UK Landlord Forum / Life

Hi All (All statements are based on my understanding of the law I've read)

Back in 2009 my letting agent found a tenant and took a deposit. Back then it had to be protected in 14 days - it wasn't. It took about 40, Though the prescribed info was served in time, which is nice. Roll on 6 months and the 6-month contract is on its last day. I have prescribed information dated from that day and the signed form from the tenant protecting a deposit?!

Is that because they went from 6 months to periodic on that day? I see no movement of cash, so it looks like the deposit rolled over (same agent, same landlord, same tenant)

Anyway,  the tenant stays for years still on a periodic throughout

In 2012, my letting agent was bought out. They transferred the deposit - not sure if from one scheme to another, but DEFINITELY FROM ONE LETTING AGENT TO ANOTHER. At that point, a certificate is produced that looks bad for the second agent.....tenancy starts: in 2008, deposit protected 2012...but it's a transfer from one agency to another, so that's fine, I think. Presumably, the transfer from one to the other must take place within 30 days. And should we be sending more prescribed info at this stage?

We roll on to 2017. Tenant in situe, still on a rolling contract

Agency suggests new contract. I know no better. A brand new contract is signed...same landlords, same tenant, the same agency as when the deposit was transferred in 2012. At this point, new prescribed info is served in a timely fashion and it looks like the deposit rolls over - there's no new certificate or anything

This deposit has been on one hell of a journey. Just to confuse matters, the tenant caused willful damage to the property (but has been faultless for over a decade) and signed a form saying that when she leaves I can have the deposit back

With interest rates as they are, I am thinking of serving a s21, but believe that I will need Perrry Mason to get me out of this legal hole

Obviously, the 2008 screw-up is a screw-up and is subject to litigation - albeit it the 6-year clock has run out (is there such a thing?)

Is everything that happened after the initial screw-up 'fruit from the poison tree', or have I been saved at any point?

Can anyone suggest a way forward?

Thanks

What a mess!

I'm hoping the 2017 new tenancy and keeping the cash secured and serving the prescribed information rectifies the historic error.

There's hope and then there's the law....

Don't forget there are other new requirements that kicked in for the 2017 tenancy (How to Rent guide, EPC etc).

From the point of view of the Section 21 I think you might be OK, although walking a court who don't agree with that might be tricky. The Deregulation Act in 2015 reset the rules for any old deposits (because Superstrike had caused a lot of damage that needed to be fixed retrospectively) and I think has saved you.
The act adds s215B to Housing Act 2004, which says that provided the PI was given in the right format for tenancies after 6 April 2007, even if the deadline wasn't met, when a subsequent follow on tenancy was created, which happened when it went periodic, it is as if the initial requirements had been met, including meeting the deadline, even if that hadn't happened.

So your first two tenancies were OK (as I see it), and the new one was OK (assuming the other requirements were met).

The fly in the ointment is the change of ownership of the agency - I don't see why the deposit had to be "transferred" if your "old" agent was bought by the "new" agent. And if it was (for some reason) unless it was transferred into a new scheme, so that the PI already given was out of date, I don't see why new PI would be necessary.

On option that would fix the issue beyond doubt is to return the deposit to the tenant before serving notice.
The best way for you to "return" the deposit is to get the tenant to change their agreement to let you have the deposit when she leaves, to one where she agrees to let you have it now, as compensation for the damage she did.
I don't know how you've ended up with a promise for the deposit (which is probably not enforceable) instead of taking it when the loss you suffered actually happened.

As the tenant is about to be served a section 21 notice, they may decide not to be co-operative going forward and you may have to decide whether or not to just return the deposit or hope I'm right.
The best checker I know for a section 21 being valid is the flowchart on the Nearly Legal website, and you can cross check my suggestion there.

i think when the company was bought out, the new agent used a different protection scheme, hence the transfer and the need for new prescribed information

I am PRESUMING because the money was moved into a new scheme by the new agent....if they did so within the 30 days of having bought out the old agency, I might be safe

The rest of the requirements - EPC, gas, how to rent are met in the 2017 tenancy...not necessarily in the previous one

Does that put me in more of a hole. And am I right that the time for being sued has passed

I do appreciate your time. This baffles me, which is why I paid agents. 2 weeks of research I now know more than them, but they admit nothing

so, with the 2008 tenancy not necessarily compliant in the other areas, where do I stand with 2017 one being wholly compliant? was the new tenancy a reset?

All advice gratefully received

Hadn't even occurred to me that I could get the deposit back for damage during the tenancy?

If I can get her to claim it back (can you just claim back mid tenancy??) from DPS, and I didn't object, or I claimed and got her not to object, could we go 50/50 and everyone is happy....S 21 problem solved!!!!

Or is lifwe not that easy???

Am I right in thinking, if the deposit is surrendered to me or the tenant before I serve a S21, the the need for the service of timely prescribed info goes. And the need to have protected within 30 days goes? If so, that's the way I'm going

Additionally, re gas safety, I have 7 years worth of certificates 2016-2022, but nothing I can find before that. Can I serve this batch successfully before a S21

And re the how to rent, if serving prior to a S21 do I serve the one that was current when they made the tenancy agreement and the current one, or just one or the other

This stuff is mind numbing

You pay professionals and they leave you in a whole hole!

You have 3 threads, all posted on the same day, are you a law student trying to complete your assignments?

No. I'm a landlord who used a letting agent. And things were fine when they were fine. Then a recession comes and tenants start performing. Then we look at moving them on and discover the letting agent is of zero use, now and at any point in the past, clearing believing paperwork and compliance are optional

They've managed to make a range of errors across a range of tenancies. All new, unique and a complete headache

Quote from: picard999 on September 22, 2022, 06:31:14 PMAm I right in thinking, if the deposit is surrendered to me or the tenant before I serve a S21, the the need for the service of timely prescribed info goes. And the need to have protected within 30 days goes? If so, that's the way I'm going.

The deposit has to be returned to the tenant. That can be done by giving it to them or by them accepting its use to settle a debt (or pay rent).

In answer to your question in another post, once the deposit is protected at the start of the tenancy (or it's reset as settled by the 2015 legislation), there's actually no penalty for it becoming unprotected, until you want to serve a section 21 notice, at which point it has to be protected. And, while the agent deserves shooting a) for transferring the deposit in the first place and b) from cocking it up, I think you could argue that you received the deposit once and didn't receive it again just because the agent was sold - whether you'd get away with that, god knows.

QuoteAdditionally, re gas safety, I have 7 years worth of certificates 2016-2022, but nothing I can find before that. Can I serve this batch successfully before a S21

You should be able to - there's a lot of uncertainty about Gas Safety Certificates at the moment, because they're a new requirement and the first tranche of cases are coming to court where they matter. If you can find evidence that they're more likely to exist than not at the start of the tenancy (something on the inventory or a payment to someone) that's the one that seems to matter the most.
But the guidance was (and is) only to keep copies for two years, so not having copies is actually quite reasonable and to expect people to be able to produce them decades later is just mad.

QuoteAnd re the how to rent, if serving prior to a S21 do I serve the one that was current when they made the tenancy agreement and the current one, or just one or the other

It's the one that was current when the tenancy began, so the one in 2017. There's an archive of them on the nearly legal website.

QuoteThis stuff is mind numbing

Tell me about it.
Agents won't know this stuff, it's anorak level landlording.

JP

Really useful info, thanks.

On the one tenancy, I have taken the pragmatic approach and given the tenant back the deposit - its Christmas. Come early. I'm not having the legal rigmarole of tossing a coin and hoping a judge had breakfast

On the other one..OF COURSE it would be the How to Guide from when they moved in. Thank God I have a statement from the letting agent saying they served it before they moved in. When I did belt and braces prior to the S21, I sent the current one. Because I am a baffoon. Although, technically I got it right by accident as the original one was correctly served, so if doing belt and braces serving the up-to-date one is no bad idea. Although moving forward I have the full archive of them and will serve them all. I served a bundle on another tenant yesterday - think I gave them 9 how-to guides and an easy-read version! Sign here, please. Have a nice day

And now I hear from mid next year I have to licence as a landlord as part of a pilot scheme and each address will cost £700. And there will be more paperwork

What I have learned is dont think the experts are experts. Some of them are clueless. And its virtually impossible to cover an original cokcup

I do appreciate your time

Jp,

Whilst I'm benefiting from your knowledge, the last thing bringing me out in a sweat is....DPS custodial terms and conditions

I have little doubt these change every time the wind blows. I'd found that archive of how-to-rent guides and thought there would be something similar for DPS custodial terms and conditions....

I need those that were active on 07/01/2016 and 30/10/2017...Seems I've even stumped DPS themselves with this request!

I had thought a letting agent confirming they served terms and conditions so many years ago, really out to be able to magic up a copy of those terms, rather than pulling the latest version out of their....hat and relying on that. But perhaps, like GSCs these things are allowed to slide?

I know now that I could not be a letting agent!

Quote from: picard999 on September 25, 2022, 12:52:38 PMWhilst I'm benefiting from your knowledge, the last thing bringing me out in a sweat is....DPS custodial terms and conditions

I have little doubt these change every time the wind blows. I'd found that archive of how-to-rent guides and thought there would be something similar for DPS custodial terms and conditions....

You don't have to give the exact contemporary terms and conditions for the Prescribed Information.
Although someone's going to think that one up someday.

If you really want the terms and conditions as they were in 2016 and 2017, google "DPS custodial terms&conditions Apr2015 V22.0".

Quote from: picard999 on September 25, 2022, 12:52:38 PMI know now that I could not be a letting agent!

Actually, you know now that you could be a Letting Agent.

As could literally anyone you encountered randomly on the street... as no qualifications, training or experience is required. And that's possibly part of the reason the 'industry' is held in such disrepute.