Section 21 Help Please

[coppullcaveman1]

My stepdaughter took a 6 month AST in September last year, paid £500 deposit & advance rent.

 

The deposit was not protected by TDS. Tenancy period is now up and no new agreement has been signed.

 

Landlord has now served Section 21 .

 

I have learned that it is now a statutory periodic tenancy so the TDS rules barring Section 21 no longer apply.

 

Can she still take action against the landlord over not protecting the deposit and if so ...How does she go about it ?

[Planner]

I think you have heard wrong.

 

S.21 cannot be used until the deposit is protected. Therefore there is no requirement for your stepdaughter to move based on this notice.

 

Have a look at the 'stickys' at the top of the lettings forum page on TDS claims.

[coppullcaveman1]

Hi Planner I didnthear it wrong but the crux of the matter is now that the AST has effectively lapsed into a statutory periodic due to my stepdaughter not having a copy of the new AST she signed

 

This is where our problems lie at the moment.

 

I know there is some skullduggery going on as my stepdaughter did in fact sign a new 6 month AST but the landlord took it and promised to copy it for her as they only had one copy with them. She also asked for the Gas Safety Certificate and thats when the grief started. Landlord changing his mind about tenancy after signing but leaving us with no proof of new tenancy (hence stat periodic)

[Planner]

You said:

 

"I have learned that it is now a statutory periodic tenancy so the TDS rules barring Section 21 no longer apply"

 

As stated this is not correct. A valid s.21 notice cant be issued until the deposit is protected.

 

If your daughter doesnt have a copy of the newly signed AST and cant get hold of a copy then it might as well not exist, as you say.

[xoAmyox]

There is no difference in your rights on eviction between an AST and a periodic tenancy when the deposit has not been protected.

In either situation the section 21 notice is not enforceable and should be completely ignored. If you want to pursue the landlord for the deposit side of things, and ensure a good case then she shouldnt be wanting to sign a new AST as this would extend the tenancy for an additional 6 months or even longer.

In most cases tenants that try to enforce the deposit rules while living at the property do not succeed as the LL can protect the deposit at any time before a court case and (potentially) still get away with it.

The LL however, cannot protect the deposit after the tenancy has ended.

If the LL really want's your stepdaughter out (legally), then he'll need to protect the deposit, and then re-issue a section 21 notice after that.

However, you and your step daughter may want to consider if she wants to be living there at all with a LL that hasnt followed at least two legal obligations and a potentially unsafe boiler.

 

In regards to the gas safety certificate, this is a legal requirement. You should contact the private sector housing team, sometimes also known as housing enforcement and various similar names, at your local council. Also, contact the health and safety executive as they are the ones with the power to prosecute on this issue.

Edited May 18, 2010 by xoAmyox
spelling

[coppullcaveman1]

Since the initial tenancy agreement ended a new one has been signed, however my daughter did not receive a copy. At the time of signing and after she had signed ( we have letters from LL confirning agreement will be renewed on "date" and they did come and do it bringing only one copy which they said they would duplicate and return a copy to my daughter).

 

My daughter then insisted ( more or less demanded ) a copy of the Gas Safety Certificate. Since then they have had to put up with fortnightly inspections.... they came and inspected the property on 17th of this month and told daughter they were coming back on Friday to Inspect the house again.

 

Ok so LL issues Sec 21, then appies to the court for possession, what defence should we use ?

 

I am still concerned with the wording in the housing act as it refers to shorthold tenancy as opposed to stat periodic (unless I can prove a new agreement was signed)

[blitz]

You still have an assured short hold tenancy, there are essentially two types of AST, the first being a fixed term AST (i.e the first sixth months) if there is no renewal for a further fixed term then it forms a statutory periodic AST.

 

You cannot evict during a fixed term AST with a s21 on its own, so don't worry about the wording you as above you have an AST!

 

If it goes to court the simple defense is the deposit is not protected

 

--

With regards to inspections at the frequency they are being held constitute harassment as it interferes with the quiet enjoyment of the property, they have no automatic right to the property except in case of emergency. It will cause more friction but you are within your rights to refuse entry and inform them that you will not be allowing future entry, unauthorised entry is trespassing (even the landlord) and will be reported to the police.

 

I would report the missing Gas Safety Certificate to http://www.hse.gov.uk/contact/callback.htm (Health and Safety Executive).

Edited May 18, 2010 by blitz

[xoAmyox]

If the landlord applies for possession all you have to show is that the deposit isnt protected. Each of the schemes will confirm this via email. Do this asap to show it wasnt protected at the time the section 21 was issued.

 

I'm in this situation with my current stat periodic tenancy, and i've been advised, and had confirmed on here that the court would not grant a possession order (which the LL cant apply for until the full 2 months has passed anyway) if the deposit isnt protected.

 

Your step daughter also has the right to refuse the LL entry unless it is an emergency situation, I would refuse to permit the so called inspections.

[coppullcaveman1]

Thankyou , I am so annoyed with the way this LL has behaved . Is there anyway I can use the defence as a counter claim ( even though the claim for possession appears to be invalid)To try and get the deposit + 3 x as compensation for the hassle my Stepdaughter has had ?

Edited May 18, 2010 by coppullcaveman1
missed a bit

[Planner]

Thankyou , I am so annoyed with the way this LL has behaved . Is there anyway I can use the defence as a counter claim ( even though the claim for possession appears to be invalid)To try and get the deposit + 3 x as compensation for the hassle my Stepdaughter has had ?

 

I think it will eventually come down to the deposit being protected, otherwise theres only the s.8 route to end the tenancy, unless your daughter agrees to go for a heahlty payoff. Once the deposit is protected, case law indicates that the x3 compensation isnt due.

 

As a minimum, your step daughter should stay put until the deposit is protected or returned.

[coppullcaveman1]

Thanks Planner, I presume the deposit can be protected the day before the hearing with one of the deposit schemes. The other two seem to have stricter rules regarding late protection and one specifically excludes protection of deposits where legal action has started.

 

Is it possible to defend and counterclaim at the same time ?

 

If so what is the procedure for this. I really appreciate all your help

[Planner]

Thanks Planner, I presume the deposit can be protected the day before the hearing with one of the deposit schemes. The other two seem to have stricter rules regarding late protection and one specifically excludes protection of deposits where legal action has started.

 

Is it possible to defend and counterclaim at the same time ?

 

If so what is the procedure for this. I really appreciate all your help

 

As far as I am aware, and there are quite a few examples on here and wider forums, all of the deposit schemes allow late i.e. after the tenancy has ended/legal action started, protection of the deposit.

 

The procedure for claiming the x3 compensation is listed in some detail in the stickies. Toy need to use the N208 claim form (not N1/Money Claim online). It shoudlnt be possible for the LL to counterclaim, doesnt mean they wont try.

[coppullcaveman1]

Hi I have looked at the stickies on TDS ,I have read the t&c of the deposit schemes and one definitely specifically excludes where legal action has started.

I have been trying to find out about the procedure for defending and counter claiming the granting of a possession order on the date of the hearing as opposed to starting a claim for non-compliance independently.

 

I have heard and read of people being served extra "evidence" on the date of the hearing ( which would obviously prevent the LL complying outside the spirit of the law regarding TDS)