Tenant claims he did not receive any letters from court

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    Tenant claims he did not receive any letters from court

    Good evening


    Sorry for the long story but here goes...

    I am a new landlord and rented my property out to what turned out to be very bad tenants.

    I am owed 4 months worth of rent and a section 21 was served back in March (6/3/16 to be exact and to expire on 6/5/2016). Notice was served with EPC certificate, gas certificate and right to rent brochure with a witness on hand when I hand delivered the notice.

    Section 8 notice was served through Landlord Action on 25/4/12 and expired on 11/5/16.

    TA started on 31/10/15 with a 6 month break clause which I decided to use because they were persistently late with rent and also had more than 10 people living in the house when it was permitted for 5.

    I found these people through a local agent who paid me the deposit on 12/11/15 (this is when I physically received the money into my account, I have bank statements which can prove this and also an invoice from the agent which states that 12/11/15 is latest when I can expect deposit and first month rent to come in to my account) and I protected the deposit on 3/12/15 and served prescribed info on 5/12/15 but heard nothing from them and then sent another letter on 16/12/15 to follow up but again no response to the prescribed info so they did not sign and return it (not my problem because I made the effort, they neither asked for it and when I served it they ignored it).

    Property is fully licensed with local council and so to my knowledge compliant on all grounds.

    Solicitor says that going through section 21 notice may not get me possession because there is concern with deposit. I am told that it does not matter when I received the deposit, if tenant handed money over to agent on 31/10/15 then technically it should have been protected then and not from 12/11/16 when I PHYSICALLY received the deposit. How can I protect a deposit I do not have? I did not do it immediately but I did do it within 30 days with prescribed info (cover letters were sent as well).

    Solicitor keeps on saying go through Section 8 - it will take longer but there is better chance to get possession because there is a chance that section 21 will be struck out but I can not for the life of me understand why when I have complied with all the rules? Are they trying to make more money from me by going to court?

    Both notices have expired - is it ok to press ahead and start court proceedings with both of them or..?

    Please can anyone help me with some advice or thoughts? Anything would be appreciated, really having a tough time dealing with this situation...

    #2
    deposit must be protected within 30 days of it being paid: Not paid to you. The agent is effectively "you". No point arguing the point, you will lose.

    However what to do. If you return it tenant may pay some arrears off..

    There may be large legal fees in the s8 route: Wonder why solicitor is keen....
    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


      #3
      You have a fundamental misunderstanding that is based on the premise that the Landlord and the Agent are distinct and different entities... for deposit payment you can consider them the same.

      Comment


        #4
        theartfullodger,

        So I am in the wrong here? When I served the section 21 notice, the deposit was protected with DPS and prescribed information was also served.

        Even if a landlord does miss the 30 days, if they take steps to remedy situation by serving out of time then surely my section 21 notice is valid? Or is that not the case? If I did indeed miss the 30 days is there no way I can go down the section 21 route? Even though deposit is protected?

        Regards

        Manny

        Comment


          #5
          Hippogriff,

          Would it not be possible to drag the toerags that are the estate agents in to it and ask them why I was paid the deposit late? I made a grave mistake in not protecting it immediately but I was under the impression that my 30 days started from 12/11/15 when I physically received the deposit and not when the tenancy agreement started which was 31/10/15 when I did not receive any deposit payment from the tenant. Is the estate agent not liable in this matter?

          Comment


            #6
            theartfullodger,

            I emailed the DPS on 12/5/16 and asked to confirm in writing whether the deposit was protected in time and this was their response:


            Thank you for your email of 12 May 2016.

            The Housing Act 2004 requires that the landlord must pay the deposit to The DPS within 30 days of physically receiving it. Our Terms and Conditions do make clear however that a deposit will be accepted after this date. This is confirmed in clause 3(a) of our Terms and Conditions.

            This is because the purpose of The DPS scheme is to protect deposits even if the 30 day deadline is not met.

            Please be aware that if you confirm that Court action is being taken, the account will be suspended pending the outcome of Court proceedings. Once the proceedings have concluded we must be provided with a copy of the Court Order which must direct release of the deposit to the successful party in accordance with section 31 of our Terms and Conditions.

            Please confirm via return email if you wish for us to suspend the account.

            Should you require any further assistance, please do not hesitate to contact this office.

            Now this is what is coming straight from DPS - I asked them to confirm whether the deposit had to be protected 30 days from physically receiving it and they said yes. They said it has nothing to from the start date of the tenancy agreement but instead when I receive the money. Who is wrong here I am very confused and exasperated.

            Comment


              #7
              You've been given good, consistent, advice. Your choice to ignore it.

              You say new landlord: What date did last fixed term start please?
              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


                #8
                Good morning

                The last fixed date term as in when the tenancy agreement began? If so, it started on 31/10/2015.

                When you say been given good advice do you mean from the solicitor or from this forum?

                Kind regards

                Comment


                  #9
                  The agent is your agent: He is effectively you. When the agent got the deposit, the clock started. See
                  https://www.gov.uk/deposit-protectio...-and-landlords
                  You (or your letting agent) must put your tenants’ deposit in the scheme within 30 days of getting it.
                  You are welcome to stick to your view that the clock only starts when you got it but £25 to an agreed housing charity if that works out.

                  You also state
                  am owed 4 months worth of rent and a section 21 was served back in March (6/3/16 to be exact and to expire on 6/5/2016). Notice was served with EPC certificate, gas certificate and right to rent brochure with a witness on hand when I hand delivered the notice. ..
                  There may be a problem with that: The requirement is that EPC, GSC & "How to rent" booklet are served BEFORE s21 was served. Service at the same time is tricky unless you get signed, dated & timed acknowledgement from tenant for all documents showing sequence. Serving a "right to rent" booklet is of no use.

                  Given all that start again... Re-serve EPCs, GSCs & "How to rent" booklets. Return deposit - or get written agreement to it's use against arrears. Next day serve new, valid s21s.

                  If owed 4 month's rent had you been serving s8s from 02/01/2016? An s8g10 can be served if only 1p is underpaid by only 1 day.

                  You also note
                  ..Section 8 notice was served through Landlord Action on 25/4/12 and expired on 11/5/16.
                  Hope you meant 25/04/2016.

                  Tenant may also sue you for up to 3xdeposit for late protection. Returning deposit just might mean judge awards lower than 3x. I think it possible tenant might raise the 3xdeposit being notionally "owed" to him to effectively reduce s8 & get s8 chucked out (and you left with large legal bill - your costs & tenant's solicitor's fees).

                  You state tenants: How many joint tenants? Were separate s21s, s8s & all documents addressed to each of the joint tenants?

                  Are there any repair issues tenant has raised?? Even ones you think spurious?
                  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


                    #10
                    Originally posted by mannyd View Post
                    Would it not be possible to drag the toerags that are the estate agents in to it and ask them why I was paid the deposit late? I made a grave mistake in not protecting it immediately but I was under the impression that my 30 days started from 12/11/15 when I physically received the deposit and not when the tenancy agreement started which was 31/10/15 when I did not receive any deposit payment from the tenant. Is the estate agent not liable in this matter?
                    I don't mean to be rude, but it doesn't matter what impression you were under... the deposit was paid on date X and it should have been protected by date Y. This is your problem, in a nutshell. You won't succeed in muddying the waters, insisting that there was person A involved, and person A was lax and didn't pass the monies to person B for ages... and person B protected it as soon as they were able. How many people do you think will have tried that angle before? How many people do you think have claimed ignorance as a defence? It's a lot. It's never worked - because it can't work - the dates are in black-and-white. The 'offence' has either happened or it hasn't.

                    The DPS response conflates "Landlord" and "Agent"... they've not separated you out. Otherwise a Tenant could pay a deposit on 1 Jan to an Agent, who could not protect it at all, then the Landlord decides they want to serve a Section 21 on 31 Dec and instructs the Agent to pass over the deposit for protection - it's obviously beyond 30 days... there's no get-out clause here. The DPS is not incorrect, you are just misinterpreting what they've said (because that would be nice for your predicament).

                    Sorry.

                    Comment


                      #11
                      Hi

                      It looks like I will be made the criminal in all of this then because a few things were served out of time - I am a new landlord so hopefully the judge takes that in to consideration.

                      They are {Mod - nationality removed} around 30 of them were in there last time I visited. They physically grabbed and pushed me out of my own property and pushed my family friend to the ground.

                      I doubt that the tenant will even come forward in Court - he has refused to communicate with me throughout the tenancy and instead all of my communication has been with a woman who claims to be his wife but she is not named on the tenancy agreement - strange because she says she is his wife but I do not believe this to be true. Everytime I have tried to get through to the named tenant he has not been at the property and on the one occasion I did meet him he refused to give me his mobile number and does not even speak English properly. I suspect he is the only person who has status in this country and therefore can get through all the tenant checks and then all the other leeches come and stay in the property.

                      The tenants want to be ejected by the bailiffs that much is clear to me - they know that eviction is a long process so till the bailiffs come they can live rent free. They stopped paying rent in February. So I am owed rent for Feb, Mar, Apr and now May. I got landlord action to serve a section 8 after 3 rent payments were missed it should have been sooner but there we go. It's a terrible situation for a novice like me to be in.

                      The solicitor might just be right then that going through section 8 is correct and has more chance of success - I do not want to risk having my s.21 struck out but my question is can I go to court with both notices and use s.21 for now but get a court hearing set up for the s.8 in the meantime in case the former fails?

                      Thank you

                      Manny

                      Comment


                        #12
                        You're not a criminal. You fell foul of a process. The consequences can only be £s.

                        Comment


                          #13
                          Sorry you are in this hole. Was the agent just finding a tenant or also managing it?

                          Could you please clarify: Is the named tenant a single individual?? If not how many and what relationship?

                          Was the tenancy an AST or was it a tenancy permitting the tenant to rent to other people?

                          30 people? How many bedrooms, how many floors, and is it a licensed HMO?

                          If tenant is no longer there you've another problem. It would no longer be an AST, s8 & s21 no longer strictly valid & you might also be advised to serve & pursue an NTQ in line with the terms of the tenancy agreement. In the circumstances I would pay whatever necessary to pursue eviction soonest using all of s21, s8 & NTQ - but note what you must do for a valid s21.

                          How do these alleged 30 occupants relate to/know the named tenant?

                          How do you know the nationality & ethnicity of the occupants? Have you seen their passports? You might wish to involve the Police & Border agency. As you appear to have been assaulted I hope you reported that to Police & got a CRN.

                          Be aware if there is overcrowding the landlord may get fined & get a criminal record.
                          http://www.legislation.gov.uk/ukpga/...es-of-landlord
                          - but in your circumstances you should be OK unless you've known about it for some time & done nothing. Think I'd involve council housing people so they are prepared & know what is going on.

                          Presumably the occupants are paying the named tenant? (Yes?) If so letting the named tenant know HMRC will find out unless he gets them out might help.
                          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


                            #14
                            If you are determined to go the s21 route, you will have to return the deposit to the tenants and then serve a new s21 notice.
                            Your current notice is invalid and nothing can fix that now.

                            You can go the s8 route, which is likely to be successful quicker, unless the tenants make a big effort to defend themselves.
                            I'd follow your solicitor's advice and let them handle the eviction.

                            It's simply less personally stressful.
                            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


                              #15
                              Yes you're correct but I feel like I am a criminal being penalised for all of this rather than the tenant. It's financially crippling and really such a stressful situation

                              Comment

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