Landlord refuses to put bond in scheme. Should I fight it?

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    Landlord refuses to put bond in scheme. Should I fight it?

    I have been living at my current property for just over 3 months. When I first moved in and gave the deposit she said she would put it in a seperate bank account. I didn't pull her up on it at the time. I decided to give it a month then phone her telling her I had not recieved confirmation from any of the schemes. I did this and she said she never heard of these schemes but don't worry because the money is safe blah blah blah. I said ok and left it at that. I later found out it isn't optional. A week ago she phoned to check everything was ok and I told her about the bond scheme being necessary these days, she fobbed me off and told me it wasn't.

    I don't have a problem with her, she leaves us alone, sends repair people when something needs doing etc. She is a really great landlord apart from this one issue. From what I read it's possible to get the money back in court regardless of any damage done so I'm thinking it would be a lot of hassle but if she tries to make up any damage we can simply take her to small claims and get the money back anyway. Is this how it works? She is currently living in Spain but has a UK home 10 miles away, I don't know if that complicates matters. Advise would be great. Should I just leave it as it is or continue to ask her about it?

    #2
    While you can (in theory) just take her to court anyway, there are additional costs in doing so, and you are entitled to have the free Alternative Dispute Resolution (ADR) option available to you.

    The following link
    http://www.adviceguide.org.uk/index/...y_deposits.pdf explains the situation.

    Note that this explains that it is first necessary to write to your landlord asking them to protect the deposit and giving them sufficeint time to do so. (5 weeks seems appropriate given she lives abroad).

    If she has a UK home, you will ultimately be able to get your deposit back (assuming the landlord doesn't counter-sue for damage/unpaid rent), but you lose the (theoretical) advantage of the ADR, which is speed.

    Does the tenancy agreement set out any time limits for the deposit to be returned, and does it provide a dispute resolution process?

    If neither of these are in the agreement, in your letter requesting the protection of the deposit, you can suggest an alternative to one of the official schemes, e.g.
    . LL provides evidence that the money is deposited in a dedicated UK account.
    . LL provides a timescale to inspect property and release deposit.
    . LL provides a suitable dispute resolution service.

    Ideally, the tenancy agreement should be formally varied to include any agreement on the above. This will more clearly put the LL in breach of the agreement should you have to go to court.

    I would write once requesting the deposit be protected, and take the decision on what to do next based on her response. If she still refuses, I would probably not pursue that matter - the landlord is potentially loosing a lot more than they are gaining because they cannot begin proceedings to evict you using a Section 21 notice until your deposit is protected in one of the official schemes (so they would be foolish to agree to an alternative arrangement).

    Comment


      #3
      Suggest you point out to her that she can be fined 3xthe deposit for not sticking to the rules... and you get the money!!
      http://www.legislation.gov.uk/ukpga/2004/34/section/214

      (4)The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.
      As she is living abroad there's also the HMRC non-resident landlord deal - ask her about that ??
      http://www.hmrc.gov.uk/cnr/nr_landlords.htm

      PS You are in England/Wales??
      I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

      Comment


        #4
        Tacpot - landlords and tenants can not mutually agree to opt out of the tenancy deposit requirements, no mater how attractive the alternative may seem. This is to prevent the more 'crafty' landlords incorporating such an 'agreement' into their ASTs.

        Comment


          #5
          Another point is any S.21 Notice served will be invalid until the deposit is protected so you will have security of tenure until she does, as has already been mentioned. Also if you haven't had a S.48 Notice notification (address in England & Wales where you can serve Notices on the landlord) then the rent is not legally due so you could just stop paying the rent and she could do nothing about it until such Notice was received by you.
          The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

          Comment


            #6
            Landlords and tenants can not mutually agree to opt out of the tenancy deposit requirements, no mater how attractive the alternative may seem.
            While this is correct, the only sanction available to the OP (if the deposit is not protected correctly) is to go to court and probably destroy the Landlord/Tenant relationship in the process. The is nothing that can prevent the landlord and tenant from making other arrangements, but if either party wishes to rely on these arrangements in an dispute, especially one that comes before a court, they have to appreciate the impact of the law on their agreement (which would essentially be to nullify it). I agree an alternative arrangement is a bad idea, but if the dispute never goes to court, how does this stop the landlord and tenant agreeing an alternative approach?

            Comment


              #7
              Originally posted by tacpot View Post
              but if the dispute never goes to court, how does this stop the landlord and tenant agreeing an alternative approach?
              A landlord who gets involved in such an arrangement is, frankly, a fool. No piece of paper saying 'I agree the landlord will not use a TDS' is going to save the landlord from a s214 claim if he tenant decides to be 'clever'.

              Comment


                #8
                I do agree.

                Comment

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