tenancy eviction being appealed

[MissCalculated]

Hi I have a rather complicated eviction situation. I have served notice to my tenant under section 21 - he is on housing benefits so the council pay the majority of his rent (he is meant to make a contribution which he hasn't done so for several months - I'm not bothered about this as I just want him out so we can sell the property).

I own the ground flat with my ex partner and we are trying to sell the flat. The tenancy agreement I have with the tenant is in mine, my ex's and the tenant's name and was for a fixed 12 month period that rolled on. No deposit was taken and none is recorded or mentioned in the tenancy agreement.

The problem is that the tenant is appealing the repossession of the flat because he says a deposit was taken, was not protected and has not been paid back to him prior to the court action being taken.

His evidence reflects that he paid a deposit for the upstairs flat that he lived in prior to moving into the downstairs. The upstairs flat is owned fully by my ex and the tenancy agreement is in their names not mine.

It's possible my ex may have agreed to keep the deposit for the upstairs flat rather than refund and have him pay again for the downstairs flat he now lives in but there is no record or proof of that.

My question is, can I appeal back to the courts/judge given that there is no deposit recorded as paid for the downstairs flat and that the tenant needs to take up the matter of the upstairs deposit with my ex?

I'm confused because as far as the tenant is concerned at least one of his landlords has been the same for both properties. But mainly I'm very concerned that the judge may throw out the repossession and say notice has to be served again - I don't know what I'm liable for if anything.

Can anyone offer any advice or help? - I'm sick with worry.

[jpkeates]

What does your ex say about the deposit and whether it was carried forward or not?

The tenant is hardly likely to have paid a deposit and then agreed it wasn't going to be returned when the original tenancy ended.
I'd say that that might persuade judge that something must have been agreed about the deposit.

If it wasn't protected originally and the original deposit was paid less than six years ago, the tenant can make a claim against your ex for a penalty.
If the judge decides there was a deposit on the current tenancy (and it began less than six years ago) the tenant can make the same claim against you both.

[KTC]

Can anyone offer any advice or help? - I'm sick with worry.

Yes, talk to your ex to find out exactly what happened, and to consult a lawyer.

[theartfullodger]

Provide the evidence, clearly & calmly, to the court. It is quite possible there will be a hearing;

What the judge decides if for the judge to decide, they have wide powers.

The good news is that eventually with s21 you will get him out, even if (for example..) judge decides there was a deposit & you have to return it (which you never had) then serve another s21.

Personally I would ensure local housing dept know about his arrears so that scarce council housing & council help is not wasted on this scro*t.. and I'd also pursue him through small-claims for wht he owes & ensure he gets CCJ, unless paying promptly in full.

And any reference is complete, honest & mentions arrears.

[AndrewDod]

As far as I can see the downstairs is a completely different tenancy.
Different property
Different landlord
With no evidence of a deposit taken in relation to that tenancy (and least as you tell it).

That is the line I would hold, and tell that clearly without sidetracking. You are not responsible for the actions of the tenants last landlord. The fact that your ex also happens to be named as a landlord in the current tenancy is seemingly irrelevant.

[MissCalculated]

What does your ex say about the deposit and whether it was carried forward or not?

If it wasn't protected originally and the original deposit was paid less than six years ago, the tenant can make a claim against your ex for a penalty.
If the judge decides there was a deposit on the current tenancy (and it began less than six years ago) the tenant can make the same claim against you both.

Thanks for the advice.

I spoke with my ex & he said he was unaware of the deposit, The original tenancy agreement for the upstairs flat started in 2003, this was when the deposit was originally paid.- his deceased mother dealt with the deposit when she rented out the upstairs flat when we lived overseas.

I just spoke with the Landlord advice agency and they advised me that the s21 notice would be invalid as with the same landlord (my ex) and tenant on the new contract it would follow that the deposit responsibility/liability carries over - different had my ex not been on the new contract.

They have advised me to discontinue my current court claim, pay the deposit to the tenant, and issue a new s21. so it looks like it will be at least another 3 months before we can get the place back.

slightly less freaked out now I know I have a plan of action.

[jpkeates]

While I can see that a judge might follow the same line of reasoning as the landlord agency, I don't think they're correct (but practical advice is more useful than theoretical advice).

Send the deposit back to the tenant today (cheque with proof of postage from a post office), and serve a new s21 notice in a couple of days.
At least then it's only another two months, not three.

[thesaint]

As far as I can see the downstairs is a completely different tenancy.
Different property
Different landlord
With no evidence of a deposit taken in relation to that tenancy (and least as you tell it).

That is the line I would hold, and tell that clearly without sidetracking. You are not responsible for the actions of the tenants last landlord. The fact that your ex also happens to be named as a landlord in the current tenancy is seemingly irrelevant.

Exactly this^^^

You have already provided the court the first and any subsequent tenancy agreements.
The tenant will provide a tenancy agreement relating to a different property.

His previous landlord returning the deposit now opens you up to all sorts of problems.

[jjlandlord]

It is irrelevant whether the previous landlord hasn't returned the deposit related to the previous property.

The only thing that matters is whether a deposit was taken in relation to the current tenancy for the current property, and the documented evidence shows that no deposit was taken. That should be your rebuke of the tenant's defence.

[MissCalculated]

I think part of the confusion lies in that the property is for the same address - just different floors. That, and my ex is named as landlord on both properties which is why the LAA said deposit liability carries over with the continuation of both tenant and landlord on the new agreement.

The tenant has provided hem with copies of his original agreement for the first floor flat, and a subsequent rolling agreement for the same flat where the deposit section was left blank. I'm pretty sure he's sought advice from the Council and/or CAB as both will advise him to stay in the property for as long as possible, by any means possible too.

Rather than running the risk of a failed court case an further legal costs, I'm swaying towards paying the deposit, having him sign a document closing the matter as settled and issuing a new s21

[MissCalculated]

Exactly this^^^


His previous landlord returning the deposit now opens you up to all sorts of problems.

What sort of problems? If I have him sign a doc confirming the amount paid in full and settled, would that not protect me?

[jjlandlord]

Rather than running the risk of a failed court case an further legal costs, I'm swaying towards paying the deposit, having him sign a document closing the matter as settled and issuing a new s21

There is no such risk, quite the opposite.

If you admit that a deposit was paid: (1) you will have to repay it, (2) you will be liable for the non-protection penalty, and (3) the current repossession proceedings will fail and you will lose the court fee and may have to pay the tenant's cost.

If you do not admit that a deposit was paid (which is the truth) and submit a rebuke to the tenant's defence the outcome cannot be worse but only better.

[jpkeates]

It's a question of pragmatism vs being right.

There doesn't seem to be any deposit for the current tenancy and that situation is documented.

But, in practice, the tenant is going to claim that there was a deposit on the first tenancy (landlord ex mum then ex).
It's never been returned and was used as a deposit on the current tenancy.
The court can go either way on that one (this is a prediction and therefore a guess) - the fact that that deposit doesn't ever seem to have been returned is an issue, and it lends credence to the tenants case.
Why on earth would they accept that your ex had some of their money and hadn't returned it otherwise.

The fact that the second rolling contract for upstairs is also a factor, because no one's disputing that there was a deposit for upstairs and here's another tenancy agreement from one of the current landlords where there's apparently an undocumented deposit.
Which again supports the tenant's claim.

If you progress the current s21 you've got a chance the court will find in your favour, agree there's no deposit and carry on.
If the court goes the other way, you're then returning the deposit, serving the notice, getting a new court date before you're any further forward.
If you return the deposit, you have a known situation, but you do expose yourself to a claim for non-protection of the deposit for the current tenancy.

[MissCalculated]

Thank you very much, that really helps me feel a lot clearer about the decision I will make. I'm inclined to agree with your guess of the way things will swing if I were to progress the existing s21.

I think I'll go with the pragmatic approach - in all honesty I just want to extricate myself from the property with as little stress as possible. Known situations I can deal with.

Thanks again.

[jjlandlord]

It's a question of pragmatism vs being right.

In this case both suggest the same approach.

As written, providing a rebuke to the tenant's defence has only upsides.