Can tenant go to court during continuation of tenancy for deposit protection

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    Can tenant go to court during continuation of tenancy for deposit protection

    Hi,

    I have Assured Shorthold Tenancy Agreement with my tenant for 6 months. It's been two months but I haven't yet protected my tenant's deposit under TDP scheme. In this situation can tenant file a case in the court while the tenancy has not ended yet?

    Thanks

    #2
    The deposit legislation as can be found on the deposit protection service website, states:

    As part of the Housing Act 2004 the Government introduced tenancy deposit protection for all assured shorthold tenancies (ASTs) in England and Wales where a deposit is taken. From April 6th 2007, all deposits paid under an AST should have been protected within 14 calendar days of receipt by the landlord. From 6th April 2012, deposits for all assured shorthold tenancies (ASTs) in England and Wales must now be protected within 30 calendar days of receipt by the landlord, this change is as a result of the Localism Bill 2011.

    The DPS advise goes on to say:

    Where a landlord fails to comply with Tenancy Deposit Protection, there are two sanctions:

    a. Unable to use Section 21 notice
    Under Section 21 of Housing Act 1988, a landlord can serve two months' written notice on a tenant in order to terminate a tenancy at the end of a fixed term, or after a fixed term has expired. However, where a landlord fails to comply with Tenancy Deposit Protection, no Section 21 notice may be given in relation to the tenancy until the legislation is complied with.

    b. Payment to the tenant
    Tenants can make an application to a County Court under the Housing Act 2004 if they believe that their deposit is not being safeguarded, or where they have not been given the prescribed information about the scheme in which the deposit is safeguarded within 30 days of the landlord receiving the deposit.

    Where the court is satisfied that the landlord has failed to comply with these requirements, or the deposit is not being held in an authorised scheme, the court must either order the landlord to repay the deposit within 14 days of the making of the order, or order the landlord to pay the deposit to the custodial scheme administrator.

    The court may also order the landlord to pay the tenant up to three times the deposit amount within 14 days of the making of the order.


    So in answer to your question, it seems the tenant can apply for a court order straight away after the 30 days have past. I would suggest (with no real certainty without checking with previous cases) that if you protect the deposit now, you still may not be able to use a section 21 notice but you should avoid the fine.

    Act now and write to the tenant apologizing for the delay in protecting the deposit and trust the tenant withdraws their claim. You are in the wrong and need to put it right as soon as possible to the best of your ability.

    Comment


      #3
      Yes, your tenant could bring a case - why would you want to risk it? Ge the deposit protected, PI issued and get a receipt from tenant for it. I wouldn't mention the late date.

      Alternative is to refund the deposit.



      Freedom at the point of zero............

      Comment


        #4
        Originally posted by gjhalfpenny View Post
        So in answer to your question, it seems the tenant can apply for a court order straight away after the 30 days have past. I would suggest (with no real certainty without checking with previous cases) that if you protect the deposit now, you still may not be able to use a section 21 notice but you should avoid the fine.
        Hi there - your advice is actually backwards. The fine is a penalty and is unavoidable, it has been reduced from a mandatory 3 times to an amount of up to 3 times. LL's who do not protect the deposit WILL be fined/penalized. It is the Section 21 that can be served once the deposit is protected or returned.

        Comment


          #5
          Originally posted by MW1985 View Post
          ....It is the Section 21 that can be served once the deposit is protected or returned.
          S21 notice can be served any time you like: The question is, is it valid?

          Surely s21 would only be valid after deposit returned or used for back-rent with written agreement of tenant??

          See s.215(1) Housing Act 2004, as amended by s.184 Localism Act 2011.
          215 Sanctions for non-compliance

          (1) 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.
          Initial requirements including being protected within 30 days...

          Cheers!
          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
            Yes theartfullodger, my sentence was poorly expressed. A section 21 can certainly be served at any time during a tenancy, but it may not be a valid Section 21. If the deposit was not protected and a section 21 was served it would not be valid. The deposit must therefore be protected or returned to the tenant or used to whittle down arrears (with written consent of tenant), before a valid section 21 can be served.

            Comment


              #7
              No section 21 will be valid if the deposit was protected late.

              Comment


                #8
                gjhalfpoenny stated "a. Unable to use Section 21 notice
                Under Section 21 of Housing Act 1988, a landlord can serve two months' written notice on a tenant in order to terminate a tenancy at the end of a fixed term, or after a fixed term has expired. However, where a landlord fails to comply with Tenancy Deposit Protection, no Section 21 notice may be given in relation to the tenancy until the legislation is complied with.


                Which should read that "no effective s21 may be given in relation to the tenancy until the legislation is complied with", shouldn't it? Which implies that once the deposit is protected then an effective s21 notice can be served.

                jjlandlord suggests otherwise, unless there is an apostrophe missing after their "No" in the post above?

                Which view is correct?

                pm
                Before acting on forum advice, you may wish to consult an expert, someone who has all the relevant facts, and who accepts liability for their advice.

                Comment


                  #9
                  Originally posted by jjlandlord View Post
                  No section 21 will be valid if the deposit was protected late.
                  I've no practical experience of this.

                  If a deposit is protected late at any point, no valid s21 can be issued in the entire tenancy?
                  Or can a new tenancy agreement rescue the situation?
                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                    #10
                    Originally posted by jjlandlord View Post
                    No section 21 will be valid if the deposit was protected late.
                    - unless deposit returned (ensure you have proof) or used against rent-arrears with written agreement of tenant.

                    Scotland does not have this problem. Thank you big 'eck.
                    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


                      #11
                      Do you have any evidential proof of this view Artful?

                      The quoted section appears to be ambiguous? The legislation can not be complied with once the 30 days has passed. So the suggestion that a s21 will be valid once the legislation is complied with makes no sense.

                      pm
                      Before acting on forum advice, you may wish to consult an expert, someone who has all the relevant facts, and who accepts liability for their advice.

                      Comment


                        #12
                        I read the legislation differently as well.
                        The 30 day limit is part of the legislation not (as far as I can see) part of the Initial Requirements of the protection agency.

                        But fortunately this is something that comes up dozens of times a day and there might be an actual answer.
                        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                        Comment


                          #13
                          Originally posted by property mongrel View Post
                          gjhalfpoenny stated "a. Unable to use Section 21 notice
                          Under Section 21 of Housing Act 1988, a landlord can serve two months' written notice on a tenant in order to terminate a tenancy at the end of a fixed term, or after a fixed term has expired. However, where a landlord fails to comply with Tenancy Deposit Protection, no Section 21 notice may be given in relation to the tenancy until the legislation is complied with.


                          Which should read that "no effective s21 may be given in relation to the tenancy until the legislation is complied with", shouldn't it? Which implies that once the deposit is protected then an effective s21 notice can be served.

                          jjlandlord suggests otherwise, unless there is an apostrophe missing after their "No" in the post above?

                          Which view is correct?

                          pm
                          This section that you quote from my post is a direct copy and paste from the DPS website - not my words. I would therefore expect the DPS information to be correct. Hope this helps.

                          Comment


                            #14
                            If the deposit wasn't protected within 30 days then you must refund it in order to serve a valid s.21 notice.

                            Comment


                              #15
                              Originally posted by property mongrel View Post
                              Do you have any evidential proof of this view Artful?

                              The quoted section appears to be ambiguous? The legislation can not be complied with once the 30 days has passed. So the suggestion that a s21 will be valid once the legislation is complied with makes no sense.

                              pm
                              I agree: Don't quite understand why you are asking... my earlier post said deposit must be returned or used for back-rent with agreement of tenant before s21 may be valid...

                              See this presentation from solicitors..
                              http://www.anthonygold.co.uk/uploads...am_25March2014

                              Of course as with all s21 matters it depends on tenant understanding & not just going & challenging validity in court.

                              AIUI many if not most tenants simply leave on s21 expiry date.
                              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

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