Deposit Protection upon statutory periodic tenancy arising?

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  • jpkeates
    replied
    Originally posted by KTC View Post
    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.
    I've checked and the TDS confirm that there's no need to protect the deposit.

    To be fair, they are pretty clear about it in their FAQ section - https://www.tenancydepositscheme.com...ancy-periodic/

    First, they explain what they mean by a Periodic Tenancy - "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."

    Then they answer the question - "Does the deposit need to be re-protected when the tenancy turns periodic?

    If the deposit is held in either TDS’ Insured or Custodial scheme, the deposit is protected until the tenancy ends. As the tenancy turning periodic does not indicate the end of the tenancy, then the deposit would not need to be re-protected provided the tenant(s), landlord(s), premise, and deposit scheme all remain the same. However, there may be different rules for other tenancy deposit protection providers."

    Other than the usual combined English and legal meanings of tenancy (because the tenancy doesn't "turn" periodic) that pretty much clear it up.

    The explanation continues to say that, if a new fixed term is created and the deposit is insured, the deposit does need to be reinsured (and the PI reserved).

    Interestingly (although I'm not a TDS customer so I have no experience of this), it also appears that the need to update the system to supply a new end date or mark the tenancy as periodic for an insured deposit applies only where the deposit is protected by a letting agent. So even that seems to be essentially cosmetic.

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  • CStevens
    replied
    Hi, sorry to be the bringer of bad news but that's not right. You do have a statutory periodic tenancy but this is not deemed to be a new tenancy by the TDS and they will not have required the landlord to deal with the deposit process again sorry. Also, in respect of the section 21 notice, provided everything else is in order then the notice will be valid.

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  • jpkeates
    replied
    Originally posted by eras View Post
    What you are describing here is a Contractual Periodic Tenancy (CPT). It arises out of what is agreed in the initial fixed term agreement.
    What is being described is not a contractual periodic tenancy, because in a contractual periodic tenancy the terms relating to ending the tenancy remain in force.

    You are falling victim to the same English/legal terminology issue, where "tenancy" has two slightly different meanings, the legal term being precise and the English term being looser.
    Most people renting a property over a long period would refer to the entirely of the let as their tenancy, and would be surprised that legally it might comprise a series of sequential individual tenancies.

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  • jpucng62
    replied
    Originally posted by eras View Post

    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.

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  • KTC
    replied
    Originally posted by eras View Post
    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.

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  • KTC
    replied
    Originally posted by eras View Post
    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."

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  • eras
    replied
    Originally posted by KTC View Post
    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)

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  • eras
    replied
    Originally posted by theartfullodger View Post
    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:

    Originally posted by theartfullodger View Post
    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

    Leave a comment:


  • eras
    replied
    Originally posted by jpucng62 View Post
    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.

    Originally posted by jpucng62 View Post
    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

    Leave a comment:


  • philrosenberg
    replied
    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.

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  • jpkeates
    replied
    Originally posted by philrosenberg View Post
    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.

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  • philrosenberg
    replied
    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.

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  • DPT57
    replied
    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.

    Leave a comment:


  • jpkeates
    replied
    Originally posted by eras View Post
    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.

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  • KTC
    replied
    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.

    Leave a comment:

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