PDA

View Full Version : Deposit not protected and need tenant to go



heather.gibson
05-10-2011, 18:41 PM
My tenant has an assured shorthold tenancy lasting 12 months.

Towards the end of this period I gave them a new contract to sign to renew for another year.

A few weeks ago I had a dispute regarding access and I found this person very difficult to deal with. I asked them to leave at the end of the contract (old one) but they have have shown no evidence of doing so. On the last day of the existing contract.

I delivered an S21 form to their flat giving 2 months notice to quit and the date of issue was the last day of their existing tenancy. They refuse any access and have changed the locks.

I had not put their deposit in a protection scheme though I have no intention of keeping any of it unless it is owing through non payment of rent etc.

Having done some research I now see that the S21 may be invalid. So I am uncertain what may be the best step

(1) Should / Can I put the deposit in a protection scheme now, give them the details and then deliver a new S21 ?
(2) As I served the S21 in the old contract period is the new (concurrent) contract still valid?
(3) The new contract was signed by myself and given to them to sign but due to our dispute I never got it back so don't have a copy or know where I stand, they can deny it exists if it serves their purpose. If I issue an S21 now must it be dated for the end of this new contract period, i.e 12 months time?
(3) Can I serve an S8 notice on the basis that they are flatly refusing my written requests to enter the property for inspection / repair purposes ?

I appreciate now that I have always done things in quite an informal ( and I think fair) way , which has worked fine for 20+ years as a LL but with the current situation I am realising I have made things hard for myself - any further advice welcome. Thanks for any help

fridaypassion
05-10-2011, 19:51 PM
Register the deposit then resubmit your S21/S8.

Snorkerz
05-10-2011, 19:53 PM
Your s21 IS invalid.

Protect the deposit for free at www.depositprotection.com (http://www.depositprotection.com)
Serve upon the tenant the schemes 'prescribed information'.

Serve a new section 21 notice once you have proof that you have protected the deposit AND served the prescribed information but no earlier than the start of the new tenancy agreement. The section 21 notice will not expire until the end of the new tenancy.

Your tenants are unlikely to leave at the end of the s21 (they don't have to) so once it has expired, you can apply to the courts or possession.

If you would like, we can make sure you issue a valid s21 if you tell us:

When did/does the new tenancy agreement begin?
How long is it for / is there an end date?
Is rent paid monthly?

Tenant has no obligation to allow you access to the property. Whilst they have a valid tenancy they are paying you for exclusive use of the property. There is nothing o stop you serving a section 8 notice under ground 12 - but IMHO you'd be wasting your time and £175.

bhaal
05-10-2011, 20:00 PM
You should immediately contact the tenants and inform them that the offer of a new tenancy is revoked and they can no longer accept it. If you've already sent them a new tenancy agreement then they can accept your offer by signing it themselves and you won't be able to get possession for another 12 months.

Snorkerz
05-10-2011, 20:41 PM
You should immediately contact the tenants and inform them that the offer of a new tenancy is revoked and they can no longer accept it. If you've already sent them a new tenancy agreement then they can accept your offer by signing it themselves and you won't be able to get possession for another 12 months.Sadly, OP states his tenants have a copy of the new agreement signed by OP.

theartfullodger
05-10-2011, 22:19 PM
Think tenants have asked for advice on MSE.

Probably they are reading this thread also

heather.gibson
06-10-2011, 17:45 PM
Hi,
Many thanks for that. I had a look at the MSE site but could not find the thread. Could you give me more information so I can find it and read what my tenants take on all this is? Thanks again.

bhaal
06-10-2011, 22:24 PM
Sadly, OP states his tenants have a copy of the new agreement signed by OP.

I know, but this constitutes an offer which can be revoked by the offeree at any time prior to acceptance (ie before the tenants sign a copy of the agreement and send it back to the landlord).

Snorkerz
07-10-2011, 08:00 AM
I know, but this constitutes an offer which can be revoked by the offeree at any time prior to acceptance (ie before the tenants sign a copy of the agreement and send it back to the landlord).Interesting. Probably an academic issue though because all the tenant needs to do is sign their copy unwitnessed (already signed by OP) and claim it was signed before the offer was withdrawn. Am I undestanding that correctly?

heather.gibson
07-10-2011, 09:03 AM
Thanks again for your comments, I certainly have not had a copy back from the tenant so does this mean anything?

Also I served the tenant the s21 on the last day of the previous contract. Could this in anyway invalidate the new contract as it pre-dates the start of it ?

I have other properties and I have always renewed the contracts concurrently, beliving that is I didn't people could becoming sitting tenants. From what I have read on this site I should instead only issue an initial contract and the after that expires it becomes a periodic tenancy which would have similar terms as before but mean should I need to give notice I am not tied to any dates. Is that correct ?

Also if I do the above is there any point at which the situation changes - I have one tenant who has been there quite a few years , and if I want to make changes such as increasing the rent can that be done under a periodic tenancy ?

Thanks in advance for any help

Snorkerz
07-10-2011, 09:27 AM
If the s21 was served in the duration of the earlier contract (s21 1 b?) then it relates to that contract.

The current (disputed) contract would not appear to have an s21 hanging over it.

With regard to contracts. A statutory periodic tenancy automatically arises at the end of a fixed term contract. This has exactly the same terms and conditions as the preceeding AST with the exception of notice periods.
The tenant must give a minimum of 1 months notice to bring the tenancy to an end.
The landlord must give a minimum of 2 months notice before seeking possession.
Both the above must expire on the last day of the tenancy period. http://tenancyanswers.ucoz.com/index/ast_tenants_not_in_breach_of_contract/0-37

The statutory periodic tenancy can go on forever (subject to future legislation).

You can increase the rent on an SPT using section 13 of the 1988 Housing Act. http://tenancyanswers.ucoz.com/index/raising_the_rent/0-41

Lawcruncher
09-10-2011, 09:29 AM
Interesting. Probably an academic issue though because all the tenant needs to do is sign their copy unwitnessed (already signed by OP) and claim it was signed before the offer was withdrawn. Am I undestanding that correctly?

You need to distinguish between substantive law and questions of evidence. If the offer is withdrawn and the tenant subsequently signs and returns the agreement as a matter of law there will be no contract (assuming of course that one had not already been created orally).

Since the law does not require writing for a contract to create a tenancy for three years or less, difficulties can arise in establishing whether there is a contract and if so when it was made. As writing is not required it has to follow that there can be a contract when only one party has signed an agreement.

There are two possible situations involving written agreements:

1. The parties conclude a contract orally and an agreement is later signed which records the agreement.

2. No contract is concluded before an agreement is completed. (I use the word "completed" since signing a legal document does not necessarily indicate an intention to be bound by it immediately.)

The OP has placed herself in a difficult position because she has sent a signed agreement to the tenant. If the tenant produces it in court the OP will need to come up with a good argument as to why the agreement is not evidence that a new tenancy was agreed.

Lawcruncher
09-10-2011, 09:39 AM
Thanks again for your comments, I certainly have not had a copy back from the tenant so does this mean anything?

It depends - see my last post.


Also I served the tenant the s21 on the last day of the previous contract. Could this in anyway invalidate the new contract as it pre-dates the start of it ?

No.


I have other properties and I have always renewed the contracts concurrently, beliving that is I didn't people could becoming sitting tenants.

Not the case. See Snorkerz's last post.


From what I have read on this site I should instead only issue an initial contract and the after that expires it becomes a periodic tenancy which would have similar terms as before but mean should I need to give notice I am not tied to any dates. Is that correct ?

It is not matter of what is correct, but rather what suits the parties.


Also if I do the above is there any point at which the situation changes - I have one tenant who has been there quite a few years , and if I want to make changes such as increasing the rent can that be done under a periodic tenancy ?

Rent can be increased under a periodic tenancy either by agreement or by using the procedure set out in section 13 of the Housing Act 1988.