Should I protect deposit and if so in whose name

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    Should I protect deposit and if so in whose name

    We originally let property under an AST in June 2006, took a deposit which of course didn't need protecting. This was all done by a letting agent. In April 2007 tenant asked if her daughter could move in and she became party to the agreement simply by signing the original one as this is what the letting agents advised. We did not take a deposit from her. Last year her mother left the property to live with her partner, we were advised by agents we could simply cross out our original tenants name and this was initialled by her. Her mother did not want her original deposit back as she stated it would be hers when her daughter left. Tenant is behind with rent and we have served S21. They have been to see shelter who have informed them that we are illegally holding the deposit and now we are very worried that our S21 will be invalid and that they will claim 3x dep. If we decide to protect the original deposit at this stage whose name should it be in as the current tenant is not the person who paid it? We bought a couple of other properties lst year and used DPS for those so we are trying to do the right thing - sorry for the essay!

    #2
    I think the real question here is 'is it a new agreement?'

    I don't think it is. The daughter just signing an old agreement does not seem to be one. Certainly you gave permission for her to move in but you did not take a deposit from her and the original deposit was received in 2006 when there was no need to protect it. The original deposit still belongs to the mother, and as far as I can see, the mother is still the tenant. Protect it in her name if you have to.

    I think you were badly advised by your agent.

    If you are worried you can still protect the deposit with DPS.

    This is assuming your property is in E&W and the rent is below 25k pa.
    I offer no guarantee that anything I say is correct. wysiwyg

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      #3
      Thanks for a prompt response. I feel the same but I think we will stick the deposit into a protection scheme as there are a few months arrears already and I am not hopeful of recovering so this may protect it a bit for us.

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        #4
        I totally agree with jta that the agent's advice was terrible, but I'm not sure that the original tenancy with the mother is still ongoing. I think there's another way to interpret what happened.

        There was an AST which began in June 2006 and became periodic in June 2007, regardless of the validity of the amendment making daughter a joint tenant in April 2007.

        In order to end a periodic tenancy, either the sole tenant or one of the joint tenants may give notice to end the tenancy. I think that when the mother left this could be interpreted as equivalent to her giving notice - especially given that the mother initialed the deletion of her name on the contract. And if she did effectively 'give notice' by her actions, whether she was a sole or joint tenant, this would have ended that tenancy.

        After that, a new, oral statutory periodic AST was created with the daughter, and the deposit held as security against this new tenancy. In which case, dillydolly should protect the deposit with the DPS and provide the daughter with the prescribed information.

        A complete mess in terms of trying to figure out a date for a s.21(4)(a) notice to expire. But, as dillydolly say T owes a "few months arrears" a s.8 notice might be the best way out of this mess.

        @dillydolly, you were asking whose name you should use for the DPS, but what I'm wondering is whose name you put as tenant on the s.21 you served? - because DPS/s.21 would have to match...

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          #5
          Thanks Westminster, I see what you're saying...the S21 was in her daughter's name...but I'm sure the mother would object strongly if we said the money was her daughters and protected it in her name....what then, I suppose we just say that is between them....What about the S21 though because I thought if a deposit had to be protected it had to be done before a S21 was served. Tenant is actually now almost 4mths late with rent and we have given her final notice before court proceedings which we are going to issue this week. She has also not contacted us at all since receiving notice so we don't know whether she will leave by notice date. Should we try to contact her or do you think it's best to keep our distance at this stage. I think we should probably issue a S8 asap as you mentioned.

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            #6
            Originally posted by dillydolly View Post
            Thanks Westminster, I see what you're saying...the S21 was in her daughter's name...but I'm sure the mother would object strongly if we said the money was her daughters and protected it in her name....what then, I suppose we just say that is between them....What about the S21 though because I thought if a deposit had to be protected it had to be done before a S21 was served.
            Yes, correct, if there was a new tenancy created after 6th April 2007. The trouble is, there are several possible scenarios here:

            1) No new tenancy, with mother as tenant as contract amendments were invalid (and daughter as her permitted licencee perhaps)
            2) No new tenancy, with daughter as tenant.
            3) New tenancy, with daughter as tenant.

            I think we should probably issue a S8 asap as you mentioned.
            You still have the problem of who the legal tenant is. Once you know that, then you'll know how to evict.

            We really need one of the forum's legal experts to advise

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              #7
              it can still be placed in the scheme even if it late

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                #8
                Are you likely to find a new tenant quickly or is it possible the old one would stay and become more reliable for a reduced rent?

                Did you sign anything releasing the mother from her obligations?

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                  #9
                  We would be able to get another tenant without any problems. As for our tenant, the rent is already quite low, we haven't increased it at all since the original tenancy in June 06.
                  This tenant has gone down hill over the last year and I don't think she will ever become a good one.
                  The crossing off of mother's name from the agreement was witnessed by my sister who simply initialled it.
                  Still no contact or money from tenant, I want to go and see her to try and discuss but do not want to be accused of harrassment....
                  I'm going on hols for a couple of wks now and I'm just going to forget about it before it drives me completely mad!
                  Is there a Lawyer out there who could advise about how a judge is likely to view this agreement?

                  Comment

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