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

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  • westminster
    replied
    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/

    Leave a comment:


  • pandoralcy
    replied
    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?

    Leave a comment:


  • bsx043
    replied
    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.

    Leave a comment:


  • havensRus
    replied
    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....

    Leave a comment:


  • westminster
    replied
    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.

    Leave a comment:


  • bsx043
    replied
    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. 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.

    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.

    Even though s21 is a safer option, I think now that making a case through s8 might be strong. However, I am more thinking about what to state on s8 notice.

    Leave a comment:


  • westminster
    replied
    Originally posted by bsx043 View Post
    About the s21(4)(a) Notice: According to the expired one-year fixed-term AST, rent payable in equal monthly payments on the 15th of each month. Therefore the date of expiry on the notice should be after 14th May 2010, and dated on (or before) 15th March 2010 ?
    Periods start on the day after the fixed term expired (which may or may not coincide with the rent-due-day). So if the last day of the fixed term was the 14th of the month, then the periods would run 15th - 14th of the month and yes, the notice should seek possession after 14th May. Allow 2-3 days for postal delivery, i.e. post by the 12th to be sure notice is served by the 15th. Keep a copy and get a free certificate of posting. (Unless perhaps the contract specifies that notices must be served using a signed for service - does it? - but signed for services can be refused or returned undelivered).

    Next, landlord's address on the AST is c/o Agent's address. Should I have the same address or change it to my home address.
    Don't know.

    Also, is there a link on website where I can freely download s21 and s8 notices, perhaps in word/writable format rather than pdf ?
    Landlordzone has them.
    http://www.landlordzone.co.uk/agreements.htm

    Also, there are various landlord associations/websites you can join for a small annual fee and get such things and advice on them.

    e.g.
    http://www.landlordlaw.co.uk/pagedet...396&page=non#1
    http://www.landlords.org.uk/archive/...factsheets.htm

    Leave a comment:


  • bsx043
    replied
    Thanks about the DPS.

    About the s21(4)(a) Notice: According to the expired one-year fixed-term AST, rent payable in equal monthly payments on the 15th of each month. Therefore the date of expiry on the notice should be after 14th May 2010, and dated on (or before) 15th March 2010 ?

    Next, landlord's address on the AST is c/o Agent's address. Should I have the same address or change it to my home address.

    Also, is there a link on website where I can freely download s21 and s8 notices, perhaps in word/writable format rather than pdf ?

    Leave a comment:


  • havensRus
    replied
    Originally posted by bsx043 View Post
    Maybe I should seek legal advice, as Tom999 suggests, on the technicality of section 6 in Form5Nb.
    You should delete S6 of N5b only if there has been no other ASTs signed since first one was issued. As long as there's another AST signed by same person(s), you must leave that section in.

    Originally posted by bsx043 View Post
    The next thing, at least for now, is to protect T deposit, issue s8 and new s21 with TDS confirmation, etc.
    That is the correct/best option.

    Unfortunately, the law did not clarify the situation for tenancy renewal where deposits were taken prior to Apr07 and new ASTs signed after that.

    Whilst the statute says deposits received after Apr07, the concensus is that it applies to renewals, as technically, a deposit has been taken for the contract, even though the no "new" money changed hands.

    Leave a comment:


  • westminster
    replied
    Originally posted by bsx043 View Post
    On the other hand, Tom999 confirms your option 3 which, after reflecting overnight, I may decide to follow. I am not rushed for possession, although I thought the quicker the better to cut losses short. The next thing, at least for now, is to protect T deposit, issue s8 and new s21 with TDS confirmation, etc.
    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.

    Leave a comment:


  • bsx043
    replied
    Thanks for all the information. Maybe I should seek legal advice, as Tom999 suggests, on the technicality of section 6 in Form5Nb. Are there any cases here or elsewhere where such actions on the s21 route have succeeded or failed?


    On the other hand, Tom999 confirms your option 3 which, after reflecting overnight, I may decide to follow. I am not rushed for possession, although I thought the quicker the better to cut losses short. The next thing, at least for now, is to protect T deposit, issue s8 and new s21 with TDS confirmation, etc.

    Leave a comment:


  • westminster
    replied
    Originally posted by bsx043 View Post
    Demand that agent protects T deposit which he holds and serve s21 again.
    You don't necessarily need to rely on the agent for this. You could pay the deposit amount into the DPS yourself, send the T the prescribed information (NB keep copy and get proof of posting in the form of a free certificate of posting - essential), and get the money back from the agent afterwards.

    Let him Submit Form N5b and documents on Monday and expect it to fail, then sue him for litigation later.
    I would go with tom999's advice on this.

    Leave a comment:


  • bsx043
    replied
    Thanks to Westminster for posting this thread. The situation I am facing at the moment is heads I lose, tails I lose. Maybe win later.

    Here’s my predicament:

    EITHER

    Demand that agent protects T deposit which he holds and serve s21 again.
    Meanwhile I serve the S8 notice, and proceed on that basis

    OR

    Let him Submit Form N5b and documents on Monday and expect it to fail, then sue him for litigation later. I am supposed to be the dump one though.


    Do I have a better choice other than first above? I am not a lawyer but an academic who understands how to respect the law better than scrupulous businesspeople. Thanks for enlightening me on this issue anyway.

    Leave a comment:


  • irishgem1
    replied
    Westminster, thank you!

    Leave a comment:


  • westminster
    replied
    Originally posted by irishgem1 View Post
    Hi Guys! Have, as always, been reading your comments with interest. On the DPS website, under legislation, it states that deposits taken before 6th April 2007 do not have to be protected by a government scheme, however, as an existing tenancy is renewed and the Landlord agrees a new fixed-term tenancy,the initial deposit taken must then be lodged with a tenancy deposit protection scheme. Does that not imply that it is the law?
    Many thanks
    No, is the short answer. The DPS doesn't dictate the law. What they say on

    https://www.depositprotection.com/pu...gislation.aspx

    is their interpretation. And it's good advice to landlords given the uncertainty - best to err on the side of caution.

    Read the actual statute, i.e. the law, and you'll see it is open to interpretation.
    http://www.opsi.gov.uk/ACTS/acts2004..._en_19#pt6-ch4

    Also, here's a case where two different judges took two different views.
    http://nearlylegal.co.uk/blog/2010/0...tenancy-again/

    Leave a comment:

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