and get on with your life.