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View Full Version : L trying to end AST but deposit never protected.



sarai
06-02-2010, 16:05 PM
My son became a tenanat of a private landlord (who is a large property developer) in March last year. Paid £600 deposit. Tenancy renewed after 6 months so signed again.
In Decemeber they told him they wanted to sell property and if he wanted to buy it he could. But he could not afford to.
At end of Feb he got a letter stating as he obviously did not want to buy he had to vacate by 1st March.
Firstly I believe he should have 2 months written notice and he has repeatedly asked where his deposit is held and the reply comes back that as per tenancy agreement he must have an inspection and they will decide what if any can be repaid. They obviously have not protected it.
Can he legally stay another month?
What is the best course of action regards starting court claim for immediate refund and 3x penalty that I have read about on gov website.
Thanks for any help.

mind the gap
06-02-2010, 16:11 PM
My son became a tenanat of a private landlord (who is a large property developer) in March last year. Paid £600 deposit. Tenancy renewed after 6 months so signed again.
In Decemeber they told him they wanted to sell property and if he wanted to buy it he could. But he could not afford to.
At end of Feb he got a letter stating as he obviously did not want to buy he had to vacate by 1st March.
Firstly I believe he should have 2 months written notice and he has repeatedly asked where his deposit is held and the reply comes back that as per tenancy agreement he must have an inspection and they will decide what if any can be repaid. They obviously have not protected it.
Can he legally stay another month?
What is the best course of action regards starting court claim for immediate refund and 3x penalty that I have read about on gov website.
Thanks for any help.
You are right, the LL should give him at least two months' written notice to end no sooner than the last day of the fixed term of his current contract. If the Ll has 'missed the boat' on this one, the s21 notice should give 2 full months notice ending on the last day of a rent payment period, as it will presumably take the tenancy beyond the fixed term and into a statutory periodic tenancy. Your son can legally stay until the expiry of a correctly-served s21 notice requiring possession, and in practice, a little longer as well (since, if your son does not vacate, LL will have to apply for a court order for possession and that takes another few weeks). When does your son's current contract end?

As far as the 3x penalty is concerned, your son should first check with the 3 main schemes whether a deposit is registered in his name or not. If not, he should write a Letter Before Action to his LL demanding the immediate return of the deposit in full and advising that failure to comply with this demand will lead to court action to recover the deposit and 3x its value by way of penalty for LL's non-protection under the Housing Act 2004.

This in itself usually leads either to the immediate return of the money, or to the LL rushing off and protecting it - either way, it is no longer in the LL's hands, which sounds like a good thing in your son's case.

westminster
06-02-2010, 17:13 PM
If the Ll has 'missed the boat' on this one, the s21 notice should give 2 full months notice ending on the last day of a rent payment period, as it will presumably take the tenancy beyond the fixed term and into a statutory periodic tenancy.
Just to clarify: If the s.21 is served during the fixed term (which presumably ends in March 2010, if son signed another 6 month agreement), then it doesn't have to expire at the end of a rental period, it just has to give at least two clear months and not expire before the end of the fixed term.

Also, any s.21 notice will be invalid if the deposit is not protected, so LL's notice is invalid on two fronts.

sarai
06-02-2010, 17:18 PM
Thanks. I am a little confused, is a s21 the written notice to quit?
We have checked a letter came on th 26th January telling him to vacate before 1st March, while my son was at my home recouperating from surgery. However he made contact with Ll on the 29th asking for a small extension of another month. This has been refused.

mind the gap
06-02-2010, 17:44 PM
Thanks. I am a little confused, is a s21 the written notice to quit?
We have checked a letter came on th 26th January telling him to vacate before 1st March, while my son was at my home recouperating from surgery. However he made contact with Ll on the 29th asking for a small extension of another month. This has been refused.

Yes, the section 21 notice is effectively a 'notice to quit', although its correctly called a Notice Requiring Possession. The LL is definitely out of order in demanding that your son ends his tenancy without two full months' notice, as explained above. Tell your son not to allow himself be bullied by this person.

It may be worth your son pointing out to his LL that if he (LL) persists in his demands without protecting his deposit and supplying him with the prescribed information relating to it, and without subsequently serving a correct s21 notice, he (the LL) risks being prosecuted for illegal eviction, which is a criminal offence.

westminster
06-02-2010, 18:04 PM
Thanks. I am a little confused, is a s21 the written notice to quit?
Not a notice to quit, exactly. It's a notice informing you that the landlord intends to seek possession after a certain date. It is the standard notice a landlord issues to end a tenancy - most tenants would move out at the end of their notice. But if they don't, then the landlord must apply to the court for a possession order - he'll have to show he issued a correct s.21 notice to the tenant before the court will give him a possession order. (There are other types of notice too, for things like not paying rent, but they don't apply to your son's situation).

Please note that the landlord cannot physically evict your son or change the locks or similar. This would be illegal eviction and carries heavy fines/possible prison sentence. The only way your son can be forced to leave is if the LL gets a possession order (after going through the above procedure) and the bailiff comes to enforce it.


We have checked a letter came on th 26th January telling him to vacate before 1st March, while my son was at my home recouperating from surgery. However he made contact with Ll on the 29th asking for a small extension of another month. This has been refused.
As mind the gap and I said above, the letter from the landlord isn't a valid notice. Firstly, it should say it's a s.21 notice; secondly, it should have given your son two months notice (which it doesn't); thirdly, even if the LL had got both of these things right, it still wouldn't be valid if the LL hasn't protected your son's deposit.

This is in the law about deposit protection, and is the other sanction for not protecting the deposit, in addition to the 3x deposit penalty.

So the situation is that your son doesn't need the LL's permission to stay on. His choices are:


wait until the landlord serves a valid notice (which means protecting the deposit first, AND providing your son with written details of the scheme it's held in and what the procedure is for disputes is, etc - which is known as the 'prescribed information') THEN serving a proper notice saying it's a s.21 and giving two months.

if he wants to stay on a bit after the fixed terms expires, give written notice to the landlord that he intends to leave on [date], so long as this complies with the terms of his contract, i.e. it may say tenant must give one or two months. This isn't any special kind of notice, just a letter. But it's very important to keep a copy and to get proof of posting, and keep the two things as evidence of the notice.


If the landlord makes any attempt to illegally evict your son, contact the police in the first instance. Second, contact the local council as they have the power to prosecute for illegal eviction.

westminster
06-02-2010, 18:12 PM
What is the best course of action regards starting court claim for immediate refund and 3x penalty that I have read about on gov website.
.
The government website makes it sound very straightforward. It isn't.

It's highly advisable to consult a solicitor with specialist knowledge of landlord & tenant law. This is because these claims are now meant to be issued on form N208, (not the standard N1 claim form), which means claims are allocated to the multi-track. Court fees for the multi-track are high, and you are also exposed to the defendant's legal costs if you lose the claim (there is no guarantee of winning if, say, the LL protects the deposit late, or returns it to your son).

Worst case scenario, you could spent £1,000 or more on court fees, and have to pay the LL's legal costs if you lose. That's why it's important to get proper legal advice before pursuing this route. You may be able to find a solicitor who will take on the case on a no-win-no-fee basis. Avoid any online companies with no legal credentials who claim to be able to handle these claims - there are cowboys about.

westminster
06-02-2010, 18:16 PM
If the LL withholds the deposit, the other option is to issue a regular claim just for return of the deposit - this can be done using Money Claim Online, costs are very low, and you don't need a solicitor.

I think that's everything!

sarai
06-02-2010, 21:22 PM
Thank you all for your help.
I will pass all this information on to my tomorrow. All my son wanted was time to find somewhere alse to live and return of his deposit in full as he has kept the property in very good condition.

sarai
07-02-2010, 15:52 PM
To all who advised me yesterday thank you. I now have sight of the letter my son received on 26th Jan.

Basically it says as they did a viewing and received an offer on the place they say, and I quote, 'therefore as landlord we must now give you written notice in order to terminate your contract which expires on 1st March. Therefore under section 196 of the law of property act 1925 we are serving you full written notice to vacate the property by 1st March'.

Any ideas of a good wording for me to use when I write back.

I wish to say that I am aware they have not served adequate notice but need the act it comes under and find a way of saying I know the bond is unprotected.
They have intimated that there will be none to refund upon inspection.
Thanks

westminster
07-02-2010, 16:59 PM
Moderator: please merge with OP's other thread.

Sarai: I forgot to ask you yesterday - is the rental property in England or Wales, and is rent below £2083.33 per month? Assuming the answer is yes*, tell your son to write as follows:


Dear Landlord,

Thank you for your letter dated xth January 2010. This is not a valid notice under section 21 of the Housing Act 1988, which requires that a minimum of two months notice must be given.

In addition, I refer you to sections 212 - 215 of the Housing Act 2004, and their provisions in respect of deposit protection. The sanctions for non-compliance include invalidity of any s.21 notice served.

Yours sincerely,


*If the answer is no, then different laws apply in Scotland, and to higher rents in England/Wales.

sarai
07-02-2010, 17:03 PM
Thanks. Yes it is in the England and £600 per month.
My son is frightened of doing this as he feels this man will turn nasty if he rocks the boat. I want therefore to be as careful as possible.

westminster
07-02-2010, 17:44 PM
Thanks. Yes it is in the England and £600 per month.
My son is frightened of doing this as he feels this man will turn nasty if he rocks the boat. I want therefore to be as careful as possible.

It is a serious offence to harass or illegally evict a tenant. All the landlord can legally do is follow the proper procedure for regaining possession. If he makes threats etc then contact the local council, as previously advised.

http://england.shelter.org.uk/get_advice/eviction/harassment_and_illegal_eviction

Moderator1
08-02-2010, 11:42 AM
Two separate threads by same member have been merged here. Do not cause problems by starting continuation threads; use the same one.