Section 21 Notice Served But Our Deposit is Unprotected + Repair Issues!

[lunarsea]

Hello,

 

I'm wondering if anyone could please assist me in a rather complicated tenancy dispute/issue I am having with my landlord?

 

Basically, the story goes like this:

 

My housemate and I moved into the property in June 2009. In September 2009, the estate agent company managing the property went bankrupt. Anyway, we received a letter from MyDeposits informing us that because the Agent is holding the deposit and that their membership has been cancelled with the Scheme, that our deposit would become unprotected on December 15 2009.

 

The landlord was also made aware of this as he received the same letter, and I asked him in December 09 if he could please reprotect our deposit and provide the information on the new protection. He said he'd just keep the deposit in his bank account until the tenancy was over so I informed him politely that it was his legal responsibility to protect it, and if he could please do so as soon as possible.

 

He said he would but I never heard back from him about it again, so I am pretty much assuming that the deposit is still unprotected as of today.

 

Things went along more or less smoothly after that until March of this year. At that time, the pipes underneath the kitchen sink started leaking heavily, and then overnight, the central heating stopped working in the property.

 

To make matters worse, some wooden decking in the garden literally broke beneath me when I was sitting outside on a garden chair - I had previously told the landlord that the whole decking appeared to be sinking (it doesn't seem to have been laid properly with any foundation underneath) and asked if he could have someone come over to inspect/repair it and he said he would, but again, nothing came of this either.

 

When I called up the landlord at 9AM to have the heating and pipes repaired ASAP (the decking didn't break until later), he would only arrange to have a certain plumber that he knew come in to do the repairs (he told me because he has some kind of "deal" with this plumber where he pays him whatever he wants).

 

Anyway, I said that was fine but as of 3PM I still hadn't heard back from the landlord or the plumber about the urgent repairs. I called him again and he said that he couldn't get a hold of the plumber so I asked if he could please either get a different one in or if we could call one and then send him the invoice after it had been repaired, as it was an emergency repair job that really couldn't wait more than 24 hours to be fixed.

 

He flat out refused to have any other plumber come in and said he wouldn't pay us back if we got one in ourselves, as he was only willing to have this one plumber come in and do the job.

 

Another hour later and I still hadn't heard anything back from him or this plumber and it was at this time that the decking broke beneath me. I called him again to let him know about this repair issue and that I still hadn't heard from the plumber, and he started getting quite aggressive/rude and said that there was no way he would send anyone over to fix the decking until, in his words, he had seen the damage that *we* had done to it (I explained to him that we hadn't done anything to damage it and that I had asked him months ago to have someone look at it because it looked to be sinking) and that we would have to wait for whenever the plumber contacted us to carry out the repairs, and that if we didn't like it, we could find somewhere else to live.

 

By this time it was too late for us to even get in an emergency plumber at our own expense to fix the heating and the sink, so I just left it for the day and hoped that the plumber would contact us the next day.

 

The plumber did come over the next night and repair the sink and got the heating to start working again (we went about 36 hours with a heavily leaking pipe and without any heating) but he told us that there was a faulty part in the boiler and he'd have to order in the part to repair it properly.

 

The heating stopped working again that night and the plumber wouldn't come back again nor would the landlord get anyone else again.

 

Long story short, as of today (30th April), the heating and the decking still have not been repaired. I wasted countless days waiting for the unreliable plumber to turn when he said he would but didn't, and the best he has done since (only after I had to tell the landlord that I would have no choice but contact the Council with a complaint if the heating remained unrepaired) was to take off the cover and leave the boiler exposed and show me which switch I need to pull to fix it, which I find a bit dangerous as I don't particularly enjoy reaching into an open and switched on boiler.

 

Maybe three weeks ago, he said he would call me when he had ordered and received the replacement part but I still haven't heard anything back.

 

On Friday the 15th, the landlord called me and told me that he wanted to come over that day to see the repairs that had been carried out to know how much to pay the plumber. I told him that it wasn't a good day and that I would contact him to let him know when he could come over.

 

I also told him that the plumbing repairs hadn't actually been finished as he knew, and that I was still waiting for someone to repair the outside decking because I didn't feel safe stepping on it anymore as the whole thing was quite unstable.

 

He rudely said again that he wouldn't have that fixed until he had seen what we had done to it and so I told him again that I would contact him when it was convenient for him to come over.

 

On Sunday the 17th, I sent him a text message telling him that it would have to wait until after that Easter weekend as we wouldn't be at home that week (my housemates grandmother had become very ill and we were up at the hospital for most of the day and would be doing so for all of that week).

 

Anyway, at 9PM that Sunday night he turned up and started banging on our door and looking through our letterbox.

 

We called my housemate's father to come over to see what he wanted and to tell him that he can't just turn up and start banging on our door (I did not want to open the door to him after his behaviour at out door and after how rude and aggressive he had been on the phone). The landlord said he wanted to come in there and then and that if we didn't arrange a time with him in the next day or two, he would just let himself in with his own key.

 

My housemate's father told him that he can't do that and he'd have to arrange a time that was good with us because we wouldn't be at home much that week owing to my housemate's dying grandmother.

 

Anyway, he left after that but then at Tuesday night at 6PM he came to the door unannounced and started banging on it yet again! I had enough at this point and called the police, and on their advice, I requested to him that he leave the property and if he did not, that I would have the police come over as he was now illegally harrassing us.

 

He promptly left, but the next day, he put a Section 21 Notice Requiring Posession through our letterbox that said we had to be vacated by the end of June.

 

Now, I definitely want to leave the property after all that has gone on, but there are a few problems:

 

1) For the time being, I am still living in a property that has no properly working central heating and a garden that is not really safe to go into because the decking feels like it will give at any second.

 

2) I am 99% sure that our deposit has not been re-protected and I definitely am not leaving until it has been safeguarded or returned because I know he will just try and keep it from us.

 

3) I want the repairs carried out ASAP not only because they are making our living conditions unsafe right now, but because I know that he will try to blame us and make us pay for them after we vacate the property if they haven't been fixed by then.

 

So I was wondering if anyone could please provide advice as to what to do now to get the repairs done and my deposit either returned to me or reprotected? As far as I'm aware, his Section 21 Notice Requiring Possession is void because of our unprotected deposit status but I don't know the best steps to take now.

 

Thank you very much in advance for your help and apologies for the very long message!

[rebel11]

Hi lun

 

Welcome to CAG

The guys will advise as soon as they are available.

 

In the meantime there might be some relevant info here:- http://england.shelter.org.uk/get_advice/paying_for_a_home

 

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

 

http://england.shelter.org.uk/get_advice/renting_and_leasehold/rights_and_responsibilities

[raydetinu]

well, section 21 notice is not valid if deposit not protected, so you can ignore that.

As for boiller ( gas I pressume ) legally it must be good order and not dangerous.

It should be tested every year by a qualified ( gas safe registered engineer ) and a copy given to yourselves.

Any subsequent repaires again should only done by a gas safe engineer and you should not let anybody who is not registered touch it ( your lifes at stake here ) no matter what the LL says.

Now as for defects, If LL wont repair or put right defects; your only comeback is to take him to court after you have left the property.

Are you on a current AST or now periodic?

If periodic you can give one months notice if you want, and as you want deposit back in full and suggest that as deposit not protected you may be able to sue for deposit + 3x.

However the legal bit on this is hat as long as they protect it before the tenancy ends they are ok and it is still to determined due to an appeal if it the extra needs to be after you have left but before going to court ( how you can protect a deposit for a property you are not in is beyond me ).

[Ed999]

My advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted.

 

You are posting WAY too much information!

 

 

The landlord was also made aware of this as he received the same letter, and I asked him in December 09 if he could please reprotect our deposit and provide the information on the new protection... He said he would but I never heard back from him about it again, so I am pretty much assuming that the deposit is still unprotected as of today.

 

You are NOT entitled to assume that. It is down to you to contact the TDS schemes - there are only three of them - and find out, as a fact, whether or not your deposit is actually protected.

 

 

Read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if you had a shorthold tenancy -

 

- Tenancy Deposit Scheme

 

- Tenancy Deposit Protection - First High Court Decision

 

- TDS eligibility, implication of breach and legal questions answered

 

 

While the deposit is not protected the Landlord cannot serve a valid section 21 notice of eviction.

 

If the section 21 notice is invalid the tenancy does NOT end unless you end it. As to when you can leave, this depends on the length of the fixed term, because a fixed term binds the tenant as much as the landlord (unless there is a 'break clause' in the agreement: i.e. an explicit right to end the tenancy during the fixed term, by giving notice).

 

If no fixed term was agreed, or it has ended, and there is simply a periodic tenancy with a period of one week or one month, the tenant can give one month's notice to end the periodic tenancy (but if the tenancy agreement requires a longer period of notice, the tenant must give the period of notice required by the agreement).

 

 

The case of Tiensia v Vision Enterprises means that if the Landlord protects or repays the deposit even as late as the day of the court hearing, or at any time before judgement (if later), then currently the court will not be able to award you the penalty of three times the amount of the deposit. That may be overturned by the High Court decision in Potts v Densley, when the long overdue reserved judgement in that case is finally given.

 

However, the effect can be to force the landlord to return the entire deposit to you, without any deductions, thus resolving the dispute over disrepair; though the landlord could put the deposit into a TDS scheme instead, and continue to argue for deductions for disrepair.

 

 

The Act expressly states that the parties to the tenancy cannot agree not to protect the deposit. So it's futile for the landlord to raise this defence - but many still try to!

 

 

Also read the FAQ about what deductions the landlord can lawfully make from the deposit -

 

- Unfair deposit deductions

 

 

Read this FAQ - Disrepairs in privately rented accommodation

 

If there was disrepair, the tenant might be entitled in law to sue the landlord for damages - i.e. compensation.

 

 

Where you paid a rent deposit to the landlord or his agent at the start of the tenancy, you probably won't get it back; so if the landlord is holding the equivalent of one month's rent your best tactic is to not pay the final month's rent, i.e. to let him take it out of the deposit.

Edited May 1, 2011 by Ed999

[raydetinu]

I was under the impression that the the LL/ agent had to tell you within 14 days of the tenancy that the deposit is protected and where and with the refernce no.

you should not have to check, but nothing wrong in asking ror the details from the LL, if he then does not tell you then something is wrong!

 

Section 213(5) of the Housing Act 2004 requires that the tenant is provided with the details of the scheme and the information prescribed by the Housing (Tenancy Deposits) (Prescribed Information) Order 2007. Section 213(6)(b) requires that this information be provided within 14 days.

Thats the rule but LL,s dont follow it and hence the court cases!

t

[Ed999]

I was under the impression that the the LL/ agent had to tell you within 14 days of the tenancy that the deposit is protected and where and with the refernce no.

 

I think the problem in this particular case is that the deposit was protected, originally. So the landlord or his agent would have done all this.

 

But the o/p is confused as to what occured when the Scheme administrator wrongfully released the deposit to the landlord without the tenant's permission, whilst the tenancy still existed. And I must say, the o/p has a point! And might even have a valid claim against the Scheme administrator, for breach of statutory duty, if all else fails.

 

But for now, his immediate problem is finding out whether the deposit is properly protected or not, at this present moment.

[raydetinu]

Thats what I mean, it is the LL responsibility to protect and he should of done so after he got it back from previous scheme (or sent it back to them!) Then informed tennant!

as you say op can check, phone call or online.

[blackcatgirl]

I am "Potts" in the Potts vs Densley case... just a quick heads up that the appeal court judgment should be handed down before the end of today.

[raydetinu]

I am "Potts" in the Potts vs Densley case... just a quick heads up that the appeal court judgment should be handed down before the end of today

 

Cant Wait!!!!!!

 

Let us know asap

[blackcatgirl]

I am "Potts" in the Potts vs Densley case... just a quick heads up that the appeal court judgment should be handed down before the end of today.

 

Sadly it is the worst outcome imaginable ... the judgment has been posted up on the web.

 

I lost... and no costs awarded.

 

So basically it cost me £8K as a tenant to go through the court system to get a court order to get my money back out of the DPS where it was placed a month after the end of the tenancy and a month after I filed the court case DPS couldnt deal with the deposit issues - becaues of the court case being filed! Catch 22. Judgment full of innaccuracies too. Hey ho. Will let you know my solicitor and barristers view on it in due course.

 

From what I can see, LL now no longer have to protect ANY deposit money... only the day or so before any court trial date... and the tenant is liable for costs as then there is no breach of the HA. Insanity.

[raydetinu]

:-x:xSad day for justice and you of course; does not make any sense at all!

Begs the question of why it is in the legislation of the HA then!

That just leaves us with the bit that a LL cannot issue a section 21 without the deposit being protected or get an eviction notice.!