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Oct, 2014

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  1. #1
    Join Date
    Dec 2008
    Posts
    107

    Default Section 21 - Deposit not protected

    Hello, have been letting property for 12 years now and it appears I've fallen foul of the law when I need it to work in my favour.
    I commenced an AST shortly after the new deposit protection scheme became law and didn't "protect" the deposit I'd taken. The tenants have never questioned the issue but are now several months in arrears with rent and are refusing to respond to letters, etc. The fixed term of six months has expired and I want to issue a Section 21 Notice but understand from the rules am unable to due to this due to deposit not protected. Would it be advisable to "protect" the deposit at the same time as issuing the notice?
    Should I need the court to enforce the order, would a copy of a retrospective
    deposit protection receipt suffice as evidence for the judge?

  2. #2
    Join Date
    Dec 2008
    Posts
    1,141

    Default

    Hi

    Might be worth looking at the string entitled deposit protected late for more information on the various arguments and then maybe post any specific questions which still arent clear.

    I would definitely protect the deposit as soon as possible if I were you, it gives you at least a chance of fending off any counter claims from your tenants.

    Preston

  3. #3
    Join Date
    Jul 2006
    Posts
    685

    Default

    Also look at the Section 8 route and get this served with the S21 for belt & braces

    "a. Non Payment of Rent.

    For rent arrears, the landlord is relying on either one or a combination of grounds 8, 10 and 11.

    Ground 8: that the tenant owed at least two months' rent (in the case of a monthly tenancy) both when the landlord served notice that he wanted possession and still owes two months' rent at the date of the court hearing. If the rent is payable weekly, quarterly or yearly the ground requires that there are rent arrears of eight weeks, three months and six months respectively.
    Ground 10: that the tenant was behind with his rent when the landlord served notice that he wanted possession, and when he began court proceedings
    Ground 11: that, even if the tenant was not behind with his rent when the landlord started possession proceedings, he has been persistently behind with his rent.

    Ground 8 is a mandatory ground and thus the most powerful ground to use; the court must grant possession if this ground is proved. However, the drawback with relying on this ground alone is that the tenant can pay off part of the arrears shortly before the hearing, which means the ground can no longer be proved and thus the possession proceedings will have to be abandoned."

  4. #4
    Join Date
    Oct 2005
    Posts
    744

    Default

    1. Get the deposit protected asap - use the custodial scheme, as you don't have to answer many questions. AFAIK no tenant has succeeded in getting compensation when the deposit has been protected before hearing.
    2. Don't bother with the s21 route unless absolutely necessary - invariably it will take longer than s8 when defended.
    3. For repossessing your property, use s8, grounds 8, 10, and 11. The advantage with this is that you also get a money order (if you ask for it as part of your claim). Also, it is more vindictive (rightly so!) as an additional advantage is that most councils regard rent arrears as being 'intentionally homeless' so they won't be using you to get into social housing ahead of the queue.
    On some things I am very knowledgeable, on other things I am stupid. Trouble is, sometimes I discover that the former is the latter or vice versa, and I don't know this until later - maybe even much later. Because of the number of posts I have done, I am now a Senior Member. However, read anything I write with the above in mind.

  5. #5
    Join Date
    Dec 2008
    Posts
    1,141

    Default

    Quote Originally Posted by Esio Trot View Post
    1. AFAIK no tenant has succeeded in getting compensation when the deposit has been protected before hearing.

    Hi

    There have been, unfortunately, a number of unreported cases at county court level where this has indeed happened, although there are also a number of cases that have gone the other way too. What is the most likely or common outcome, I dont think anyone is quite sure at the moment, but the picture will become clearer over time and as and when cases are decided by the higher courts.


    Preston

  6. #6
    Join Date
    Feb 2005
    Location
    London
    Posts
    3,583

    Lightbulb

    Due to the fact you have not protected this deposit for (guessing) more than a year, I suggest that you simply give the deposit back right now. No point in hurriedly trying to protect it now, you're well beyond the 14 days that the law says you must protect once tenant has paid.

    Definitely issue a section 8 notice citing grounds 8, 10 and 11.

    Hope all your other deposits are protected.

    To those who say "protect deposit now", do you realise that the documents that you must give to your tenant tells them that the landlord has 14 days to do so?

  7. #7
    Join Date
    Dec 2008
    Posts
    1,141

    Default

    Quote Originally Posted by Poppy View Post

    To those who say "protect deposit now", do you realise that the documents that you must give to your tenant tells them that the landlord has 14 days to do so?
    Hi,

    Yes, you raise a very important point, which is covered in quite of lot of detail in the thread I mentioned earlier.

    My point is simply that decisions are going both ways, so if you protect you have a chance of fending off a successful action against you, though not a cast iron defence.

    Preston

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