Plz Help! Section 8 & 21 served but disrepair and unprotected deposit!

[cologoa]

Please can someone help me with the current situation I'm having as a tenant. To summarise:

 

1) Our deposit is currently NOT protected. It was originally protected and held by Agent through MyDeposits scheme but the agent went bankrupt and the deposit disappeared and became unprotected.

 

MyDeposits informed LL and us of this via letter AND I asked him via letter (and over phone) to please reprotect and give us information within the same month it happened (about a year and a half ago). He never reprotected (I have checked with all three schemes this month).

 

2) Reported quite serious repair issues to landlord on phone back in March. LL still hasn't fixed them to this day and didn't seem like he intended to from the start.

 

3) LL called up one Sunday and demanded to enter property that day to inspect (after accusing us of causing the repair damages!) - told him that it wasn't a good time that day but he showed up same night banging on our door, looking through our letterbox and demanding to come in. Eventually left after we didn't answer the door. LL showed up again announced two nights later banging on door again. I called the police this time due to harassment and he left quickly after that.

 

4) The next day he served us Section 21 notice through the door (even though deposit isn't protected).

 

5) After this we stopped paying rent due to unprotected deposit and disrepairs. Have still been trying to get him to do repairs - sent him a letter at the start of this month outlining all repair issues and asking to arrange a time to carry them out otherwise I will contact Environmental Health.

 

He denied receiving the letter according to his new Agent so I sent it again the other day by first class mail with certificate of posting this time to both his address and his managing agent (who acknowledged receiving the letter and said would pass it on to him).

 

6) He served Section 8 as we are now 2 months in arrears (after I had sent the first letter) and I now have about a week to clear rent arrears before his solicitors said they would start proceedings.

 

What I would like to know is this:

 

1) How do you put a counterclaim value on disrepairs? If he starts a claim against us, I will counterclaim for both disrepairs and unprotected deposit but how do you assign a value to the former?

 

2) Should I inform him again of my request for deposit reprotection or is it enough that I have asked him once via mail (and numerous times on the phone) and that he was informed by MyDeposits of unprotection, and should I just put it in my counterclaim with 3x deposit penalty with no further notice? Ideally I would like the deposit return + 3x penalty to offset the rent arrears, but do I have any obligation to request reprotection yet again?

 

3) If I put 3x deposit unprotection as part of counterclaim and then he protects it before the hearing date, am I still entitled to 3x amount? If he does protect it before hearing date but then I clear two months arrears, can he still proceed with eviction or will it be void?

 

What I want to know basically is what the best way to act now to ensure that either my deposit is protected and the repairs are carried out (and then I will pay arrears) OR that we don't get evicted because the deposit return and penalty (and disrepair award) will offset the current arrears.

 

If anyone can advise the best course of action, I would be very appreciative.

 

Thanks

[raydetinu]

You should NEVER withhold rent! as a section 8 can be issued as a notice of for repossesion for being more than 8 weeks in arrears. Still needs a court order to evict tho.

A section 21 notice is not valid if deposit noy protected.

You can sue landlord for disrepair and unsatisfactory conditions once tenancy ends.

It seems that LL can protect deposit up until any trial date and the 3x is abit of lottery, some do some dont and it will cost you dearly if you loose ( county court not small claims )

Best to pay arrears and negotiate the the points you want fixed.

[cologoa]

Thx for the reply. I understand that withholding rent was not the best way to go but I did not know what other action to take - they hadn't carried out vital repairs for months, were harassing us at our door and then tried to evict us without even protecting our deposit. As I said, if they protect my deposit and carry out the repairs, I intend to pay the arrears but I was anticipating having to pay for the repairs myself if they did not complete them.

 

Also, they have not carried out a gas safety check since we moved in (2 years ago). I don't even think they've done one on the current gas oven cooker because the one that was here when we moved in was faulty and they replaced it with another one soon after we started our tenancy. What action can I take over their failiure to obtain regular gas safety records?

 

So what value do I put on the disrepairs if this goes to court? If anyone could please answer my questions in my initial post, I would be most grateful

[Steve__M]

Roughly, what is the disrepair.

 

As you reported the problem in March it seems that you have not paid your April or May rent.

 

The question you may want to ask is why are you still wanting to live there if the LL has given you the "option" to leave (by issuing a Section 8 notice).

 

For the 3x deposit rule one of the recent cases pointed out that while the landlord could avoid the 3x penalty by protecting the deposit prior to the case, the tenant ought to be awarded costs because the LL has still broken the law by protecting the deposit after the 14-day deadline.

[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.

 

 

Tenancy Deposit Scheme

 

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, if you were granted a shorthold tenancy -

 

- Tenancy Deposit Scheme

 

- Tenancy Deposit Protection - First High Court Decision

 

- TDS eligibility, implication of breach and legal questions answered

 

 

The Court of Appeal decided in the case of Tiensia v Vision Enterprises 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), the court will not be able to award the penalty of three times the amount of the deposit.

 

This was NOT overturned by the High Court decision in Potts v Densley. Read the full transcript of the Judgement, in that link, as it will give you some idea of the Court's approach to this type of case.

 

The High Court in Potts v Densley was not bound by the Court of Appeal's earlier decision in Tiensia, because in Tiensia the landlord had protected the deposit at a time when the tenancy still existed; but the High Court in Potts nevertheless rejected the tenant's argument that the Act requires the landlord to protect the deposit before the tenancy ends [at paragraph 55 in the Judgement].

 

In Potts, the tenant might still have won, if she had raised the related point that the landlord had failed to provide her with the prescribed information pursuant to section 213(5). But she failed to do so, thus she lost the case.

 

 

Suing for the penalty, or merely threatening to do so, might cause the landlord to return the entire deposit to you, without any deductions, thus resolving a dispute over disrepair; although the landlord could, alternatively, put the deposit into a TDS scheme instead, and then 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!

 

While the deposit is not protected, any section 21 notice given to the tenant is invalid, so will not end the tenancy. But a section 8 notice can validly be given.

 

 

As a result of Potts, it is probable that a claim for failure to protect the deposit can be made whether or not the tenancy has ended [see paragraphs 51 to 53 in the Judgement]. Previously, it was unclear whether you could sue while the tenancy is still in existence; while at least one judge had rejected a claim on the basis that after the tenancy ends the tenant is no longer the tenant and therefore cannot apply!

 

 

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 not to pay the final month's rent, when the tenancy ends, i.e. to let him take it out of the deposit.

 

 

Disrepair

 

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

 

Read this FAQ - Disrepairs in privately rented accommodation

 

That FAQ explains the procedure that you MUST comply with if you propose to use the rent to pay for remedying the disrepair.

 

You will obtain tradesmen's quotes or estimates for the cost of remedying the disrepair. In general, a single quote is useless; you must obtain a minimum of two competitive quotes for each job.

 

 

Beware of agreeing to pay for any item which is the landlord's responsibility to pay for. A shorthold tenant can be evicted on 2 months notice at any time, once the tenancy has been running for 4 months; so it never makes sense to pay for improvements to the premises.

Edited May 20, 2011 by Ed999

[cologoa]

Thanks for the posts.

 

The problems that were reported two months ago that haven't been fixed are

- Central heating not working properly (and the plumber who never finished the job has left the internal of the boiler open and told me I need to reach into the boiler whilst it is on to fiddle with the faulty switch to get the heating working whenever it stops!).

- Broken and sinking decking in the garden that has been caused, I believe, because there was never any foundation laid underneath the wood in the first place. Some of the wood broke beneath me whilst I was sitting outside causing me to fall and hurt myself and the whole structure is quite unstable everywhere.

 

And I reported some other repairs at the beginning of May, the most important being that the two sets of downstairs lights have blown completely and another light downstairs now only works erratically and flickers all the time so I'm concerned the wiring isn't entirely safe in the house.

 

The landlord isn't answering me back and I fear it's because he's stalling in order to press ahead with the Section 8 proceedings.

 

What I still need to know is: what value can you put on the disrepairs? How do you assign how much these specific disrepairs are worth in monetary terms if the issue goes to court?

[Ed999]

For the 3x deposit rule one of the recent cases pointed out that while the landlord could avoid the 3x penalty by protecting the deposit prior to the case, the tenant ought to be awarded costs because the LL has still broken the law by protecting the deposit after the 14-day deadline.

 

 

But Potts v Densley establishes that there is no 14 day deadline!

 

It is also authority for the proposition that no costs are awarded where the parties are unrepresented; a point which is largely irrelevent, since few cases exceed the £5,000 claim limit for the small claims division of the county court, in which costs cannot be awarded.

[raydetinu]

OK regarding the central heating boiler and no certificate; Contact council and spaek to Environmental health ( Dangerous ) They can enforce LL to test and repair or Disconnect.

Maintenace can only be done by Gas Safe registered operatives, so was the chap sent around before certified, did you see his card; make sure you check that anybody sorting it out is on the register ( your life is at stake here )

Failing decking is health and safety problem and if you are injured you could sue him for damages, however now you know there is a problem, you should not use it and take steps to prevent others such as children.

Electrical Safety is dangerous and you can also report that to the Council.

Ther is a duty of care for the LL to keep the electrical wiring and system in a satisfactry state for use and it is recommended that it is checked prior to him letting the property out by a suitably qualified person ( NICC etc ) however there is no statutory requirement other than his duty of care. Again you could sue if you are electrocuted or have damages from fault ( fire etc ) Sounds dodgy to me, because your contents insurance may be invalidated if you knew there was a fault and not rectified!

Suggest you write to LL sayimng you will take action with council and pay the rent if you want to stay there!

What you ask for in compensation is difficult but could cover loss of amenity ( boiler and decking )anxiety over gas and electrical problems, personal safety etc.

[Ed999]

What I still need to know is: what value can you put on the disrepairs? How do you assign how much these specific disrepairs are worth in monetary terms if the issue goes to court?

 

 

You will need to obtain tradesmen's quotes or estimates for the cost of remedying the disrepair. In general, a single quote is useless; you must obtain a minimum of two competitive quotes for each job.

[cologoa]

Thx for all the replies. I sent a letter off to the LL again and contacted Environmental Health & I'm waiting to hear back from them.

 

Also just got a letter from LL's solicitors claiming, amongst other things, that the LL has always wanted to carry out the repairs in a timely manner (yeah right!!) and that he wasn't even aware of most of the repairs!!

 

Hopefully this has given him the kick up the backside to carry out repairs - I'll keep updating the thread as I doubt it'll be that straight forward AND I still need to think about how to get my deposit back!