Section 21 Notice but Deposit not protected

[danielson81]

Hi there,

Me and 2 other friends have been renting a house since July 2006, every six months we have signed a new Assured Shorthold Tenancy Agreement. I phoned up last week about renewing from 17th Jan 07 to 17th July 2007 and said they would put it in writing.

Today we received a letter saying we had two months to vacate the property. However as our deposit is not protected (if it is we have not been notified!) I noticed the landlord (or letting agency) cannot issue a Section 21 Notice. From depositprotection.com

a) Unable to use 'notice only'
Currently, a landlord can regain possession of the property after the first six months of an AST, providing any fixed term has expired and the tenant has been given at least two months' written notice (under Section 21 of the Housing Act 198. This right to repossession using the usual 'notice only grounds' will be lost if the deposit has not been safeguarded in an authorised scheme and the prescribed information passed onto the tenant within 14 days.

Firstly we are going to ask nicely if we can stay till July, if we did threaten this what could the landlord do to evict us? I am also aware that the deposit would possibly have to be repaid at 3 times the amount we paid, if we went to court.

I imagine if I did go down this route they would say it started in July 2006 and the law doesn't apply. However:

For a replacement / renewal tenancy:

This is a new AST and so TDP will apply. The deposit previously paid under the earlier tenancy is repayable to the tenant at the end of that tenancy, so it should be returned to the tenant. Alternatively, if the landlord wishes to continu to hold it as security in respect of the new tenancy it must be protected.
A copy of the first page of our AST is here (with some details blacked out!):

http://i194.photobucket.com/albums/z...tagreement.jpg

To cut a long story short, is it worth fighting this to stay through to July? We have been good tenants, the letting agency said themselves.

However what if it is protected and they haven't told us?


Any advice is welcome!

[MrShed]

If it is protected, you should have received confirmation of this within 14 days of signing the new tenancy. You are right, you cannot be evicted using the S21 procedure at this current time, so you are within your rights to fight the eviction.

[Planner]

And claim for non-compliance as follows;

http://www.consumeractiongroup.co.uk...s-wording.html

[danielson81]

Found this under "Miscellaneous" on the contract, so it might be in a scheme, but we haven't been told. I will ring and ask them tomorrow.

Point 5.3 here: http://i194.photobucket.com/albums/z...agreement2.jpg

If a Deposit is paid it shall be protected under a statutory tenancy deposit scheme by the Landlord and shall be to ensure performance of the tenants obligations and be repayable to the tenant after the end of the Tenancy but the Landlord (who must act reasonably) may retain any sums required as compensation for loss caused by any breach of obligation by the tenant, subject to provisions of the statutory tenancy deposit scheme.

Never mind

[MrShed]

Its pretty much irrelevant. They should have notified you within 14 days of commencement what scheme it was held under. If they havent(and I could be totally wrong here) I think it is the same position as if they hadnt held the deposit in a scheme at all...

[Planner]

Ah but he should have informed you within 14 days of certain perscirbed information concerning the deposit, so he is still in breach and still cant use section 21;


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.

[MrShed]

Great minds and all that planner....

[danielson81]

Thanks for all your replies, if it is in a scheme, could the letting agents prove or not prove they told us about the scheme.

I can imagine them saying they sent us a letter on XXXX and hold a copy up in court. When in reality they wrote it the day before the court hearing.

I am also worried about point 5.3 as mentioned in post #4, they have informed us, in a way.

I have emailed all three deposit scheme providers asking them if our deposit is protected with them, they probably won't tell me, but its worth a shot

[danielson81]

Just spoke to Letting Agents,

Made a casual enquiry about the deposit, pretending I was ignorant and said as we first paid deposit before new law were we protected etc. (although our last renewal was a new six month AST on 16th July 2007)

Agent said "You should have no problems with your deposit as the recent inspection was fine, but no its not protected in a scheme"

Hmmm?

[Esio Trot]

Originally Posted by danielson81

Firstly we are going to ask nicely if we can stay till July, if we did threaten this what could the landlord do to evict us? I am also aware that the deposit would possibly have to be repaid at 3 times the amount we paid, if we went to court.

As has been stated above, the s21 looks to be invalid.

My advice would be to say and do nothing for now.

When the 2 months is up and if the landlord/agent queries this, you can then say you are not going until July. The ball is then in the agent/landlord's court. They can if they wish start court proceedings to enforce the s21.

Should you receive court papers, it is a simple thing to complete the defence (but not until just a day or two before the deadline) stating that the s21 issued is invalid as the deposit was not protected. At this stage, should it happen, you can always ask for advice on wording.

It will be July before all this comes to the end, so you will have accomplished your main aim - staying until July. Once you leave, then that is the time to pursue the DPS claim.

[danielson81]

Thanks for all your replies. The LA said the landlady is selling the house.

I think we might just move out in March and pursue the deposit through the court if there are any major discrepancies.

Thanks once again

[Esio Trot]

Originally Posted by danielson81

Thanks for all your replies. The LA said the landlady is selling the house.

I think we might just move out in March and pursue the deposit through the court if there are any major discrepancies.

Thanks once again

If you are willing to go in March, you could try and turn this to your advantage.

You could ask the LA to make it worth your while and pay your expenses of moving early, plus a drink or two on top to compensate you for your reasonableness

[danielson81]

Thanks, might try that. If we stay with same agency we might get them to waive any new referencing fees etc.

[danielson81]

If we got all the deposit back, would it be worth still claiming back 3x amount of deposit? Would a court just think we are being greedy?

[DevonShrimper]

Originally Posted by danielson81

If we got all the deposit back, would it be worth still claiming back 3x amount of deposit? Would a court just think we are being greedy?

A question. Are you bothered if the court thinks you are being greedy? Surely you are just asking the court to provide you with what you are entitled to as the Housing Act 2004 states:

"The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.”

You might have a look at:
http://www.consumeractiongroup.co.uk...s-wording.html

I'd be interested in others opinion on this matter as my daughter has just got her landlady to place it in a scheme after 8 months. She has also just given my daughter notice. Landladies revenge.