Hello,

Could i request some legal advice. I am a landlord.

My tenant rented a room in the property from 1st April 2011 to 30th Sept 2011 from July she stopped paying rent (as she lost her job) and then moved out of the property at the end of July but kept the key. I did try to help her to find a tenant to replace her so that the rent debt would be reduced, but instead she decided to keep the key/let herself in to the property/claim she was still a tenant and therefore i have been unable to let the room. Following no communication from her I started a small claim in August for the final 3 months rent.

She then called in the council and HSE (which was just hassel as no problems were found) on a malicious basis and has put in a counterclaim for 3 x depsit plus all the rent she actually paid in the house and various other things. The counterclaim is nearly 3 times my original claim for rent.

I did protect her deposit of £200 late in August 2011, but it is now protected with the DPS.

As it looks like we are going to court in Oct/Nov 2011 i have a few questions:-

1. Should i leave the deposit with the DPS when her tenancy ends or repay to her? Has she any chance of winnng the 3x deposit counterclaim?

2. Did i make an error in starting the claim during the tenancy in August 2011 rather than after the tenancy had ended?

3. There are 2 landlords on the the tenancy agreement but the claim is just in my name (as money claim online doesn't allow you to enter 2 claimants). Any issue with this?

4. Any other advice would be appreciated.

Thanks

Helen

Hi chick

Welcome to CAG

The guys will be happy to advise as soon as they are available.

In the meantime have a read of number 15 in my signature.

http://england.shelter.org.uk/get_advice/paying_for_a_home/tenancy_deposits

1) Essentially, you have nothing to worry about with the counterclaim because the appeal court has decided that late protection is fine. Presuming rent is due at the end of the tenancy* then claim that through the deposit. When you get paid, notify the court so that the claim amount is reduced. Keep all the paperwork to prove the deposit WAS protected.

1a) As she is no longer using the place as her primary residence, the tenancy has ceased to be an AST (it is still a tenancy). Deposit protection laws only apply to ASTs, and the appeal court has also decided that once a tenancy is over, it is not possible to claim for non-protection. I wonder if a judge would extend that to "once an AST is over, no claim"?

2) Why did you commence your claim before the end of the tenancy? At that point you didn't know how much the total amount would be. Why did you not just evict? A section 8 would have resulted in a possession order and an order for the rent - avoiding the need for the MCOL claim and getting you the property back (and so lettable to someone who pays rent) sooner.

3) Don't think this is an issue

4) You do need legal advice. The 3x claim (section 214 of the 2004 Housing Act) should NOT be dealt with on the small claims track (it is a Part 8 claim). This means the entire case could be transferred to either the Fast Track or Multi Track, where fees are much higher, the process is more complex (you'd really need a solicitor) and you could find yourself having to pay your opponents legal costs (solicitor £150/hr?).

This may fill some gaps:

http://tenancyanswers.ucoz.com/index/section_214_claims/0-45 and maybe this:

http://tenancyanswers.ucoz.com/index/court_information/0-53

*This tenant may be trouble. Do NOT assume that the tenancy is over just because the fixed term has ended. Whilst she has keys she may claim that she still has a tenancy (SPT) and if you re-let the room she may claim you have illegally evicted her. I suspect you would be found not-guilty, but the hassle and cost ain't worth it. If the tenant is NOT using the place as her primary residence you may be able to submit an N5 to the court tommorrow morning - what does the tenancy agreement say the penalty for non-payment of rent is?

When you protected the deposit in Aug, did YOU provide T with 'reqd info'?

If Court deems AST still in effect til 30 Sept (end of fixed term?) or later (SPT) then 3X deposit claim is poss for T by route Snorkerz describes. If you have not yet provided T with reqd info, I would do so by 30th Sept. It can be posted through the door of property, pref ind witnessed, or mailed First Class by 27th Sep. Get free Cert of Posting from counter clerk as evidence.

Courts have decided that protection AND providing reqd info to T are required elements. Just depositing with DPS is not sufficient.

All academic if AST no longer exists and Judge is properly informed, but belt & braces!