Tenant never paid deposit so should I have protected my own money?!

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    Tenant never paid deposit so should I have protected my own money?!

    Hi!

    My tenant started on an AST in June 2009, the fixed term was for 2 years and has since been on a periodic. She didn't pay the deposit before moving in, constantly promising it would come, but it never has.

    She has slipped into arrears on several occasions but just about managed to keep it within reach, largely with the help of the council. They have paid the majority of the rent (& since before the fixed term ended). Initially the council were not involved.

    I now wish to move back into the property and intend to serve her with a section 21 and so have read about the need to have protected the deposit. As she has never paid it, where do I stand with this? Should I pay the £595 in from my own money, to risk her being able to dispute she has a claim? (She will be in arrears by a small amount but there is damage to the property that I will need to pay for as well).

    I'm also unsure of the date I can use on the section 21 as she started payments monthly and in advance, but that slipped until the cuncil took over - being 4 weekly and in arrears now. Any extra she managed to pay to make up the shortfall between the rent and what the council paid just came as and when she had it to give to me!

    Please help! Thank you!

    #2
    Your tenant has not paid a deposit, therefore there is no deposit to protect. You haven't given her a receipt for this non-existant deposit have you?

    Originally posted by Section 215(1) 2004 Housing Act
    If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when(a)the deposit is not being held in accordance with an authorised scheme, or
    (b)the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit
    When did the last tenancy agreement begin?
    You say it was for 2 years, was an expiry date specified?
    Does the tenancy agreement specify rent due monthly?

    Comment


      #3
      Thank you for your prompt response.

      The ASR began 29 June 2009 and ended 28 June 2011. Both dates are on the Tenancy Agreement, along with the amount of monthly rent due. It does also state 'Rental Payment Period' is Monthly.

      I assume our agreement automatically moved into a periodic AST as of 29 June 2011. The council were paying her housing benefit to me, (it started being to the tenant, but she bacame too far in arrears and so I began receieving it directly in May 2010), every 4 weeks before this fixed term ended, with the T initially paying the shortfall when she had some money but that lapsed a while ago and so I only receive the money from the council now.

      I've tried speaking to the council but they refuse to help. I guess that's because they want my T to remain in my house as long as possible so they don't have to rehouse her. I know my T is keen to leave as she is having trouble with the father of her children, (he has never been a tenant in the property but they were on amicable terms when she moved in).

      I realise I'm likely to be in for a long process resulting in eviction, so I want to do what I can to ensure I serve the correct notice in the first place.

      Thank you.

      Comment


        #4
        You need to serve a section 21(4)(a) notice with an expiry date of "after 28th March 2012" (you have just missed Februarys opportunity). This needs to be served no later than 27th January with proof of service.

        If tenant has more than 2 months rent unpaid then it may be quicker (slightly) to serve a section 8 notice under grounds 8, 10 & 11. This can be slightly cheaper if done online and can result in an order for the missing rent too (would the tenant have assets to pay?) but will definately necessitate a court hearing (s21 often doesn't) and if the tenant gets the upaid rent to under 2 months then possession is not guaranteed.

        As a rule, tenants evicted by s8 do not get ongoing support from the council - ie an easy council house. The council has no obligation to house those who are not homeless. Your tenant has no obligation to leave until you get a court order.

        Was a deposit paid? Is it protected in a government approved scheme?

        Brief details here, any further questions, post back:

        section 8: http://tenancyanswers.ucoz.com/index..._contract/0-36
        Section 21: http://tenancyanswers.ucoz.com/index..._contract/0-37

        Comment


          #5
          Thank you. I feared it would be the monthly date I needed to use. It's great to have that cleared up though.

          My tenant does not owe more than 2 month's rent so I need to stick to section 21, but thanks for the idea.

          She did not pay a deposit but our agreement makes reference to the terms including her doing so. Would it be safer to pay the full deposit amount into the dps so that I cannot be seen to have served the notice incorrectly? Is it OK to do that now? I realise I risk my T having a claim on the deposit but I have records of what has been paid so its clear she would owe more than the deposit. There is also a number of repairs required due to her neglect of the property. If I arrange this protection now, what do I need to do before serving the section 21?

          So if she moves out by the date I put on the s21, the council have no obligation to help her, but if she waits for me to get a court order and subsequently evict her, they will have to help?

          Comment


            #6
            Can you tell us the exact wording on the tenancy agreement with regard to the deposit?

            With regard to the council...

            If she leaves when she doesn't have to, they will probably consider her voluntarily homeless - her fault.

            If you section 21 her then they may have to help her depending on 101 other circumstances.

            Comment


              #7
              The amount of deposit is simply stated after 'Deposit:' then under the 'Terms' section, 1 term is 'The tenant has paid to the Landlord the amont of the deposit and will continue to pay the amount of Rent specified above from and on the 29th of every month of the agreed Term. The deposit amount to be held by the previous agent as Stakeholder as secrurity for performance of the Tenant's obligations. The Agent is a member of the Tenancy Deposit Scheme as run by the Dispute Service Limited. Please refer to clause 26 of this agreement.' (This refers to the conditins of the DPS.

              Comment


                #8
                If you signed this agreement I'm afraid that you acknowledged receiving the deposit. It might be difficult to claim otherwise now.

                Comment


                  #9
                  Originally posted by Lima View Post
                  The amount of deposit is simply stated after 'Deposit:' then under the 'Terms' section, 1 term is 'The tenant has paid to the Landlord the amont of the deposit and will continue to pay the amount of Rent specified above from and on the 29th of every month of the agreed Term. The deposit amount to be held by the previous agent as Stakeholder as secrurity for performance of the Tenant's obligations. The Agent is a member of the Tenancy Deposit Scheme as run by the Dispute Service Limited. Please refer to clause 26 of this agreement.' (This refers to the conditins of the DPS.
                  That sounds like a receipt to me. You need to protect the deposit and face the reality that (other than making a legitimate claim on the deposit for damage/rent) you are not going to see that money again.

                  You need to protect the deposit before you serve the section 21 notice AND give the tenant the schemes 'prescribed information'. Thats a legal requirement and you may need to prove you have done so, so I'd send it by mail (proof of posting) or get a witness to it being provided.

                  Edit: Slight problem... Your tenancy agreement states the deposit will be protected by TDS. TDS do not deal with private landlords (where did the agreement come from?) and they don't accept late protection requests.

                  Comment


                    #10
                    I would not protect the deposit if it wasn't paid.
                    Allow tenants to protect their own deposits. I want free money when they do it wrong

                    Comment


                      #11
                      Originally posted by thesaint View Post
                      I would not protect the deposit if it wasn't paid.
                      And how would the landlord prove it wasn't paid when the tenant has a document signed by the landlord stating it was paid.

                      Comment


                        #12
                        This is a tricky one.

                        If the OP protects the deposit is he not making a bad situation worse?

                        Including the receipt for a deposit in the tenancy agreement and then not collecting it was clearly a bad idea, but not necessarily fatal. The OP starts off at a disadvantage, but what he needs to do is to ask what he would do if there were no receipt but the tenant nevertheless alleged that a deposit had been paid and proceed accordingly.

                        Comment


                          #13
                          I'm registered with the DPS so I would use them. I think I have ligitimate claims to the money seen as she would be more than that amount in arrears as well as having caused damage to the property. Sounds like the safer option to protect it now. Do you think the referal to the wrong protectors would stop the s21 being valid? (I got the wording from a previous agreement which was done through an agency).

                          Comment


                            #14
                            Originally posted by Lawcruncher View Post
                            This is a tricky one.

                            If the OP protects the deposit is he not making a bad situation worse?

                            Including the receipt for a deposit in the tenancy agreement and then not collecting it was clearly a bad idea, but not necessarily fatal. The OP starts off at a disadvantage, but what he needs to do is to ask what he would do if there were no receipt but the tenant nevertheless alleged that a deposit had been paid and proceed accordingly.
                            I'm not sure LC, I would see the receipted TA as more than sufficient evidence in the county court.

                            The onus of proof would be on the tenant, and with a receipt, he has it.

                            No protection for a tenancy deposit (that would be assumed to exist imho) would knock out the possession claim, putting back possession by a number of months. Even if OP could prove the deposit didn't exist (how?) it would delay the possession because there would be a need for a hearing.

                            There is also the (unlikely) possibility of a section 214 claim to throw into the mix.

                            Comment


                              #15
                              If I call some of the money paid as rent 'the deposit' and protect that, my tenant would be more than 2 months in arrears. Assuming no action is taken because the deposit wasn't protected initially, (I'm hopeful here as my tenant wants to move out but it's the council who are forcing things to go the distance), would the s21 be valid if I serve it having protected it now and given the T proof? Would the alternatie cause of action be better given the amount owing has become >2 months?

                              Comment

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