Deposit not protected with AST

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    Deposit not protected with AST

    I let out a property to a couple in September 2007 on a 6 month AST. I protected this deposit with Mydeposits. Before expiry of that AST we entered into another AST but for which I did not protect the deposit(completely unknowingly and the tenant have never complained about it). Between September 2007 and now we have done 5 AST agreements but only the first one was protected with MyDeposits.

    The last AST expired on March 28, 2010 and since then the tenants are living on an SPT. On April 28, 2010 I served them a section 21b to vaccate the property on July 25, 2010 and the tenant has confirmed to me that they will be moving out on June 30(they have confirmed by email - is that valid?) as they have already found a new property. That is fine by me.

    The problem is that they have not paid the rent for the last month(due 1st of each month) and I am concerned that I would have to foot too much bill cleaning up the mess etc. However, since I am on the wrong side of the law (presumably?) I wonder if need to protect the deposit NOW even though the tenant has already deducted it from the last month's rent? Will I be able to take them to court for any damages to the property?


    The specific clause related to the tenancy deposit in our written AST agreement goes something like this ...
    *************
    The deposit of £ 800 (Eight Hundred British Pounds) paid by the tenant for the previous term of tenancy contract will be retained by the landlord. Details of the tenancy insurance have already been provided to the tenant.
    *************

    Thanks.

    #2
    What has happened with the first deposit paid in 2007? Is this still held by MyDeposits?
    PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

    Comment


      #3
      When i first protected the deposit in 2007 I kept the 800 quid and paid (if i remember right) 50 pounds to Mydeposits. When the first AST expired apparently I should have bought another protection? Which I unfortunately did not. And nor for any of the later ASTs (I renewed tenancies every 6 months with a new AST) until the last one which expired on March 28 this year and now the property is in SPT. Does that help?

      Comment


        #4
        A renewal is a new letting. Its deposit needs reprotecting (even though the £££ paid was never handed-back from L to T or newly paid from T to L).
        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


          #5
          Originally posted by kkarank View Post
          When i first protected the deposit in 2007 I kept the 800 quid and paid (if i remember right) 50 pounds to Mydeposits. When the first AST expired apparently I should have bought another protection? Which I unfortunately did not. And nor for any of the later ASTs (I renewed tenancies every 6 months with a new AST) until the last one which expired on March 28 this year and now the property is in SPT. Does that help?
          You can protect it for free at http://www.depositprotection.com Make sure you provide your tenant with the 'prescribed information'.

          At the time of writing, this will protect you from any legal claims re late protection.

          Any damages can be sued for, only you can decide if you have adaquate proof and if the tenant has adequate assets to make it worthwhile.

          Comment


            #6
            But will the late protection count if the tenant has already adjusted the last month's rent against the deposit?

            Also, I tried to call the DPS but I was told that I must seek legal advise in this matter as the tenancy has now become periodic and almost 7 months late.

            Comment


              #7
              Originally posted by kkarank View Post
              But will the late protection count if the tenant has already adjusted the last month's rent against the deposit?
              In law the deposit is still the tenants until you prove it is legally due to you. If you choose not to protect, the tenant will be able to claim the deposit back through the court and has the option to sue for the statutory penalty of 3x the deposit value. You could, of course, counterclaim for the missing rent but you would still be liable for the penalty. As this wouldn't be 'small claims', you could also end up being liable for your tenants legal fees (how much per hour is a solicitor?)

              I am not saying any of this WILL happen, but it is very possible.

              Interestingly, the lack of deposit protection renders your s21 invalid.
              Also, I tried to call the DPS but I was told that I must seek legal advise in this matter as the tenancy has now become periodic and almost 7 months late.
              DPS won't give legal advice.

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