PDA

View Full Version : Effect of s.21 Notice if deposit is unprotected?



rebecca.483
03-02-2010, 04:51 AM
I am a first timer please be gentle with me!

I have tried to read some of the really useful information posted on these threads but just too many variables to work out for myself so I would be grateful if some one would take me under their wing a bit and steer me in the right direction. Here goes...

Bit of background

Have never met landlord deal with useless letting agents they charge me a management fee (HA!) Moved in April 09 agents seemed a bit lax but thought they would do at least the legal minimum and was nice to be left in peace.

July a letter hit the mat re morgage repossion immediately called everyone cab, council, useless agents even morgage company and solictors as you know they wouldn't tell much but got a little info out of the indepentant that came and knocked on OUR door!! long and short is that I was told all a mix up (and I'm the easter bunny) but after that I was distrusting and I realised didn't have tenacy agreement back from agents who had been going to get landlord to sign then send to us (we had signed and moved in in a rush you see) Anyway we managed to get that after like a month of asking as landlord still hadn't signed.
As I thought we were going to be repossed any moment I remembered I should have had a letter or similar re deposit and asked about deposit agents said landlord had protected as they gave him money and basically handed over responsiblity they said landlord would give them detail and they would let me know.
I waited and waited so reminded them of 14 days and they said all casually its ok cause you can get 3x amount back which I knew but was not the point. I decided they were morons and would sort out when I had the time.
Now suddenly recieved proof of service for notice requiring possession by section21 all becomes important again (lots happened inbetween we had a flood not our fault also a total fiasco with agents and I had a baby)

basically me, my partner, my 2 year old and new 12 week old baby want to know whos ass to sue as all 3 schemes have no record of deposit am waiting for the confirmation in writing only have verbal, I read in agreement that "tenant shall pay the deposit as specified in the "particlulars" to the landlords agent, as agent to the deposit such deposit money will be held in designated account etc" later it says landlord obligations he agrees to register deposit in 14 days etc.
I have read a lot about if he does register it late, ie. now, that it will be ok and in others that it wont, is it worth suing for the money it would be really useful for moving costs etc but how much hassel is it as have the new baby time is valuable too, whats the general opinion on likelyhood of sucess

also isn't section 21 notice invalid cause of all this? and not sure but what about the wierd date they have given, does it have to be from rent day or day or move in not just a random 2 month date?

sorry didn't mean to make so long I see why others posts are the same now,
any advice appricated alot

btw have now done a written request to agent and landlord for info on deposit.

havensRus
03-02-2010, 05:29 AM
Have never met landlord deal with useless letting agents they charge me a management fee (HA!)

Are you saying you pay a monthly fee to them as T? You should only be paying your rent and nothing else to them!!



basically me, my partner, my 2 year old and new 12 week old baby want to know whos ass to sue as all 3 schemes have no record of deposit am waiting for the confirmation in writing only have verbal,

btw have now done a written request to agent and landlord for info on deposit.


Did you give a timeframe/limit on getting a response?



I have read a lot about if he does register it late, ie. now, that it will be ok and in others that it wont, is it worth suing for the money it would be really useful for moving costs etc but how much hassel is it as have the new baby time is valuable too, whats the general opinion on likelyhood of sucess


Can't tell you how much hassle it is, as I don't know. Question to you is how much hassle you are prepared to go to to sue for 3x deposit. You can decide that after you received the LL's response to your letter requesting info. If you don't get a response back, then you should write a LBA and let LL/LA know you intend to sue them both.




also isn't section 21 notice invalid cause of all this? and not sure but what about the wierd date they have given, does it have to be from rent day or day or move in not just a random 2 month date?


If deposit not protected, then S21 is invalid.

What exact date did the tenancy start and what is the fixed term 6 or 12 months? if you are still in the fixed term, then its a straight 2 months, otherwise, the exact dates matter!

rebecca.483
03-02-2010, 05:42 AM
I pay £25+vat every 6 months to agents admin fee for management they call it

6 months is the contract that was up october 20th we moved in april 20th date on s21 is 26th march I was asking so I can see if possible to get till april 20th if we need to like if can't find anywhere new in budget (might save on canx cost for contracts with phone line etc)

7 days time frame found a template letter on a site

sounds like s21 will be invalid

I will let you know about responses as I get them
also I'm going to sound stupid but does lba stand for letter back again or am I way off?

havensRus
03-02-2010, 06:20 AM
I pay £25+vat every 6 months to agents admin fee for management they call it

That is not for you to pay. Is it a contract term? It is an unfair one in my view. The LL should be paying management fee, not T. You should be claiming that back from them or the LL, but stop paying it!!



6 months is the contract that was up october 20th we moved in april 20th date on s21 is 26th march I was asking so I can see if possible to get till april 20th if we need to like if can't find anywhere new in budget (might save on canx cost for contracts with phone line etc)

Tenancy is SPT=Statutory Periodic Tenancy. Your rent period runs from 20th of one month to 19th of the next. Therefore, LL should give S21(4)(a)notice, such notice to become effective on the 19th of a month, at least least two months after the date it was served on you. so if served today 03/02/10 or anytime up to 20/02/10, the effective date will be 19/04/10.

Lilkewise, if you give notice, you need to give at least one months notice to end on 19th of the month.



sounds like s21 will be invalid

Unless there is a proof of deposit protection, it is invalid. Write to the LL/LA and tell them that. And quote the relevant section of the statute:
Housing Act 2004, S215
(1) If a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when—

(a) the deposit is not being held in accordance with an authorised scheme, or

(b) the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.

(2) If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.



I will let you know about responses as I get them
also I'm going to sound stupid but does lba stand for letter back again or am I way off?

Letter Before Action. It is important to ensure you do that, to give them the opportunity to rectify the problem. If they fail to do so, then you can take action.

Good luck.

rebecca.483
03-02-2010, 06:40 AM
thanks I will redraft to include your legal quotes in the letter am going to hand deliver today.

I might save the point about the dates as I don't want to confuse them, but you would have thought they would know these things.

I don't think I will have to pay another fee as the next one would be on the 20th april it was written in the holding deposit /bond receipt - subject to contract that we signed. it calls it a renewal fee there but they didn't give us new contract we went on to the periodic tenancy.

Anyway like I said thanks you have been a real help

p_cas
03-02-2010, 07:04 AM
Given your posts above, I would strongly suggest that you go along to the Citizen's Advice Bureau and tell them what's happened and ask them to draft the letter for you.

rebecca.483
03-02-2010, 07:25 AM
have spoken with cab briefly on phone their time is like gold dust they said about writting the letter to ask as they are not responding to me when I ask verbily and said to say I had taken advise etc like I say i found a template i altered w...nus.org.uk/PageFiles/3080/Deposit_Recovery_Pack.pdf

rebecca.483
05-02-2010, 00:48 AM
lots happened landlord admitted to letting agent not protected deposit which i knew anyway.

letting agents saying nothing to do with them cant sue them as landlords responsiblity yet I handed my money to them and have never spoken seen my landlord.

I asked what had happened to the deposit I gave them They also showed me how they bill landlord at start of tenancy and it basically showed that out of my deposit and months rent in advance etc they take their fees then give landlord change say £50 and he has to protect deposit out of his money, then get this they say "otherwise we might not get paid our fees" I say so how the ***! was he going to put £600 in a deposit protection scheme, surely they are way way in the wrong negligent is a word that springs to mind.

looks like LL is up the proverbial creek with out paddle letting agent say he all but said he is broke so looks like wont be able to pay if claim for 3x off of him but he could be spinning a yarn so I figure worth a shot

have been advised that letting agents have no duty of care to me therefore deposit as have no contract with them tenacy agreement is signed by LL seems absolutley mad you think go through agent cause it is safer than dealing direct with LL as could be harder to enforce repairs sort problem etc
so can you claim 3x from agents? I saw a post about a case and they lost is it possible to claim against them as they would be the ones with money it looks like.

basically I see it as agents took my deposit and never gave it to LL used it to pay their fees so "stole" it I was told could go to ombudsman about them to get compensation possibly but not to do with deposit just to do with all the things they have done wrong like paying £25 for nothing and not giving us our contract for 4 months which I now see why they didn't want to sign on behalf of landlord as was told if they had then I could claim against them. they are sneeky.

I hope someone can advise on whether
1, if I can claim against LA
2, I was told to not pay last months rent as would be throwing good money after bad and claim against LL then when went to court this would be taken off what he would owe me

would just like to point out that I am not trying to be money grabbing but I feel after all then cost and hassell of phone calls, trips to office, worry and time spent thinking and researching that I ought to get something back as I have done nothing but try to be a good tenant and they should pay for breaking the law /stealing my money

bedlington83
05-02-2010, 07:28 AM
The LL should be paying management fee, not T.
The LL may very well be (as well)

dominic
05-02-2010, 13:41 PM
Note that under the s.212(9)(a) of the Housing Act 2004, which states:

"references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies"

the LA is liable as if he were the LL. So yes, you could issue proceedings against the agent if you have a right of action against the LL for non-compliance with TDS requirements.

rebecca.483
10-02-2010, 01:13 AM
after speaking to a few people I think I will name the agent as second defendant, as it seems it can't make things worse.
I have seen a few posts about x3 deposit claims being fast track claim rather than small claims is this the case?
any help gratefully received

rebecca.483
16-02-2010, 00:54 AM
could anyone point me in the right direction about claims ie fast track multi track small claims etc

I see it is possible to claim against LA now high court ruling unsure how much of the rest will apply to me as have not moved out offically until 20th March

rebecca.483
16-02-2010, 23:28 PM
I need to claim as landlord has not protected my deposit and we are moving out before he gets repossessed/sells or whatever.

I am a bit confused as have read conflicting info but is a claim for not protecting deposit allocated to small claims fast track or multi track?
and/or is there a link that might answer what to expect/do regarding relevent type of claim.

Also in my complex situ I technically have care of the property until 20th March although will be out before this date is there a benefit to handing in claim after 20th or is it better to do it asap?:confused:

westminster
17-02-2010, 13:05 PM
Moderator: please merge with OP's previous thread.

Rebecca: Better to claim during the tenancy. And as you know, you can claim against LL or agent - or even both.

Claims must be issued on form N208 and should be allocated to the multi-track. Be aware of the risks; court fees are high and you are exposed to the defendant's legal costs, even if you discontinue the claim. Therefore, it's advisable to obtain legal advice before issuing such a claim.

See http://blog.painsmith.co.uk/2009/05/21/proper-place-for-tds-claims/

Moderator1
21-02-2010, 19:13 PM
Two separate threads by same member have been merged here. Do not cause problems by starting continuation threads; use the same one.

rebecca.483
25-02-2010, 12:37 PM
landlord now trying to threaten me with court action as I paid rent to LA as asked by them to cover repairs instead of him its starting to get really messy.

I have another dilema now rent is due but I Know if I pay it it will either dissapear forever (into ll blackhole of debts) or he will now suddenly protect my rent as if deposit which would be so unfair to do now after having to practically do everything bar protect it for him.
what would you advise? community legal advice said don't pay he will have to counter claim for it.

You see really I want letting agents as I feel their working practices caused this situation and they have been unhelpful.

westminster
25-02-2010, 12:44 PM
landlord now trying to threaten me with court action as I paid rent to LA as asked by them to cover repairs instead of him its starting to get really messy.
Were you previously paying rent direct to LL?


I have another dilema now rent is due but I Know if I pay it it will either dissapear forever (into ll blackhole of debts) or he will now suddenly protect my rent as if deposit which would be so unfair to do now after having to practically do everything bar protect it for him.
I don't really understand the dilemma? If rent is due to LL, pay the rent.

rebecca.483
25-02-2010, 16:46 PM
sorry its taken so long to reply I wrote it hit post and "computer says no" happened, what I said was along the lines of...
Yes I have LL bank details
I haven't mentioned the amicable agreement we tried to come to regarding deposit ie me not paying rent and this being the deposit. but LL would not sign to agree.
and dilema was a poor choice of words I had a stroppy 2year old demanding my attention loudly waking up my 3 month old so sorry but what I ment was LA have said deposit not their problem as LL responsiblity as they have in writting. So am worried if court decides just LL responsiblity then will never see my deposit again as he seems to be in a blackhole of debt? (even LA say I should not accept a cheque on handover as it would bounce!) or the flip side is he will now use my rent to protect the deposit and that will mean all the stress and the efforts I have made over the last 6 months will be for nothing and there is no reprimand for law breakers and the LA working practises that I feel contributed to this directly will continue.

As community legal advice say its ok not to pay I was after either a confirmation of this advice or even that I should ask another solictor to double check, as this will be the first time I have broken the tenancy agreement and it goes against my personal sense of right and wrong but as every one else has broken tenancy agreement and acted so moraly wrong where exactly in law do I stand.

I would appricate your view as I have seen some of your posts and you seem to have a really good knowledge of the legislation.
I have had wonderful helpful LA and LL before and know that things can go well when issues arise, It is LA and LL like this that put Tenants in bad unessasary situations

westminster
25-02-2010, 20:53 PM
LA have said deposit not their problem as LL responsiblity as they have in writting. So am worried if court decides just LL responsiblity then will never see my deposit again as he seems to be in a blackhole of debt?
This does not mean you cannot claim against the agent for the 3x penalty. Both are equally liable under the statute. Yes, the agent may have a contract with the LL saying LL responsible, but that is a contract between them. So, let's say you claimed successfully against the agent; the agent could then potentially claim against the LL because of the contract between them.

However, in terms of claiming just for return of the deposit (no 3x penalty), then the LL is solely liable.


or the flip side is he will now use my rent to protect the deposit and that will mean all the stress and the efforts I have made over the last 6 months will be for nothing and there is no reprimand for law breakers and the LA working practises that I feel contributed to this directly will continue.
You must try to see the 3x penalty for what it is; a penalty for failing to protect the deposit, not compensation for general stress and hassle with the agent/LL.

Therefore it would not be reasonable to act in a way calculated to help ensure the deposit is not protected. And if you issue a claim, there is nothing to stop the defendant protecting the deposit late with the DPS anyway. This would probably defeat your claim because there was a recent High Court case on this issue, therefore binding on lower courts (unless or until the High Court case is overturned in an appeal).

I would not advise pursuing a deposit non-compliance claim without getting legal advice.


As community legal advice say its ok not to pay I was after either a confirmation of this advice or even that I should ask another solictor to double check...where exactly in law do I stand.
Do you mean not pay the last month's rent as a way of getting the deposit back? If so, doing this is not unusual, but legally it's still a breach of contract. I don't know the full details of your situation, or why exactly the LL is threatening legal action against you, but if the community legal advice people have told you to it's okay, then I would probably trust their advice.

rebecca.483
26-02-2010, 00:54 AM
I am going to ask a local solicitor as they can take a look at everything they need to, as you say it is hard to advise without whole picture.
I know 3x deposit is not compensation and is a fine as such but if hopefully it stops the letting agents continuing with their current way of taking money but not responsiblity, if they don't have to pay I don't think they will "learn the lesson".
I read about the first high court decision and as you said I also noted the fact that LL/LA can protect deposit last minute which in my view is unfair if as in this case there quite clearly is no intent to protect, if for valid reasons it was registered late or just even by ignorance of law that would be different and can see they should perhaps not be judged so harshly. It seems the unscrupulous LL/LA benefits from this latest decision, is your personal view similar do you think the appeal should be sucessful or am I reading too much into the ...or until. I am glad to hear there is an appeal although I don't know circs regarding why deposit paid late, is there any info anywhere on this yet or will it be a long while, I would be willing to go to higher courts with my case if I had to.

and the LL threatening legal action is silly quick explaination is he is trying it on to get me to back down as I paid rent for last 2 months to LA as they had to pay workmans bills that had fixed floor in bathroom after flood from malfunctioning toilet overflow that wouldn't stop or else he would have been taken to court by tradesman for unpaid bills. See silly and he must know it I am sure or else he must be more foolish than I thought.

sorry I tend to go on, thank you for your time and wisdom

westminster
26-02-2010, 11:58 AM
I read about the first high court decision and as you said I also noted the fact that LL/LA can protect deposit last minute which in my view is unfair if as in this case there quite clearly is no intent to protect, if for valid reasons it was registered late or just even by ignorance of law that would be different and can see they should perhaps not be judged so harshly. It seems the unscrupulous LL/LA benefits from this latest decision,
The trouble is, the penalty is the same whether the reason for late compliance is 'valid' or not. The court has no discretion to apply a reduced penalty taking into account the reason for late compliance. You also forget there is a second sanction; the LL cannot serve a s.21 notice until the deposit is protected, and this is unavoidable.


is your personal view similar do you think the appeal should be sucessful or am I reading too much into the ...or until.
I agree with the decision.


I am glad to hear there is an appeal although I don't know circs regarding why deposit paid late, is there any info anywhere on this yet or will it be a long while
It is not known whether there will be an appeal or not. You can find the full judgment of the High Court case in a link at the bottom of this blog post.

http://blog.painsmith.co.uk/2010/02/12/high-court-decision-on-tdp/

jeffrey
01-03-2010, 13:23 PM
The decision is accessible direct at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/217.html&query=title+(+Draycott+)+and+title+(+v+)+and+title +(+Hannells+)+and+title+(+Lettings+)+and+title+(+L td.+)&method=boolean.

westminster
01-03-2010, 13:26 PM
With any luck, someone else will provide a third link to the same thing.

jeffrey
01-03-2010, 13:31 PM
With any luck, someone else will provide a third link to the same thing.
Sorry- but a direct link to the case was not what you provided.

westminster
01-03-2010, 16:15 PM
Sorry- but a direct link to the case was not what you provided.
I am well aware of that, Jeffrey. But just as you continue to insist that a direct link to the judgment in Draycott -v- Hannells* is vastly superior to an indirect link, I will continue to maintain that the same link to the judgment in the context of a blog post which provides a summary of the case is just as, if not more, useful, because many laypeople - i.e. the majority of forum members - may find the formal judgment heavy-going and obscure in places.

You have previously suggested that, because the blog post was written by the solicitors acting for the defence, it is therefore biased; so please tell me which points of the summary you consider to be misleading and/or false, and/or why you consider the summary to be unhelpful to the layperson.

* Please may we assume we are both aware that this is not the full citation.

jeffrey
01-03-2010, 22:05 PM
Eh? I did not suggest that the blog was unhelpful- merely that it was neither official or unbiased.

rebecca.483
06-03-2010, 22:47 PM
its been a bit busy I haven't had internet at new house but update is have an appointment with solictors on weds to show them my paperwork so they can see full story and give their opinion on weight of my case.
I will keep checking the site with the decision on to see if anything further happens with case/appeal.

trill
07-03-2010, 18:47 PM
lots happened landlord admitted to letting agent not protected deposit which i knew anyway.

letting agents saying nothing to do with them cant sue them as landlords responsiblity yet I handed my money to them and have never spoken seen my landlord.

I asked what had happened to the deposit I gave them They also showed me how they bill landlord at start of tenancy and it basically showed that out of my deposit and months rent in advance etc they take their fees then give landlord change say £50 and he has to protect deposit out of his money, then get this they say "otherwise we might not get paid our fees" I say so how the ***! was he going to put £600 in a deposit protection scheme, surely they are way way in the wrong negligent is a word that springs to mind.

You paid your first month's rent and deposit to the LA. The LA should protect your deposit first and foremost. Despite many opportunities, they have failed to do so. As agents acting for the LL, that is their responsibility. Their excuses have nothing to do with the fact that your deposit is unprotected. They shouldn't be using it to pay theirselves.

Presumably your tenancy has now ended and there is no chance of retrospectivley protecting the deposit.

Can someone on the forum advise? Isn't there a procedure where the T can go to the Court directly? Getting legal advice is very important to clarify the issue, but how much is it going to cost in legal fees if the solicitor has to take the case to Court?

I wish you the best of luck in taking it further. It's a stressful time for you when you have your hands full with your youngsters. Hope it goes well.

trill
07-03-2010, 19:11 PM
consumeractiongroup.co.uk

/forum/residential-commercial-lettings/155645-tds-eligibility-implication-breach


There's a ton of information on the above link re tenancy issues. Might be worth a trawl through various posts. I would be inclined to summarise your situation and post a new thread there to hopefully get some advice before you go to your solicitor on wednesday.

;)

rebecca.483
10-03-2010, 02:39 AM
I did post on there as well at the beginning of this saga but the guys on their suggested here too.
have read loads of posts on both sites mind bending info to take in.
thanks for the boost, its nice to know you are not going mad when some one else can see your point too.
Fingers crossed for today the guy seemed confident about legal aid? but who knows it will just be nice to pass some weight over to him if poss.