Effect of s.21 Notice if deposit is unprotected?

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    #16
    thanks westminster

    landlord now trying to threaten me with court action as I paid rent to LA as asked by them to cover repairs instead of him its starting to get really messy.

    I have another dilema now rent is due but I Know if I pay it it will either dissapear forever (into ll blackhole of debts) or he will now suddenly protect my rent as if deposit which would be so unfair to do now after having to practically do everything bar protect it for him.
    what would you advise? community legal advice said don't pay he will have to counter claim for it.

    You see really I want letting agents as I feel their working practices caused this situation and they have been unhelpful.

    Comment


      #17
      Originally posted by rebecca.483 View Post
      landlord now trying to threaten me with court action as I paid rent to LA as asked by them to cover repairs instead of him its starting to get really messy.
      Were you previously paying rent direct to LL?

      I have another dilema now rent is due but I Know if I pay it it will either dissapear forever (into ll blackhole of debts) or he will now suddenly protect my rent as if deposit which would be so unfair to do now after having to practically do everything bar protect it for him.
      I don't really understand the dilemma? If rent is due to LL, pay the rent.

      Comment


        #18
        westminster thanks

        sorry its taken so long to reply I wrote it hit post and "computer says no" happened, what I said was along the lines of...
        Yes I have LL bank details
        I haven't mentioned the amicable agreement we tried to come to regarding deposit ie me not paying rent and this being the deposit. but LL would not sign to agree.
        and dilema was a poor choice of words I had a stroppy 2year old demanding my attention loudly waking up my 3 month old so sorry but what I ment was LA have said deposit not their problem as LL responsiblity as they have in writting. So am worried if court decides just LL responsiblity then will never see my deposit again as he seems to be in a blackhole of debt? (even LA say I should not accept a cheque on handover as it would bounce!) or the flip side is he will now use my rent to protect the deposit and that will mean all the stress and the efforts I have made over the last 6 months will be for nothing and there is no reprimand for law breakers and the LA working practises that I feel contributed to this directly will continue.

        As community legal advice say its ok not to pay I was after either a confirmation of this advice or even that I should ask another solictor to double check, as this will be the first time I have broken the tenancy agreement and it goes against my personal sense of right and wrong but as every one else has broken tenancy agreement and acted so moraly wrong where exactly in law do I stand.

        I would appricate your view as I have seen some of your posts and you seem to have a really good knowledge of the legislation.
        I have had wonderful helpful LA and LL before and know that things can go well when issues arise, It is LA and LL like this that put Tenants in bad unessasary situations

        Comment


          #19
          Originally posted by rebecca.483 View Post
          LA have said deposit not their problem as LL responsiblity as they have in writting. So am worried if court decides just LL responsiblity then will never see my deposit again as he seems to be in a blackhole of debt?
          This does not mean you cannot claim against the agent for the 3x penalty. Both are equally liable under the statute. Yes, the agent may have a contract with the LL saying LL responsible, but that is a contract between them. So, let's say you claimed successfully against the agent; the agent could then potentially claim against the LL because of the contract between them.

          However, in terms of claiming just for return of the deposit (no 3x penalty), then the LL is solely liable.

          or the flip side is he will now use my rent to protect the deposit and that will mean all the stress and the efforts I have made over the last 6 months will be for nothing and there is no reprimand for law breakers and the LA working practises that I feel contributed to this directly will continue.
          You must try to see the 3x penalty for what it is; a penalty for failing to protect the deposit, not compensation for general stress and hassle with the agent/LL.

          Therefore it would not be reasonable to act in a way calculated to help ensure the deposit is not protected. And if you issue a claim, there is nothing to stop the defendant protecting the deposit late with the DPS anyway. This would probably defeat your claim because there was a recent High Court case on this issue, therefore binding on lower courts (unless or until the High Court case is overturned in an appeal).

          I would not advise pursuing a deposit non-compliance claim without getting legal advice.

          As community legal advice say its ok not to pay I was after either a confirmation of this advice or even that I should ask another solictor to double check...where exactly in law do I stand.
          Do you mean not pay the last month's rent as a way of getting the deposit back? If so, doing this is not unusual, but legally it's still a breach of contract. I don't know the full details of your situation, or why exactly the LL is threatening legal action against you, but if the community legal advice people have told you to it's okay, then I would probably trust their advice.

          Comment


            #20
            I am going to ask a local solicitor as they can take a look at everything they need to, as you say it is hard to advise without whole picture.
            I know 3x deposit is not compensation and is a fine as such but if hopefully it stops the letting agents continuing with their current way of taking money but not responsiblity, if they don't have to pay I don't think they will "learn the lesson".
            I read about the first high court decision and as you said I also noted the fact that LL/LA can protect deposit last minute which in my view is unfair if as in this case there quite clearly is no intent to protect, if for valid reasons it was registered late or just even by ignorance of law that would be different and can see they should perhaps not be judged so harshly. It seems the unscrupulous LL/LA benefits from this latest decision, is your personal view similar do you think the appeal should be sucessful or am I reading too much into the ...or until. I am glad to hear there is an appeal although I don't know circs regarding why deposit paid late, is there any info anywhere on this yet or will it be a long while, I would be willing to go to higher courts with my case if I had to.

            and the LL threatening legal action is silly quick explaination is he is trying it on to get me to back down as I paid rent for last 2 months to LA as they had to pay workmans bills that had fixed floor in bathroom after flood from malfunctioning toilet overflow that wouldn't stop or else he would have been taken to court by tradesman for unpaid bills. See silly and he must know it I am sure or else he must be more foolish than I thought.

            sorry I tend to go on, thank you for your time and wisdom

            Comment


              #21
              Originally posted by rebecca.483 View Post
              I read about the first high court decision and as you said I also noted the fact that LL/LA can protect deposit last minute which in my view is unfair if as in this case there quite clearly is no intent to protect, if for valid reasons it was registered late or just even by ignorance of law that would be different and can see they should perhaps not be judged so harshly. It seems the unscrupulous LL/LA benefits from this latest decision,
              The trouble is, the penalty is the same whether the reason for late compliance is 'valid' or not. The court has no discretion to apply a reduced penalty taking into account the reason for late compliance. You also forget there is a second sanction; the LL cannot serve a s.21 notice until the deposit is protected, and this is unavoidable.

              is your personal view similar do you think the appeal should be sucessful or am I reading too much into the ...or until.
              I agree with the decision.

              I am glad to hear there is an appeal although I don't know circs regarding why deposit paid late, is there any info anywhere on this yet or will it be a long while
              It is not known whether there will be an appeal or not. You can find the full judgment of the High Court case in a link at the bottom of this blog post.

              http://blog.painsmith.co.uk/2010/02/...cision-on-tdp/

              Comment


                #22
                The decision is accessible direct at http://www.bailii.org/cgi-bin/markup...method=boolean.
                JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                4. *- Contact info: click on my name (blue-highlight link).

                Comment


                  #23
                  With any luck, someone else will provide a third link to the same thing.

                  Comment


                    #24
                    Originally posted by westminster View Post
                    With any luck, someone else will provide a third link to the same thing.
                    Sorry- but a direct link to the case was not what you provided.
                    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                    4. *- Contact info: click on my name (blue-highlight link).

                    Comment


                      #25
                      Originally posted by jeffrey View Post
                      Sorry- but a direct link to the case was not what you provided.
                      I am well aware of that, Jeffrey. But just as you continue to insist that a direct link to the judgment in Draycott -v- Hannells* is vastly superior to an indirect link, I will continue to maintain that the same link to the judgment in the context of a blog post which provides a summary of the case is just as, if not more, useful, because many laypeople - i.e. the majority of forum members - may find the formal judgment heavy-going and obscure in places.

                      You have previously suggested that, because the blog post was written by the solicitors acting for the defence, it is therefore biased; so please tell me which points of the summary you consider to be misleading and/or false, and/or why you consider the summary to be unhelpful to the layperson.

                      * Please may we assume we are both aware that this is not the full citation.

                      Comment


                        #26
                        Eh? I did not suggest that the blog was unhelpful- merely that it was neither official or unbiased.
                        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
                        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
                        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
                        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
                        4. *- Contact info: click on my name (blue-highlight link).

                        Comment


                          #27
                          sorry have been moving

                          its been a bit busy I haven't had internet at new house but update is have an appointment with solictors on weds to show them my paperwork so they can see full story and give their opinion on weight of my case.
                          I will keep checking the site with the decision on to see if anything further happens with case/appeal.

                          Comment


                            #28
                            Originally posted by rebecca.483 View Post
                            lots happened landlord admitted to letting agent not protected deposit which i knew anyway.

                            letting agents saying nothing to do with them cant sue them as landlords responsiblity yet I handed my money to them and have never spoken seen my landlord.

                            I asked what had happened to the deposit I gave them They also showed me how they bill landlord at start of tenancy and it basically showed that out of my deposit and months rent in advance etc they take their fees then give landlord change say £50 and he has to protect deposit out of his money, then get this they say "otherwise we might not get paid our fees" I say so how the ***! was he going to put £600 in a deposit protection scheme, surely they are way way in the wrong negligent is a word that springs to mind.
                            You paid your first month's rent and deposit to the LA. The LA should protect your deposit first and foremost. Despite many opportunities, they have failed to do so. As agents acting for the LL, that is their responsibility. Their excuses have nothing to do with the fact that your deposit is unprotected. They shouldn't be using it to pay theirselves.

                            Presumably your tenancy has now ended and there is no chance of retrospectivley protecting the deposit.

                            Can someone on the forum advise? Isn't there a procedure where the T can go to the Court directly? Getting legal advice is very important to clarify the issue, but how much is it going to cost in legal fees if the solicitor has to take the case to Court?

                            I wish you the best of luck in taking it further. It's a stressful time for you when you have your hands full with your youngsters. Hope it goes well.

                            Comment


                              #29
                              consumeractiongroup.co.uk

                              /forum/residential-commercial-lettings/155645-tds-eligibility-implication-breach


                              There's a ton of information on the above link re tenancy issues. Might be worth a trawl through various posts. I would be inclined to summarise your situation and post a new thread there to hopefully get some advice before you go to your solicitor on wednesday.

                              Comment


                                #30
                                thanks trill

                                I did post on there as well at the beginning of this saga but the guys on their suggested here too.
                                have read loads of posts on both sites mind bending info to take in.
                                thanks for the boost, its nice to know you are not going mad when some one else can see your point too.
                                Fingers crossed for today the guy seemed confident about legal aid? but who knows it will just be nice to pass some weight over to him if poss.

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