CAN'T return deposit - how to evict?

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    CAN'T return deposit - how to evict?

    The Painsmith blog has just posted this
    http://blog.painsmith.co.uk/2012/07/...what-can-i-do/

    It is believed that tenants will be advised not to accept the return of the deposit so in this way preventing a landlord from being able to serve a section 21 Notice.
    Now it is preceeded by the words 'it is believed', so it hasn't happened yet and possibly never will, but it would be worth discussing how a landlord would deal with this situation.

    A tenant on a section 8, ground 8, can not be prevented from paying rent to the landlord to get the debt under 2 months, and if they were, could use it as a defence in court.

    If the landlord holds a deposit that should have been protected, his application would most likely to dismissed by the court even without the tenants defence. The current statute provides no 'get out' and, of course, there is no case-law to support the landlords position.

    So - legal eagles - can we devise a 'recommended' course of action for this scenario so that should the question be asked, the advice given is cohesive?

    #2
    How about paying the money directly into their bank account and quote in reference - returned deposit?

    I suppose this might work - if they have a bank account?

    Comment


      #3
      Ok, lets say that the tenant plays this card.

      You try to give deposit back but its refused, you proceed with the court action anyway and show the judge you tried to give it back, if the judge doesn't allow the s21 as it is invalid then you give the tenant the money there and then in cash in front of the judge, you can now issue a new s21 notice. If the tenant gives you the money back you now have 30 days to protect as you received the deposit on the date of the court action?

      Comment


        #4
        Originally posted by worzelgummage View Post
        Ok, lets say that the tenant plays this card.

        You try to give deposit back but its refused, you proceed with the court action anyway and show the judge you tried to give it back, if the judge doesn't allow the s21 as it is invalid then you give the tenant the money there and then in cash in front of the judge, you can now issue a new s21 notice. If the tenant gives you the money back you now have 30 days to protect as you received the deposit on the date of the court action?
        1) no hearing usually for s21, so no judge to show.
        2) why should landlord have to issue again and wait 2-3 months before re-commencing proceedings - that could be a 5 month delay in total.

        Just being pedantic - nothing personal

        Comment


          #5
          If you don't have tenant's bank details (I often don't..)

          (I'm absolutely no legal eagle but...) what about posting (with proof-of-postage) a cheque (take copy & copy of covering letter) to him?? One has "returned deposit": Tenant has not cashed it but...

          No doubt there will be a test case...
          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


            #6
            Artful, I think it's a bit of scaremongering by Painsmith, but I usually hold them in high regard so thought it worth a discussion.

            There is no-where on the n5b for an explanation if T refuses their deposit, maybe there is a specific form one could add a "dear Mr Judge . . ." explanation.

            Comment


              #7
              It is believed that tenants will be advised not to accept the return of the deposit so in this way preventing a landlord from being able to serve a section 21 Notice.
              Believed by whom? Advised by whom? How will the tenant reject a refund of his money if the money is delivered in cash or paid into his account? Send it back with a note saying he's paying a deposit? - that'd just be silly game playing, and I highly doubt the court would indulge it.

              If a shop customer complains that he wants a refund, and the shop refunds the money, the customer can't just give it back and then sue the shop for failing to refund.





              Comment


                #8
                If a LL tries to repay a deposit in full by whatever transparent means and the T refuses it I cannot think that legally this will count against the LL.

                If he cannot pay into T's bank account, or hand over the cash with an independent witness present then a cheque (handed over with witness) is the next best thing but either way he should then be able to issue a s21.
                'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                Comment


                  #9
                  Could someone please point me to the part in the amended act that says a deposit cannot be protected after the 30 days and then a section 21 served. (Obviously a landlord would still be liable to the 1-3 months deposit.)

                  All I can find is this;

                  Section 215

                  (1) Subject to subsection (2A), 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) section 213(3) has not been complied with in relation to the deposit.
                  (2) Subject to subsection (2A), if section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.


                  "until such time as" rather than "unless" implies it can be subsequently protected.

                  As a court can order a landlord to protect a deposit (or return it) thus enabling a landlord to serve a section 21, why cannot the landlord protect it voluntarily and then serve a s21?

                  The N5b merely asks if the deposit was protected when the s21 was served.

                  It's probably me not being able to see the wood through the trees.

                  Comment


                    #10
                    Originally posted by boletus View Post
                    (a) the deposit is not being held in accordance with an authorised scheme; or
                    (b) section 213(3) has not been complied with in relation to the deposit.
                    (2) Subject to subsection (2A), if section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.
                    213(6) is in relation to 'prescribed information' which you can provide late with regard to the s21 sanction.

                    213(3) however says "Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 30 days beginning with the date on which it is received."

                    Comment

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