UK Landlord Forum / Life

Hope someone more experienced than myself could assist.

S21 issued in August23 as I urgently need to sell this property - tenant refuses to leave so have instructed solicitors re a possession order.

Tenant has now got legal aid and instructed solicitor who has declared my S21 to be invalid as although the letting agents protected the deposit correctly at the start of the tenancy later on in the tenancy I agreed to reduce the rent so they removed the deposit from the deposit protection scheme to make a partial refund to tenant and then re protected it but not within the prescribed 30 day window.

This error has now left me with the S21 being declared invalid.

As this is the letting agents error as they manage all the financial side of the tenancy would I be correct in assuming that they should stand the legal bills incurred because of this as well as the costs of reissuing a new tenancy agreement and a new S21 notice?

Any help would be appreciated

The explanation of what happened is unclear. Determine if a new Tenancy was issued when the deposit was unprotected. Basically, untangle what was done to determine the rules that applied at each stage.
For a start, you should not really be taking legal advice from the other side 
Also ask the agent their plan.

They should not conflate a Deposit Protection claim with a procedure for no fault eviction.

What matters is that the deposit legislation was complied with at the time the S21 notice was issued.

From what you said, IT WAS!  The fact that is was late is a separate legal matter.

You will be able to provide a Deposit Protection Certificate and a copy of the PI you or the Agent served as part of the N5b form.

If the Tenant wants to bring a deposit protection claim it is a totally different CPR (Part56), they must bring their own separate claim and pay for it, unless you agree a settlement of that issue.

It is a common delay tactic to suggest that the legislation was not complied with, but the amendments to the Housing Act 2004 that were brought in under the Deregulation Act 2015, show that legislation can be fully complied with or rectified even if they are late. 

What matters in eviction is that all was bright, shiny and rectified (if necessary) at the time the S21 notice was served.

You will inform the Tenant's Solicitor of their mistake and ask them on what legislation they are relying upon in making their assertion.  No need to give them links, just ask them to confirm the basis for their assertion (less is more).

If the Tenant continues along this line on their defence to your N5b (which itself will include you submitting the Deposit Protection paperwork as required by the claim form), then you will simply respond their assertion in their N11B.

I am assuming you fully complied with the service of the PI before the S21 notice was served.

The same amendments allow for a claim to be brought against both the Landlord and the Agent, I have managed to get Agents to pay, some of the larger Agents have terms in their Landlord engagement contract that say that they are not agreeing to fully comply with your legal obligation and only carry out the admin of the deposit protection.  Depending on the agreement being full service or not, I have challenged this and the cost of going to Court was avoided by negotiation. 

The same applies to the Tenant you can make offers to settle the Tenancy Deposit failure at 1x the deposit per Tenancy, there is good case law for that being the likely amount they would be awarded and so them declining that and going to Court may be deemed unreasonable conduct and affect their ability to obtain their legal costs.

Fire a short email back to the Tenant Solicitors asking them to clarify exactly what legislation they are relying upon, people rectify their mistakes all the time by serving a copy of the PI and then issuing a new S21.

Your Agent seems to have rectified before the Section 21 notice was issued. So whilst they may still have a potential Deposit Protection Claim (which you are keen to settle at the appropriate amount), that in itself does not prevent a Section 21 from being valid.

There may be other issues with the S21 and if there are they will probably tell you immediately once they realise that defence won't fly.

As for reducing the rent, remember no good deed goes unpunished!

Quote from: Valegreen on February 16, 2024, 05:08:58 PMHope someone more experienced than myself could assist.

S21 issued in August23 as I urgently need to sell this property - tenant refuses to leave so have instructed solicitors re a possession order.

Tenant has now got legal aid and instructed solicitor who has declared my S21 to be invalid as although the letting agents protected the deposit correctly at the start of the tenancy later on in the tenancy I agreed to reduce the rent so they removed the deposit from the deposit protection scheme to make a partial refund to tenant and then re protected it but not within the prescribed 30 day window.

This error has now left me with the S21 being declared invalid.

As this is the letting agents error as they manage all the financial side of the tenancy would I be correct in assuming that they should stand the legal bills incurred because of this as well as the costs of reissuing a new tenancy agreement and a new S21 notice?

Any help would be appreciated

The section 21 looks valid to me. There is no problem with a deposit being unprotected during a tenancy as long as it was protected correctly at the start and when the notice was served.

Aside:

Chuck Okoro - it would be a good idea to change your forum username. Your email address will get harvested and you'll receive a torrent of spam.

I am assuming that you lowered the rent and returned some deposit to help these tenants out  when they were having money troubles ? What a lovely way to repay you ! Do as advised above, you are in the right. By the way, trying to get any reimbursement from the LA will get you nowhere . You could write a bad review, but in my experience they  mostly have skin like rhino hide.