2006 AST, renewed but deposit not protected, s.21 valid?

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    #16
    Originally posted by bsx043 View Post
    I have two more questions:

    1. Before putting the deposit (equivalent to one month’s rent) on the TDS scheme, I need advice on how best to recover it, and what the procedure is. Tenant is owing over 4 month’s unpaid rent, which he is unlikely to pay. Furthermore, he has breached tenancy terms by displacing LL furniture, sub-letting rooms, redecorating them, keeping a pet in the house.
    You mean the DPS. When the tenancy ends, you will need to inform them that you wish to make deductions - the tenant can dispute it or not. The deposit schemes have an adjudication service; you can also choose to opt out and claim against the tenant in the county court (which you'll have to if you claim more than the deposit amount, because adjudication cannot award more than the deposit amount). See
    http://www.hmcourts-service.gov.uk/i...aims/index.htm
    https://www.depositprotection.com/Pu...Documents.aspx

    You cannot make deductions for breaching provisions per se; you must have suffered an actual financial loss as a result.


    2. On the S8 route to repossession, my case rests on grounds 8, 10, 11, and 12, although I could only state 8, 10, 11 to deter any counter-claim. However, confirmation can be obtained from neighbours about 12. Even on the mandatory ground 8 I have a strong case, as I don’t think T is likely to pay. Do I need to add 12 in case the tenant tries to be clever, putting in a counter-claim for repairs and all that? I am also thinking about the return of my deposit in full.
    Judging by what I've read on the forum, it seems most LLs use just 8, 10, 11. Ground 8 is mandatory so if T doesn't pay the judge must grant your application. Ground 12 would involve a lot of extra work in terms of providing evidence and arguing your case, and is anyway unlikely to succeed as a ground as it's not mandatory. Whether you use G.12 or not, it won't in itself defeat a claim for disrepair; the T could be running a brothel and cannabis farm and you'd still be liable for repairing the boiler assuming T had reported it to you.

    Even though s21 is a safer option, I think now that making a case through s8 might be strong.
    As Tom999 previously advised, use s.8 route first (because the notice period is much shorter), then s.21 route in the event that doesn't succeed.

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      #17
      Originally posted by bsx043 View Post
      1. Before putting the deposit (equivalent to one month’s rent) on the TDS scheme, I need advice on how best to recover it, and what the procedure is. Tenant is owing over 4 month’s unpaid rent, which he is unlikely to pay. Furthermore, he has breached tenancy terms by displacing LL furniture, sub-letting rooms, redecorating them, keeping a pet in the house. Maybe, the house could be vandalized. All this would involve substantial cost to put right. In addition, there is cost of repossession, etc. AST terms are standard based on Oyez stationary.
      If you want to make deductions from deposit, and want to use the scheme arbitration service, you would need to make sure you have a checkin inventory including photographs, and one on checkout, to show that the damage you are claiming for was done by T. Without any proof, it is unlikely you will be awarded damages.

      It is generally recommended that LL not use the scheme arbitration, but use the court instead....

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        #18
        A check-in inventory was taken by the agent but not the photographs.

        I have posted another thread on s8 and s21 issues for comments.
        http://www.landlordzone.co.uk/forums...ad.php?t=26732

        While researching on this I now understand the s8-s21 strategy of evicting a problem tenant and wish I had been more alert and knowledgeable about these issues, rather than rely on the agent's view at the time.

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          #19
          Originally posted by westminster View Post
          You must use the DPS to ensure you are protected against a claim for non-compliance.

          http://www.depositprotection.com/

          Do not use one of the two other schemes (i.e. TDS & mydeposits).

          Also, are you clear on the requirements for a s.21 notice for a periodic tenancy? See this link.
          Hi westminster,

          do i need to keep a copy of the signed prescribed information or
          do i just need to give the tenant a copy?

          Also, why do u recommend using the dps in this instance, and not TDS & mydeposits?

          Comment


            #20
            Originally posted by pandoralcy View Post
            Hi westminster,

            do i need to keep a copy of the signed prescribed information or
            do i just need to give the tenant a copy?
            It is not essential for T to sign the prescribed information. It is enough to give to T, but you need proof you did, so keep a copy and get proof of posting in the form of a free certificate of posting.

            Also, why do u recommend using the dps in this instance, and not TDS & mydeposits?
            Because there was a recent High Court case (see link below), therefore binding on lower courts, which ruled that if the deposit is protected late with the DPS then the 3x penalty does not apply. It's specific to the DPS because the case concerned the DPS's "initial requirements" - the other schemes have different "initial requirements" and there hasn't been a High Court ruling on them as yet.
            http://blog.painsmith.co.uk/2010/02/...cision-on-tdp/

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