UK Landlord Forum / Life

Myself & my partner provided notice on our property with our contract due to expire on 23rd May 2024.
We are actually moving out on the 10th May 2024 but the landlord did not want to accept our early surrender proposal which is not a problem and we will be paying the full months rent up until 23rd May.
We have two issues with our landlord at present:
1) We have requested the landlord waits until the 13th May to conduct viewings at the property, at which time he can have unrestricted access for viewings. We do not want any viewings prior to this. We both work full time and do not get home until 6pm, in the evenings we are packing our property. We cannot have the landlord show around prospective tenants without us being available as we have 2 dogs in the property. The landlord is not happy with the stance we are taking and is getting very agitated with us saying we are being unreasonable. Who is right in this instance, should I be booking some time off work so I can take the dogs out whilst he does viewings? (we are reluctant to be lenient due to problem 2 below).
2) Our landlord has not placed our deposit with any of the DPs companies. The deposit was placed with 1 of them but only for 4 days until it was removed and the company were informed the tenancy had fallen through - we are aware of our rights in relation to this and will be acting on them but it has made us very apprehensive that he will try to hold our deposit, the property is in a better condition than when we moved in, we have repainted all of the walls (in their original colours and with our landlords permission) And undertaken some repair work that fell under his remit as he was working abroad (Again with his permission but he has not yet refunded us for these works).

My main point of this post is, am I being unreasonable not allowing viewings until I have moved out (but within the period of me still paying for the property?)

Quote from: Blak3y on May 02, 2024, 06:31:59 PMThe landlord is not happy with the stance we are taking and is getting very agitated with us saying we are being unreasonable. Who is right in this instance

What does your the tenancy agreement say about access for viewings prior to end of tenancy?

As an example, the OpenRent agreement we had with our tenants included this:

QuoteObligations of the Tenant
...
The Tenant agrees:
...
9.42. To permit the Landlord, and any superior landlord, or the Landlord's employees/agents at all reasonable
times after giving the Tenant at least 24 hours' notice (except in an emergency):
- to enter the Premises to inspect the same and the Landlord's furniture and effects therein (if any) and to
carry out any works of maintenance or repair to the Premises or elsewhere which the Landlord may
consider necessary. If the Tenant fails to allow access and such failure causes the Landlord to incur
costs, the Tenant shall be liable for all reasonable losses resulting as a consequence.
- to enter and view the Premises with any prospective future Tenants or purchasers during the last 60 days
of the tenancy.

There's no viewing clause in our tenancy. It only states our notice clause which is 1 month which we have followed.

No, you don't have to allow viewings. The landlord has no right to enter without your consent for that purpose. So, no, you don't have to take any time off work.

And, if your tenancy has a fixed term that expires on 23rd May (and doesn't have anything to automatically extend it), you could probably have moved out without any notice.

The only action you can take relating to your deposit not being protected only arises if there were tenancies created after the protection had ended.

I don' t think you are being at all unreasonable. No way would I allow anyone into my home with only the dogs present. The dogs could be scared and bite ( in which case if you have permitted the visit you could be sued and your dogs removed by police)  I was at a talk given by an ex-  cop on this very subject last month. Also, they might leave the door open and the dogs could run off.

There is so much demand in most areas that I doubt he will need much time to get someone signed up. 

I don' t understand why the landlord said the tenancy had fallen through. What was that all about?  If he still kept the deposit he has surely broken the law JPK?   

Quote from: heavykarma on May 03, 2024, 12:58:40 PMIf he still kept the deposit he has surely broken the law JPK?

Yes, he has.
But, due to some historically unhelpful wording, not in a way that allows a penalty claim.

The penalty is only available for very specific breaches of the deposit regulations (no idea why) and a deposit that starts off protected and then isn't doesn't have a financial penalty available. Which I think is one of the reasons the deposit now has to be protected for a valid s21 notice, to cover that gap.

But it's always been a weird issue with the legislation (because it would have been easier not to limit the penalty to only specific issues).

If there's a new tenancy while the deposit isn't protected, that's a new breach with a penalty again.

I wonder if this landlord knew that ? I learn something new all the time on here!

I don't agree with you on this JPK, I wonder if you would be prepared to elaborate on the legal basis for your opinion on this?

Quote from: jpkeates on May 03, 2024, 02:55:11 PM

Quote from: heavykarma on May 03, 2024, 12:58:40 PMIf he still kept the deposit he has surely broken the law JPK?

Yes, he has.
But, due to some historically unhelpful wording, not in a way that allows a penalty claim.

The penalty is only available for very specific breaches of the deposit regulations (no idea why) and a deposit that starts off protected and then isn't doesn't have a financial penalty available. Which I think is one of the reasons the deposit now has to be protected for a valid s21 notice, to cover that gap.

But it's always been a weird issue with the legislation (because it would have been easier not to limit the penalty to only specific issues).

If there's a new tenancy while the deposit isn't protected, that's a new breach with a penalty again.

Quote from: David on May 10, 2024, 08:34:17 AMI don't agree with you on this JPK, I wonder if you would be prepared to elaborate on the legal basis for your opinion on this

Happy to.

A penalty is available for three reasons. The first two [s214(1)a] are that the landlord (or whoever) hasn't complied with Housing Act 2004, s213(3) or (6). (3) is to comply with the initial requirements of a scheme within 30 days and s(6) relates to providing the Prescribed Information.

The third reason [s214(1)b]is that "that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme."

Unless the landlord notifies the tenant that their deposit is in a particular scheme (not will be, or should be) and it isn't, and the tenant doesn't check or ask for confirmation in some way, (b)'s not made out either.

Having re-read post #1, I may have over-egged it a bit, because I hadn't properly considered how "the company were informed the tenancy had fallen through" might have been communicated to the tenant.

That's my reasoning, anyway. Always happy to be disagreed with, though. Collective thinking is best.

I am in agreement with you on what gives rise to a claim and there is a plethora of case law, not to mention the updates to the Legislation by the Deregulation Act 2015.

I have labelled them as {A} {B} {C} in special brackets in your quote to make things simpler.

{C} is very rare because the schemes themselves send out an SMS, if this bounces they send an email and if that bounces they send a letter to the property.  However, when preparing a claim, not only should one show the results of the claim but have an email telling the provider they were never served any PI, can't find the scheme using the web search and can they please confirm that no protection was in place for the duration of their occupancy.  This is the backbone of the claim.

The legislation does not say a Tenant has to make themselves aware, or that they should be aware, all of the obligations are on the Landlord.  Whilst one can use evidence that shows they were aware the scheme was protected and even in a particular scheme, it is not enough in itself.

What needs to be provided is prescribed

https://www.legislation.gov.uk/uksi/2007/797/article/2/made


{B}Is always going to be about evidence of a negative, so it comes down to credibility of the parties, emails between the parties and their replies, for example an email by the Tenant when a S21 is issued saying they have never had any information about where their deposit is being held and can they please confirm it is protected and if so where.  If there is not a strong rebuttal of this in a reply, or there is a reply that conveniently ignores the request, then it supports the Claimant.

What is unhelpful in the legislation is that it does not include the reference number and that is has this very vague wording of substantially the same as, with the word "leaflet".

The legislation leans on the terms of the schemes themselves and they are not consistent, for example some provide a leaflet and they refer the Tenant to the Leaflet which often leads to a claimant saying they were not served with the leaflet either.  Some schemes have vastly improved this, they populate the form but fail to instruct the Landlord on the importance of signing the notice and enclosing the said leaflet.

{A} When it comes to the protection and the PI the original legislation is not the key factor.  You will be aware of the impact of the Superstrike case law which led to huge panic

https://www.bailii.org/ew/cases/EWCA/Civ/2013/669.html

This was corrected in the Deregulation Act (2015) but we need to not only look at the legislation but the intentions of the legislators which is clearly shown on Hansards.

They did not want to get rid of everything in Superstrike.

So the wording of S215B in simple terms says that the legislation must have been complied with throughout the occupancy and must CONTINUE to be held in the same scheme. Otherwise sanctions will arise.

If a Landlord protects the deposit late then sanctions still apply the first Tenancy but not for any subsequent tenancy as long as it remains protected in the same scheme for the duration of the deposit being held for the performance of the contract. 

(f)when the new tenancy comes into being, the deposit continues to be held in connection with the new tenancy, in accordance with the same authorised scheme as when the requirements of section 213(5) and (6)(a) were last complied with by the landlord in relation to the deposit.


In this case

The written evidence the deposit was removed and the scheme and the lies that were told to the scheme would in my opinion lead to a maximum sanction aware for each Tenancy.  My advice to the OP would be to do a Subject Access Request to the Scheme to ask them to provide any and all information relating to them, including what was provided by the Landlord, any emails or phone calls that may contain their personal information.

This may provide further evidence, for example why was the Tenant not asked to confirm that the Tenancy did not go ahead,  in some cases the Landlord provides a fake email address, it is the dumbest thing in the world, some even provide a fake number or worse still they provide the number of a PAYG SIM they control.  The SAR should get to the bottom of this, if the correct information was provided then the OP should (after any claim) file a formal complaint with the scheme asking why they were not asked.  If the Landlord did provide false information to the scheme this will be very dimly viewed by the Court. 

As always I strongly suggest any deposit protection claim is made after the Tenant has left and got their deposit back (and settlement out of Court is preferable), if there are any issues on the condition of the property then that exacerbates the claim, because the Tenant has been denied a free ADR scheme.  It undermines the whole purpose of the legislation, Landlords using deposits as redecoration funds, claiming wear and tear as damages or inventing damages.  Any Landlord making such claims must give the Tenant a chance to mitigate their loss.

Some claim firms are owned by insurance firms, they are only interested in low hanging fruit, but others live for the fight and will use the claim to generate huge costs, then having achieved the billable hours they try to persuade the Tenant to accept a 1x claim.

There have been three or so cases in the Higher Courts which have brought conflicting ways of calculating the sanctions but they are fully entitled to do this under other case law.

So what I disagreed with was when you said

"But, due to some historically unhelpful wording, not in a way that allows a penalty claim."


I see nothing that prevents a claim, in fact if the what has been stated is correct I see what seems to be a deliberate attempt to avoid the obligations of the legislation.

Quote from: jpkeates on May 10, 2024, 09:27:40 AM

Quote from: David on May 10, 2024, 08:34:17 AMI don't agree with you on this JPK, I wonder if you would be prepared to elaborate on the legal basis for your opinion on this

Happy to.

A penalty is available for three reasons.

The first two [s214(1)a] are that the landlord (or whoever) hasn't complied with Housing Act 2004, s213(3) or (6).

{A} (3) is to comply with the initial requirements of a scheme within 30 days and

{B}s(6) relates to providing the Prescribed Information.

{C} The third reason [s214(1)b]is that "that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme."

Unless the landlord notifies the tenant that their deposit is in a particular scheme (not will be, or should be) and it isn't,

and the tenant doesn't check or ask for confirmation in some way, (b)'s not made out either.



Having re-read post #1, I may have over-egged it a bit, because I hadn't properly considered how "the company were informed the tenancy had fallen through" might have been communicated to the tenant.

That's my reasoning, anyway. Always happy to be disagreed with, though. Collective thinking is best.

The issue is that the wording of the legislation doesn't support what you want it to.

The only possible breach with a penalty that could apply here is that the tenant "has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme."

In order for that to be the case, the landlord has to notify the tenant of the authorised scheme and the tenant has to have been unable to obtain confirmation from the scheme administrator. Both are necessary. The intent of parliament is interesting, but it's academic (it might matter if there was some kind of appeal or it went to the Supreme Court). The wording in this case is pretty clear and, in my view, unhelpful.

Well we can agree to disagree

"Our landlord has NOT placed our deposit with any of the DPs companies."

https://www.legislation.gov.uk/ukpga/2004/34/section/213


"The deposit was placed with 1 of them but only for 4 days until it was removed and the company were informed the tenancy had fallen through"


(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy on or after 6 April 2007, the tenant or any relevant person (as defined by section 213(10)) may make an application to the county court on the grounds—

(a) that section 213(3) or (6) has not been complied with in relation to the deposit, or

(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

https://www.legislation.gov.uk/ukpga/2004/34/section/214


The legislation was not complied with for the duration of the time that the deposit was held (is being held).

They cancelled any implied protection when they informed the scheme that the Tenancy fell through. 

They failed to protect the deposit
They failed to serve the P.I.

Even if they served a PI with all the details below it would be void because the scheme was not protecting the deposit and cover had been cancelled, not even terminated.  They said the Tenancy fell through.

The intent of Parliament is always relevant and always worth bringing up if there are any dumb arguments.

We can argue the toss but the op said "we are aware of our rights in relation to this and will be acting on them"

As I said, they start with the search, then the emails to confirm the protection was not taken out with any of the three schemes and then they provide that to a claim firm on a conditional fee basis. 

Any attempt of trying to say in Court "the legislation does not say what they want it too" would be incredibly foolish, or even to say it in response to a letter before action.

First of all it would delight the claim firm to generate ten thousand words on why the claim was valid, I have a plethora of such arguments (made before claim) on file for both sides. 

If one generates vague arguments without foundations then it encourages firms to argue, when the objective is always to settle matters before a firm is even involved to avoid costs. 

If they carried this on until Court then the only option for the Landlord would be to engage their own Counsel at huge cost.  The Tenant can't lose, any risk is carried by the claim firm and the only defence is to prove the protection was in place.

It would be an absurd argument and even with some sort of crowd funding to seek appeal after appeal to the Supreme Court, the intent of the legislators is always relevant.

Quote from: Blak3y on May 02, 2024, 06:31:59 PM2) Our landlord has not placed our deposit with any of the DPs companies.

The deposit was placed with 1 of them but only for 4 days until it was removed and the company were informed the tenancy had fallen through

Prescribed information relating to tenancy deposits
2.—(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 ("the Act")—

(a)the name, address, telephone number, e-mail address and any fax number of the scheme administrator(1) of the authorised tenancy deposit scheme(2) applying to the deposit;
(b)any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act(3);
(c)the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy(4) ("the tenancy");
(d)the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;
(e)the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;
(f)the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and
(g)the following information in connection with the tenancy in respect of which the deposit has been paid—
(i)the amount of the deposit paid;
(ii)the address of the property to which the tenancy relates;
(iii)the name, address, telephone number, and any e-mail address or fax number of the landlord;
(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;
(v)the name, address, telephone number and any e-mail address or fax number of any relevant person;
(vi)the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and
(vii)confirmation (in the form of a certificate signed by the landlord) that—
(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit.

Quote from: jpkeates on May 12, 2024, 03:28:51 PMThe issue is that the wording of the legislation doesn't support what you want it to.

The only possible breach with a penalty that could apply here is that the tenant "has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme."

In order for that to be the case, the landlord has to notify the tenant of the authorised scheme and the tenant has to have been unable to obtain confirmation from the scheme administrator. Both are necessary.

The intent of parliament is interesting, but it's academic (it might matter if there was some kind of appeal or it went to the Supreme Court). The wording in this case is pretty clear and, in my view, unhelpful.