UK Landlord Forum / Life

Hi all,

Some advice please. I have AST and used a large established letting agent. I have proof that the letting agent has protected the tenant's deposit and I also have a copy of the certificate saying this too, and it was all done within 30 days. Despite trying though, I cannot find any evidence that the tenant was informed by the letting agent. We are considering a section 21 soon as we may sell, but I know the tenant will look for any technicality to claim the section 21 is void. If the tenant says that they were not informed of the deposit protection, even though I can prove that it was protected and the tenancy agreement also said it will be protected, would they have a case to refuse to leave? Would it be standard procedure for the TDS company to contact the tenant to let them know that the deposit had been protected?

Thanks in advance

The requirement isn't just that it be protected and that the tenant knows it was protected. Within 30 days, the deposit have to be protected AND the prescribed information have to be given by the landlord or their agent to the tenant. If you used an agent, ask them what evidence they have that the PI was given.

Thanks for your reply. I have asked the letting agency and they've not given me a straight answer, I suspect it didn't happen. If that's the case, does that mean that I am powerless to get my property back if the tenant refused to leave on that basis? What happens if I wait till the end of the tenancy agreement, can I legally get my property back then or do you still need a section 21 for that too, in which case I could be faced with the same issue?

If the deposit was protected on time (are you sure? really sure?), then you can serve the prescribed information late, before the s21 notice. You'll still be liable for any potential deposit protection penalty though.

Yes, I have a copy of the certificate and all the dates and details are fine, it's just the confirmation to the tenant that's missing. But good to know I can still serve the s21. So if I did get claimed against for that, what do you think my chances are of counter claiming the letting agent for failing to follow the correct process?

You can't counterclaim against your agent when they won't be the one suing you for the deposit. 

It may be possible to join the agent as defendant so that they're the one whose the penalty are awarded against. Alternatively, you may sue the agent seperately to recover your loss from the agent's breach of contract with you.

All these assuming you have contract with the agent whereby they agreed to process the deposit in accordance with the law on your behalf.

Surely if you "posted" the information all that time back, that would cover you for your duty of care?

I mean, if the tenant opened the letter and binned it, or the letter was lost in the mail, who really can say you didn't do your duty of care? Seems almost impossible to prove either way and certainly gives you that tick in the box required to serve the S21.

A person can't prove a negative, so it'll be up to you the landlord to prove that you did serve that information whether in response to a tenant's defence to a s21 or a claim for deposit protection penalty. A suggestion (intended or not) to lie on a court claim form thus committing the offence of contempt of court is probably not the best of idea.

Quote from: KTC on February 24, 2020, 05:52:18 PM
A person can't prove a negative, so it'll be up to you the landlord to prove that you did serve that information whether in response to a tenant's defence to a s21 or a claim for deposit protection penalty. A suggestion (intended or not) to lie on a court claim form thus committing the offence of contempt of court is probably not the best of idea.

So does this mean the only way to inform a tenant their deposit is protected is by email or recorded delivery?

Seems harsh to exclude if a landlord prints out and physically gives confirmation to the tenant, or shows them confirmation, or does indeed post them the confirmation.

Another question - when the deposit is made with the relevant organisation, would they not send confirmation by post and/or email to the tenant also? I took for granted that they would do this (especially if an email address is provided).