S.13 notice and Tenancy Deposit Scheme

[Josie8]

My friend has rented for 2 1/2 years on an tennacy agreement. Orignal deposit in Feb 2005 was £900. After initial six month period the tenancy became a periodic one. She was served a s.13 for a rent increase taking effect on 1st May, 2007. This she has complied with. Does this mean that the deposit should have been lodged in a deposit scheme? She's planning on leaving but is expecting trouble from the landlord getting her deposit back.

If it should be in a scheme because new contract etc by virtue of s.13 increase would she be able to take landlord to court for not being in scheme if he doesn't refund deposit?

[Josie8]

bump

[MrShed]

S13 does not create a new contract. Even if it did, I do not think that TDS is for renewals, only entirely new contracts/tenancies.

[Joa]

Tenancies which are renewed formally (i.e. new contract) after 6th of April qualify for TDS.
I was wondering if S.13 could be seen as creating a new tenancy because one of the terms (rent amount) has been changed.
I think you need to call Shelter helpline.

[rosysparkle]

In this case, the tenancy remains periodic, the same in all respects save the higher rent. There is therefore no requirement to put the deposit into a scheme.

[MrShed]

Joa as a point of note, there is no question that a new TENANCY is not created by an S13. Whether a new CONTRACT is created is perhaps up for debate - it is important to distinguish between the two

Never the less, I am interested what the legal position is of a "renewal" and TDS - ie a new fixed term being signed up for. I can see arguments for either side - ie renewal after April this year requiring the deposit to go into a TDS or not.

[rosysparkle]

Mr Shed - If a tenancy is renewed for a new fixed term, that creates a requirement for protection. If a tenancy goes onto a periodic, then the deposit doesn't need to be protected.
From The Dispute Service Website:

1. The tenancy becomes periodic (e.g. carries on from month to month subject to notice) - absolutely no paperwork is required - and the only lawful way in which the rent can be increased under such a periodic tenancy e.g. by way of a section 13 notice, which is a prescribed notice.
2. A "replacement" tenancy is created. If tenancy does not go periodic when the fixed ter m expires i.e. a further fixed term is agreed between the parties. Whilst some in the industry might talk of a Memorandum of Extension (or use other words to describe paperwork) to facilitate this process, the Housing Act 1988 as amended by the 1996 Act solely refers to a "replacement" tenancy. Any such paperwork, no matter what it is called, therefore creates a "replacement" tenancy.
Reading the extract from the legislation there seems absolutely no question that a "replacement" tenancy is a new tenancy and thus the deposit is caught under the TDP legislation and, at that time, must be protected. (with thanks to NAEA)

[Joa]

Any such paperwork, no matter what it is called, therefore creates a "replacement" tenancy.

To be absolutely clear for OP: her S.13 has in fact created a replacement tenancy and therefore her deposit is protected. Correctimondo?

[MrShed]

No Joa, it just changes the terms of the CURRENT tenancy. The status of the tenancy is still periodic, and as such has not been replaced.

Thanks for the clarification Rosy!