No deposit as used against rent - is s21 still valid?

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  • No deposit as used against rent - is s21 still valid?

    AST signed 6/1/09
    s21 served 7/1/09

    Deposit ot registred with deposit scheme.

    July '09 cheque bounced and tenant (verbaly) requested to release deposit (I agreed).

    Tennat in arrears of 2-3 months.

    Now claiming possesion on s21.

    Tenans defence: that he did not agree to release deposit for rent, he does not dispute the arrears though!

    Is the s21 still valid? as the tenants admit arrears so deposit is anyway lost or not! Is there arisk of getting fined in court?

  • #2
    If a deposit is no longer held, the earlier non-protection is irrelevant. If the s.21 Notice is inherently valid, press onwards.
    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


    • #3
      Originally posted by zwypl View Post
      AST signed 6/1/09
      s21 served 7/1/09

      Deposit not registred with deposit scheme.
      Why not?


      Tenant in arrears of 2-3 months.

      Now claiming possesion on s21.
      Why not use s.8 route?

      Tenant's defence: that he did not agree to release deposit for rent, he does not dispute the arrears though!
      You mean T is saying s.21 is not valid because deposit not protected?

      Is there arisk of getting fined in court?
      In order for the penalty to be applied, T must firstly make a claim/counterclaim for it. It wouldn't just 'happen'; you'd have the opportunity to defend the claim.

      Comment


      • #4
        Originally posted by jeffrey View Post
        If a deposit is no longer held, the earlier non-protection is irrelevant. If the s.21 Notice is inherently valid, press onwards.
        But the tenant denies he agreed to use deposit. I have no proof, however even according to tenant, he is in arrears and I used this against the rent. The lease says thatthe deposit may be used to rectify breaches in the tenancy i.e. rent.

        Do you think I have a case?

        Comment


        • #5
          Originally posted by westminster View Post
          Why not?



          Why not use s.8 route?


          You mean T is saying s.21 is not valid because deposit not protected?


          In order for the penalty to be applied, T must firstly make a claim/counterclaim for it. It wouldn't just 'happen'; you'd have the opportunity to defend the claim.

          S8 is complicated as it can get down to nitty gritty items of disrepair. I thought that the judge may at their own discretion apply for a penalty on the deposit, if you say it is only upon application I am clam, but please confirm.

          Comment


          • #6
            Originally posted by zwypl View Post
            But the tenant denies he agreed to use deposit. I have no proof, however even according to tenant, he is in arrears and I used this against the rent. The lease says thatthe deposit may be used to rectify breaches in the tenancy i.e. rent.

            Do you think I have a case?
            Maybe not, as you've neither returned nor protected the deposit and (ill-advisedly) have no evidence of T's authority.
            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


            • #7
              Originally posted by zwypl View Post
              I thought that the judge may at their own discretion apply for a penalty on the deposit, if you say it is only upon application I am clam, but please confirm.
              The penalty is not 'automatic'. As I said, the tenant must claim for it, you must be given the opportunity to defend the claim (as there are various defences), and only after reviewing the claim, the defence and the evidence would the judge be in a position to decide whether to order the penalty or not.

              Comment


              • #8
                The Act says 'must'!
                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

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