Query about TDS eligibility after 1st Oct 2010 AST change, implications of breach to comply by LL

[Bernard97]

My query is whether my landlord is obliged to bring (6 week tenancy) deposit in TDS. If so how that should it be administered and what implications if he won't? How will I know he has?

NB. very recently he has indicated that he wishes to take back house (probably sell it) but hasn't served notice yet.

 

Background:

Sep 2007: 2 year private tenancy agreement with private landlord (rental £42k pa, promptly payed monthly)

Sep 2007: 6wk deposit paid into acct of landlord. Landlord did not wished to pay for and therefore no inventarisation was made.

Since Sep 2009: tenancy has been rolling over.

 

While my contract was not an Assured Shorthold Tenancy, I understand (from estate agency) that from 1st October it should be eligible as rent is considerably below £100k pa.

Would the fact that contract is rolling over exclude it?

 

If we find a new home, do we need to give notice and assuming so, what would be notice period? one month?

 

Given LL has been dragging his feed for past 3 years about repairs, spending any money on maintenance (it took 2 yrs to repair leaks and other repairs), I am concerned that he will withhold a considerable part of the deposit (neighbours claim that he unreasonably did so with tenants before us), whart steps should I take to ensure full return of deposit. It should be noted that we have looked immaculately after this house (as if our own). There is is just wear and tear (carpets) and cracks in paint which are structural.

 

In advance thanks for any advice or suggestions.

[MrShed]

To my knowledge, the 1st Oct change makes the tenancy Assured, not Assured Shorthold.

 

Unless a new Assured Shorthold tenancy is provided, then no I dont see any eligibility.

[Planner]

To my knowledge, the 1st Oct change makes the tenancy Assured, not Assured Shorthold.

 

Unless a new Assured Shorthold tenancy is provided, then no I dont see any eligibility.

 

If the common law tenancy was entred in to prior to 28 February 1997 then it will become an Assured Tenancy in October 2010. As the tenancy of this poster was signed 2007, it will most definatley become a Assured Shorthold Tenancy (AST) assuming all the other conditions to make it such (Schedule 1 Housing Act 1988 ) are met.

 

The posts tenancy will most likley become a statutory periodic AST with all the rights and responsibilities (including TDS) that this entails.

[MrShed]

Doh. Good point well made.

 

In that case then yes I suppose technically they are required to place in a scheme.

[Bernard97]

Thanks Planner. Afraid though the more I grasp of these issues it seems the legal position with respect to deposit protection for existing tennacies is quite ambivalent. From estateagenttoday.co.uk website I read there is chaos at CLG over tenancy deposit chnages (I can't post link as I am new poster to website). To Quote: "A spokesman for CLG said: “The Housing Act 2004 refers to deposits taken ‘in connection with a shorthold tenancy’ so it could be argued that landlords would not have to protect the deposit if the tenancy was not an assured shorthold when the deposit was taken."

 

My situation has since progressed and we have decided to move on from the house and Landlord and I have given notice though the Landlord claims he only received my email on the day I paid my next months rent and intends to sting me for 2 months. (After expiry of the fixed term contract in 2009, our tenancy had become Statutory Periodic Tenancy).

 

I have now several queries?

1. How do I find out whether my existing deposit should have been protected and how should I inform the landlord?

2. Now that the LL disputes the notice period, he doesn't want to arrange exit inspection and discuss return of deposit. How do I formally force him to accept tenancy is over? We will be moving about a week before the end of the 1st month notce period. Do I send him keys back?

3. When we accepted the tenancy, the LL did not want to pay for an Inventory Check. What will be my legal position with respect to my exit?

Bottom line, LL has my money (6 wks of rent), is as we understand possibly financially constrained as both selling market and rental market in my area have suddenly gone very weak, and will do whatever it costs to avoid paying us back the deposit.

Advice from anyone with insight in these matters would be much appreciated,

Thanks

B

[Bernard97]

cancelled

Edited October 18, 2010 by Bernard97
accidentally posted query twice

[Planner]

 

I have now several queries?

1. How do I find out whether my existing deposit should have been protected and how should I inform the landlord?

2. Now that the LL disputes the notice period, he doesn't want to arrange exit inspection and discuss return of deposit. How do I formally force him to accept tenancy is over? We will be moving about a week before the end of the 1st month notce period. Do I send him keys back?

3. When we accepted the tenancy, the LL did not want to pay for an Inventory Check. What will be my legal position with respect to my exit?

 

To be honest I dont think that 'Estate Agent Today' (who?!) is the best source of inpartial information, Turkeys dont vote for christmas after all!

 

1) Court would be the only sure way! A good second best would be to ring the three TDS schemes and ask?

 

2) You should never ever serve something as important as notice via email. They dates are not rent payment dates but period of the tenancy dates (which may be different). Your one months notice should end on the same date in the month that your original fixed term came to an end. Failing that, as you have served via email, Im not sure what argument you have and you might just have to suck up the extra month and do it propaly next time.

 

3) You mean theres no inventory at all or just no 'professional' one? If its the former then it will make it much more difficult for you LL to make deductions. If its the later than it will be less difficult for your LL to make deductions.

[MrShed]

Unless it states to the contrary in the tenancy agreement, email is absolutely a valid medium in which to give notice.

[Bernard97]

Thanks for response.

ad 1. Court seems to me the option when all others have failed? I now hear from one of the Deposit Schemes that existing Statutary Periodic Tenancies may not change is ASTs.

ad 2. My case has extra aspect in that LL informed us that we would have to look for new house as he had to take property back (financial reasons). Two weeks later he said that he might be able to offer a longer tenancy but at considerable higher rent. Meanwhile we found something (and in conversation I mentoned that we had some possible alternatives). He then again changed position by offering a 1 yr contract without rent increase.

We served notice in email one day before rent payment date and confimed it also via SMS text. The next day he claimed not to have received the email but only the text (unlikely he didn't get both as he uses Blackberry) but was willing to offer us a 2 year contract without rent increase. From the moment we declined he turned nasty claiming a. we should used other email address (I used for the notice the only email address we have used in past 3 years) and b. said that we needed 2 month notice and not (yet) willing to discuss the details of our end of tenancy. We subsequently sent him by registered mail a letter confirming our giving notice and enclosed a copy of email correspondence.

In summary, we only started looking for alternative accomodation after he sent us an email informing us that he needed house back. His action triggered the motion. (One can imagine how unsettling the process is with family with young school going kids)

Ad 3. No Inventory Check-IN was done (neither professional not even a walk around with LL or agent on his behalf - nothing bc as he put it, it would cost money, it was unnecessary as he knew the house and we could get only one if we paid for it! (house is unfurnished). We have looked well after the house and I would expect no deductions from deposit but know for fact that previous tenants were stung and he used a very considerable amount of their deposit to refurbish a few rooms (done very basically).

Hope the above clarifies my position. Much appreciated if you or others have further thoughts given our specific case? thanks B

Edited October 19, 2010 by Bernard97
correct some grammar and typo's