deposit protection

[Lyndy Wesley]

Hi everybody,

This is my first time on landlordzone. I became a landlord in October 2009 and as a novice, it has been a very steep learning curve, resulting in attending court last week to defend my lack of knowledge and not protecting the deposit. As soon as I became aware of this I protected the deposit. The county court hearing was stayed waiting on the results of the two high court appeals on 7th May 2010. Does anyone know the percentage of sucess in tenants claiming three times the deposit and also the landlords succeeding in their defence?

Thank you in advance

L

[Snorkerz]

I pressume you protected the deposit with DPS? As things stand right now, you should be fine as the offence is 'non protection' not 'late protection'. This was clarified in Draycott v Hannells Lettings Ltd, and the following quote is from the 'Painsmith Blog'.

Therefore as things currently stand agents are liable for a failure to register the deposit, late registration does not automatically attract the penalties set out in section 214, and the DPS scheme has no initial requirement that the deposit be registered with it within 14 days of being received

As you rightly say, Universal Estates v Tiensia and Honeysuckle Properties v Fletcher could change this situation - so fingers Xed!

[westminster]

Does anyone know the percentage of sucess in tenants claiming three times the deposit and also the landlords succeeding in their defence?

As snorkerz says, assuming you used the DPS (http://www.depositprotection.com/) *AND* provided T with the prescribed information (and kept a copy/proof of posting), then there's a fair chance you won't get penalized.

Percentages don't come into it. It all depends on whether or not the judgments in the cases heard on 7th May overturn Draycott v Hannells.

Keep an eye on the PainSmith blog and this forum for news of the result.

[Lyndy Wesley]

deposit (protection) x 3 claim

Thank you snorkerz and westminster for your expert advice on sites and quote for further information. It has been very helpful and much appreciated

I have 'late protected' the deposit with DPS (on 30th April the day after I received the court claim informing me of the hearing date of 7/7/10) and informed the tenant (6th May) keeping a copy of my correspondence, which I understand was the right thing to do and reassuring for me. I understand the outcome will now depend on the results of these two high court cases, any idea how long these things take?

[thesaint]

Did you not receive a "Letter Before Action" informing you that you were being taken to court "Unless x,y and z happens" before you received the court date?

[Lyndy Wesley]

No. I received a letter from her solicitor in December discussing the reason why the tenant had decided to drop the monthly rent by £100 and informing me the tenant would leave on 10th April 2010 at the end of the 6 month term, no mention of the protection of the deposit until the court claim papers came through on 29th April 2010. Tenant claims unable to find alternative accomodation and now renting on periodic terms. 6th May informed the tenant the deposit protected, that same day she requested return of the deposit despite having no date to leave. 4th June issued tenant with section 21 notice to leave the property by 4th August 2010. Tenant has accumulated arrears of £1,100, another issue to address ...

[Snorkerz]

Normally, protection of a deposit after a claim has begun would result in you being liable for the tenants costs up until protection date. However, as you were not issued with a letter before action. Had you had an LBA, you would (of course) have protected the deposit and legal action would not have been necessary. By not sending an LBA the tenant seems to be in breech of the civil proceedure rules:

(2) Dealing with a case justly includes, so far as is practicable –
(b) saving expense;
(e) allotting to it an appropriate share of the court’s resources

[westminster]

No. I received a letter from her solicitor in December discussing the reason why the tenant had decided to drop the monthly rent by £100 and informing me the tenant would leave on 10th April 2010 at the end of the 6 month term

... 4th June issued tenant with section 21 notice to leave the property by 4th August 2010

Are you sure that you served the s.21 correctly, as the above dates don't seem to add up for notice in a periodic AST.

1. What date did the fixed term commence (dd/mm/yy)?
2. What date was the s.21 served (not date of posting)?
   
3. Was it a s.21(1)(b) or a s.21(4)(a)?
4. Did it say you require possession "after [date]"?
5. Did you keep a copy and obtain proof of posting/witness to hand-delivery?

[Lyndy Wesley]

Fixed term commenced 4/10/2010, contract signed 27/9/10
Date notice served by hand, post and recorded delivery 4/6/2010
Periodic Assured Shorthold Tenancy - Housing Act 1988 s21(4)a
Date of expiry of notice is 7/8/10

[westminster]

Fixed term commenced 4/10/2010, contract signed 27/9/10
Date notice served by hand, post and recorded delivery 4/6/2010
Periodic Assured Shorthold Tenancy - Housing Act 1988 s21(4)a
Date of expiry of notice is 7/8/10

Assume you mean term commenced 4th October 2009. So the last day of the fixed term was 3rd April 2010, and the statutory periodic tenancy began on 4th April 2010, with rental periods running 4th - 3rd of the month.

In a periodic tenancy, you must give T at least two months' and the notice must also expire at the end of a rental period; in this case, the 3rd of the month.

The expiry date of your notice - 7th August 2010 - is completely wrong, so the notice is invalid.

You need to serve another s.21(4)(a) notice. If you serve it anytime between today and 3rd August, the expiry date should be 'after 3rd October 2010'. If posting, you need to allow a couple of days before notice is deemed served, so don't leave it too close to the deadline.

[westminster]

P.S. when posting a s.21, don't use recorded delivery, as T can refuse to accept receipt. Instead, post two identical copies of the notice, from two separate post offices, and get two *free* certificates of posting. This is sufficient proof of delivery and does not require a signature on receipt.

If you deliver by hand, you must take a witness with you.

[landlordquery]

As a tenant, I've found the protection schemes very unsatisfactory. In one case, I got the result I wanted even though I didn't have a strong case. In another case, DPS lost all the documentation and then gave the deposit to the landlord in error. They wouldn't even consider a complaint, despite admitting the documents were lost by them.

[Lyndy Wesley]

The Contract states that she was due to move in on 4th October 2009, but infact when I checked my account the monies had not been paid into my account on the eve of the 3rd Oct. Therfore contacted the tenant to delay moving in until the money was paid into my account which was the 7th October 2009.

Does this mean that the date on Section 21 is still wrong?

Thank you Wesminster for your advice, it is so much appreciated as I am not aware of these finer details

[westminster]

The Contract states that she was due to move in on 4th October 2009, but infact when I checked my account the monies had not been paid into my account on the eve of the 3rd Oct. Therfore contacted the tenant to delay moving in until the money was paid into my account which was the 7th October 2009.

Does this mean that the date on Section 21 is still wrong?

Thank you Wesminster for your advice, it is so much appreciated as I am not aware of these finer details

The s.21 is still wrong.

All that matters is the dates on the signed contract. If it says the fixed term began on 4th October 2009, that's when it began, regardless of when T actually moved in - and you were not entitled to delay or prevent the T moving in regardless of uncleared funds. This is why you should ensure that you are in receipt of cleared funds before signing the contract with a tenant.

Lack of awareness of the finer details can potentially get you into a lot of trouble, so I strongly recommend you research the legalities of being a landlord - reading threads on this forum is a very good way to learn.

[DPS]

Please can you send the details of your case to me at Kevin.Firth@depositprotection.com and I will look into this for you. If, as you say we have admitted losing the documentation and paying out in error we should make good the loss. Thanks