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colin_c
11-12-2011, 19:42 PM
Hi all

I have served a section 21 notice on my tenant but on reading the tennancy agreement, I find that the agent has not lodged the deposit with a deposit protection scheme but is holding it themselves.

Am I right in assuming that if the tenant just goes ahead and follows the notice then I have no problem, the problem arises if I try to get a court order for re-posession? What is the best way to resolve this? I am guessing that the agent will not be particularly helpful as they are at the end of our agreement albeit I have not formally advised them of this.

Thanks for looking, this whole situation has arisen because of a bad agent and tenant, I do not know whether one of both are bad payers and neither are particularly desireable in hindsight. I am using the S21 to get the property back and start again after I have done some refurbishment.

Snorkerz
11-12-2011, 19:52 PM
The agent may keep the deposit if it is protected by DPS or My|Deposits.

If the deposit isn't protected but tenant just leaves - fine.

You are right that you will not be able to use the s21 in court (if deposit unprotected) - the court application specifically asks for proof of deposit protection.

Be aware that you may presently be breaking the law and (although unlikely) you could face considerable penalties. The deposit situation is due to be tightened up considerably in the next few months when the Localism Bill comes into effect.

colin_c
11-12-2011, 20:31 PM
Thanks for the reply

I guess that I need to check with the agent re. the protected status, The clause in the tenancy agreement says " the deposit is the sum of xxxxx to be held by the landlords agent yyyy as stakeholders" No further deatail.

Snorkerz
11-12-2011, 20:52 PM
When was the last tenancy agreement signed?

It doesn't sound like it will be the TDS as iirc you have to include their info in the tenancy agreement. Maybe 'My Deposits' but TDS tend to be prefered by agents (possibly cheaper than MD, I'm not sure).

colin_c
11-12-2011, 21:16 PM
Last tenancy ageement is dated 30th Jan 2010

Just scanned through the agreement again and no mention of deposit protection anywhere.

BtW I am assuming from your earier post that even though it is the agent who has not protected the deposit it is I who is liable. Or have i misread the situation?

Snorkerz
11-12-2011, 22:16 PM
Last tenancy ageement is dated 30th Jan 2010

Just scanned through the agreement again and no mention of deposit protection anywhere.

BtW I am assuming from your earier post that even though it is the agent who has not protected the deposit it is I who is liable. Or have i misread the situation?Sadly, it is you who is liable - it's a bit like if you slip on a grape at Tesco, Tesco are liable, not the person who put the grape on the floor.

mariner
11-12-2011, 23:00 PM
Suggest OP opens an account with DPS in own name and require LA to transfer Ts deposit to this account if not protected in an approved scheme.
OP then provides T with 'reqd info' for the deposit account.
This suggestion also protects LL as LAs have a habit lately of disappearing with deposits.
The Localism Act may help in future as I think there is a requirement for LAs to ring-ence any deposits held.

colin_c
12-12-2011, 19:52 PM
Sadly, it is you who is liable - it's a bit like if you slip on a grape at Tesco, Tesco are liable, not the person who put the grape on the floor.

I see what you are saying but I would of thought that one of the reasons for employing an agent is for them to know the rules. But we are, of course, talking about the law here not common sense.

colin_c
12-12-2011, 19:53 PM
Suggest OP opens an account with DPS in own name and require LA to transfer Ts deposit to this account if not protected in an approved scheme.
OP then provides T with 'reqd info' for the deposit account.
This suggestion also protects LL as LAs have a habit lately of disappearing with deposits.
The Localism Act may help in future as I think there is a requirement for LAs to ring-ence any deposits held.

Thanks for the advice, interestingly we are talking with a potential new agent who are already very much ring fencing deposits etc.