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Sandi
25-01-2011, 08:55 AM
Hi All

Just wondered if any English letting agents can explain the practicalities of the tenancy deposit scheme so that I can plan ahead for the implementation of the Scottish tenancy deposit scheme.

e.g.

Who makes the decision on what can be deducted?

If you need to get a property cleaned can you go ahead and do this safe in the knowledge that it is a deductable expense?

In a case were there is a dispute how long is it generally before it is resolved and the deposit returned?

What fees are involved?

Any info would be greatly appreciated

jeffrey
25-01-2011, 10:07 AM
But the law is so different that E&W rules/practice will inevitably differ from those of Scotland.

theartfullodger
25-01-2011, 11:34 AM
Ask SaL -

http://www.scottishlandlords.com/
- they are quite involved with Scottish Government on this.. and their recent (yesterday) email to me said...


Tenancy Deposit Scheme

The Scottish Government has today published the Tenancy Deposit Schemes (Scotland) Regulations 2011. For further details click here http://www.legislation.gov.uk/sdsi/2011/9780111011850/contents

Earlier today SAL issued the following statement:

The Scottish Association of Landlords has long since expressed concern about how the proposed deposit scheme will be enforced and how it will help the most vulnerable of tenants. A properly enforced landlord registration scheme would be far more cost effective and successful in not only tackling bad landlords from illegally withholding tenant’s deposits, but by removing these landlords from operating in the sector altogether. Any new scheme needs to operate a fair and impartial dispute resolution mechanism and have the best interests of both tenants and landlords in mind.

Given the poor performance of Local Authorities in tackling rogue landlords through landlord registration, SAL questions how effective Councils will be in ensuring that landlords use a scheme and that tenant’s deposits are properly protected.


The Scottish Government released the following statement to SAL:
The regulations will require that all scheme proposals must demonstrate a robust financial model that is sustainable in a climate of low interest rates, without the need for financial subsidy from the Scottish Government. Approval will not be given unless Scottish Ministers are satisfied that any schemes proposed can operate on this basis. In order to create an environment that would make it attractive for the industry itself to develop custodial schemes, we need to ensure a sufficient number of available deposits.
To this end, the regulations have been drafted so that the duty to comply will apply to all new relevant tenancies and renewed tenancies on a date 6 months after the first scheme becomes operational. In addition, the duty to comply will also apply to all existing relevant tenancies. However, in recognition of the length of time some of these tenancies may have been in place, and the additional requirements on landlords, the timescale for compliance will be extended to the date 9 months after the first scheme becomes operational. This will allow more time for landlords, agents and tenants to adjust to the new legislative requirements.....'

In Summary:

Landlords and Agents will have to ensure that deposits held are handed over to a custodial scheme:

· 6 months after the first scheme opens its doors for business for all new and renewing tenancies, and;
· 9 months after the first scheme opens its doors for business for all existing tenancies


It is estimated that the first scheme will not be operational until at least the beginning of 2012.

The only schemes that will be approved will be custodial, whereby landlords will lodge the deposit with the scheme to ensure it is properly safeguarded. As a result of SAL campaigns, there will be no charge to landlords to lodge a tenant’s deposit with an approved scheme.

SAL has been on Radio Scotland today talking about this and will be quoted in the press tomorrow and will update members as the regulations go through the process of parliamentary scrutiny.

Me, I'll see what actually happens early 2012 before even worrying about it. These things have a habit of changing in detail before being implemented...

Sandi
25-01-2011, 12:25 PM
I received that e-mail as well and that is what's driving the post.

Whilst the law is different in Scotland I think apart from Scotland insisting that it's a custodial scheme then the scheme is pretty much the same and I just wondered if anyone in England could share their experience with me. :D

jeffrey
25-01-2011, 12:28 PM
I received that e-mail as well and that is what's driving the post.

Whilst the law is different in Scotland I think apart from Scotland insisting that it's a custodial scheme then the scheme is pretty much the same and I just wondered if anyone in England could share their experience with me.
However, the underlying legislation is different- as is the entire contractual relationship.

jta
25-01-2011, 17:34 PM
At least if the schemes are custodial it will do away with the 'My LA went bust, where's my deposit' scenarios.

jeffrey
26-01-2011, 10:15 AM
At least if the schemes are custodial it will do away with the 'My LA went bust, where's my deposit' scenarios.
...but only if Scottish law is the same as in E&W re tracing.

mind the gap
26-01-2011, 14:52 PM
OP - surely the principle underlying deposit protection is the same wherever it is : LLs are no longer allowed to hang onto Ts' deposit money without justification. The bottom line will be that if the T leaves a property in a worse condition, or damaged, compared with when he moved in, (fair wear and tear excepted), then the LL should be able to claim the cost of remedying the damage/cleaning from the deposit. If T leaves the places as he finds it, then the LL will have no claim on that money.

All this assumes that there is a detailed and accurate inventory and Schedule of Condition in place at the outset and that T has agreed it in writing/by signing.

theartfullodger
27-01-2011, 19:02 PM
Got an email today from another site.. referencing this..
http://www.landlordlawblog.co.uk/2011/01/27/landlord-law-podcast-interview-with-kevin-firth-dps-director/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+TheLandlordLawBlog+%28The+Lan dlord+Law+Blog%29
-the email included these comments attributed to Kevin Firth of DPS on the proposed Scottish Scheme....


It looks as if Scottish landlords are going to have to comply with tenancy deposit protection fairly soon as regulations have now been laid before the Scottish parliament......

I was alerted to this by Kevin Firth when I interviewed him for the Landlord Law Podcast (which is due to be published soon).

However here are a few interesting differences between the new Scottish (draft) regulations and the current English/Welsh ones.

* There will only be a custodial scheme. The regulations do not make provision for any insured based schemes (such as our TDS and My Deposits schemes)

* The landlord / agent will have 30 days to register the deposit rather than the 14 days here

* It looks as if the application of the regulations will be wider than just for ASTs (or the Scottish equivalent) as here, and will cover more tenancy types.

* Tenants will not be able to apply for the 3x sanction more than three months after the tenancy ends

* I can’t find any section preventing the landlord from obtaining possession (as in the English / Welsh system he can’t obtain possession under s21) until the deposit has been protected

* The sections regarding adjudication provide for a review, unlike the English/Welsh schemes where there is no review

It seems like the government has learned from the English / Welsh experience and is trying to make the regulations clearer.

Sandi
01-02-2011, 10:31 AM
Thanks for that I found an article with an arbitrators views that was quite interesting http://www.propertyhawk.co.uk/index.php?page=magazine&id=411

It looks like the balance of proof has shifted from landlord to tenant and that it will be very difficult to make deductions unless you have written proof.

As existing tenancies are also covered by the scheme we really need to act now to make sure that are systems are providing us with the relevant information to allow us to make legitimate deductions.

If anyone has any tips or advice as how best to achieve this that would be very much appreciated. I confirm we currently have leases, inventories and photos in place pre tenancy.