Didnt protect deposit - how can i evict?

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    Didnt protect deposit - how can i evict?

    Due to a number of reasons I forgot to protect a deposit on a tenancy, all my others are protected - this one slipped through. Tenant has been late paying rent from about 3 months into a 6 month agreement. Agreement was extended mutually for a further 6 months and she started receiving Housing Benefit which was paid directly to me. In October we were advised that as she hadnt replie to correspondence from HB her payments were being suspended, (late payment was received covering payment to mid August) This was then cancelled in November with the advice that she was not entitled to any payment after 29 July meaning that we potentially had to pay back some HB.

    It has subsequently been reinstated from mid August and back payment has been received but HB never covered fully rent and tenant is still in arrears.

    The Agreement ended on 7 September but tenant did not leave. We had served an official notice to quit and also a section 21 on the 1 June. Went to Court under Accelerated Possesion but as it is now clear that deposit not protected Judge wants to know why and we have another date in January to file a defence.

    How can we evict if we did not protect deposit and Section 21 notice is not valid? Is the Notice to Quit letter valid?

    Should we serve a Section 8 citing grounds 10 and 11?

    Should we return deposit now?

    Can we protect deposit now?

    help please .....pulling my hair out, I know its all my fault but cant see a way out

    #2
    Your best bet is to get the tenant to agree to use the deposit against arrears.
    Get this in writing, with her signature. If you can word the proposal to seem like you are doing them a favour, all the better.

    Alternatively, you need to return it to the tenant. Again, have proof that you have done so.

    Once you have done either of these, you are free to issue a Sec 21.

    End your previous claim for possession. It has no chance of succeeding.
    Allow tenants to protect their own deposits. I want free money when they do it wrong

    Comment


      #3
      As things stand you cannot get possession on the basis of the section 21 served because it was invalid - it will not be validated by refunding the deposit or getting the tenant to agree that it should be applied to outstanding rent. Accordingly you have no defence. I feel the judge ought to have simply dismissed your application. The Saint's advice to withdraw the claim is sound. Start again with full legal advice as to how to proceed.

      Comment


        #4
        Thanks for that advice, it is as we thought. Can we serve a Section 8 notice on grounds 10 and 11? and then start action following that? What do we do about deposit in that case? Thank you.

        Comment


          #5
          You can serve a Sec 8, but the tenant may defend the claim. They will probably put in a defence that they want 3 times the amount of the deposit. This will strike their arrears, you will get nothing on your claim, you will end up paying them on their counter-claim, and still no possession.
          Allow tenants to protect their own deposits. I want free money when they do it wrong

          Comment


            #6
            You still need to return the deposit. Don't go down the S8 route as it will be long and drawn out. As she is a HB tenant, she will likely seek help from the council who will tell her to submit a defence. She will probably make up something along the lines of things not being repaired.

            Start again with s21, but not before you have returned the deposit and have actual proof.

            Comment


              #7
              Thanks for info. Main advice seems to be to return deposit. Can we send a cheque by recorded delivery? Is this sufficient? Should we go round with cash? What is the best method? Thank you

              Comment


                #8
                Usually I'd avoid cash as there isn't a clear paper trail. However, on this occasion I'd be inclined to deliver cash, get her to sign to confirm it has been returned, then invite her to use that cash (now) to pay some rent.
                IANAL (I am not a lawyer). Anything I say here is just an opinion, so should not be relied upon! Always check your facts with a professional who really knows their onions.

                Comment


                  #9
                  The best way, IMO, is directly to their bank account. If you know the account number etc.

                  It goes directly there, there is no chance of them playing silly burgers and you have an instant record of the payment.
                  I offer no guarantee that anything I say is correct. wysiwyg

                  Comment


                    #10
                    I agree with post no. 9.

                    If you can do it this way, ensure in the 'reference section' you insert 'Refund Tenant's Deposit'.

                    Comment


                      #11
                      If the Council initially paid the rental deposit and stated that the LL can keep the deposit if the LL and tenant sign a new contract after the first year , does that mean that the LL no longer has to protect that deposit?

                      Comment


                        #12
                        If you have a contract with the council saying that if the tenancy is renewed after 1yr the deposit will be gifted to you (which seems to be what you're saying) then there is no longer a deposit to protect. It is now your money, not their deposit.

                        You will need to make this very clear to the court and have your documentation to prove it of course..... its not uncommon for councils to incentivise private landlords though so it shouldn't be too much of a shock to them

                        This doesn't mean you didn't have an obligation to protect the deposit when it was a deposit however, which means the tenant/council could potentially make a claim/counterclaim against you..... how likely theyd be to succeed is another matter as because the council paid the deposit the tenant hasn't suffered any loss which needs to be compensated. Im not sure but I think it would be the council who could have the claim, not the tenant but youd need to have that checked by a solicitor.
                        I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

                        Comment


                          #13
                          #Luke

                          1) I agree there is no longer a deposit to worry about for s21 purposes. I disagree with the last paragraph in #12, I believe the tenant has a clear claim against you and the court would have no choice but to award.
                          2) Best not to hijack threads - it confuses the original issue.

                          Comment


                            #14
                            I agree with you on the claim part actually snorkerz, just re-read s214 which states

                            214 Proceedings relating to tenancy deposits
                            (1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—




                            the relevant points being "where a deposit" and "the tenant or any relevant person", the act doesn't require the deposit to have been paid by the tenant themselves.

                            That means OP that you are potentially liable to pay compensation of between 1 and 3x the amount of the deposit, the court has no choice but to award that amount as snorkerz said.
                            I'm not a lawyer, what I say is the truth as I understand it. I offer no guarantee except good intentions.

                            Comment

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