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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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Hello - we have rented our property to a private tenant, his

Resolved Question:

Hello - we have rented our property to a private tenant, his partner and their 8 year old daughter.
The tenants moved in in August 2008 on an assured short hold tenancy agreement which we have renewed every year. The current agreement expires on 28 February 2013.
The tenants partner has been very aggressive and abusive to us making unreasonable demands including cleaning the bathroom, changing the carpet because she doesn't like the colour.
They went to the council with a list of what they perceived to be areas of disrepair and concern. The council have closed their case and have sent us confirmation of this.
We have now issued them with notice to vacate at the end of their tenancy (Section 21) and we have since received a letter from their solicitor stating that we have attended the property on 4 occasions since August and spoken harshly to the family. We have only attended the premises when we have been requested to do so by the tenant and to allow access to the gas engineer and the electrician to carry out the work that we are required to do by law. This is because the tenant would not confirm that he would be home to let them in even though he was given adequate notice in writing. Their solicitor also states that our tenants partner has suffered stress as a result of our visits and has had to go t her GP on two occasions. This untrue, the only thing we said to her on our last visit when we attended to let the electrician in, is because of her abusive language and aggression towards us that we would no longer wish to speak to her as her name is XXXXX XXXXX the tenancy agreement and we would only deal with her partner who we have the agreement with and whose name is XXXXX XXXXX tenancy agreement. This appeared to aggravate her and she continued to hurl abuse at us and shout. Their daughter was not present at the time.
The tenant has made serious allegations against us which he has put in writing which have proved to be totally untrue and unfounded, he also implicated the gas engineer in these allegations.
On boxing day the tenants partner called our house and was again very abusive and was shouting that there was some kind of emergency and we were to send a plumber straight away. We tried to establish what the problem was at it was difficult to understand through the shouting and screaming and she put the phone down on us. I immediately called back and spoke to the tenant and established that the bath water was not going down indicating that there was a blockage some where. My husband was at the property in half an hour and sorted out the problem.
Their solicitor has pointed out that we did not take out a tenancy deposit scheme within the given time frame. This was indeed an oversight on our part and we wrongly thought that we did not need one for private tenants. We have now got a tenancy deposit scheme in place. We will guarantee to give back the deposit in full on vacant possession.
We have acknowledged receipt of the solicitors letter on the day that it arrived, 20 December by telephone, as the letter stated that we had to get in contact with her within 14 days. We were told that she was on leave until the 2nd of January.
We have always acted as responsible landlords ensuring that all safety checks are carried out as required by law and we have been responsive to their requests at all times.
Do you suggest that we seek legal representation and what could the consequences be for us?
We look forward to your advice.
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hello, thank you for your question.

tdlawyer :

My name isXXXXX can assist with this.

tdlawyer :

Are you asking how you get the tenants out in light of the failure to protect the deposit?

Customer:

Are we liable to any penalties as a result of not protecting the deposit in the given time frame even though we have protected it now and how do we get the tenants out of the property. Is the Section 21 that we have issued dated 28/12/13 valid and enforceable?

tdlawyer :

When were you given the deposit?

Customer:

We were given the deposit on 28 August 2008 and we have been renewing the tenancy agreement annually

tdlawyer :

Okay, so yes, there would be a penalty that applies to you for not protecting it I'm afraid to say. It could be a penalty of up to 3x the deposit amount.

Customer:

Would a court determine the amount of the penalty and what factors would be taken into consideration regarding the amount of the penalty?

tdlawyer :

Perhaps as importantly, your s.21 notice will be invalid.

tdlawyer :

The court has a discretion. It will consider things like whether it was deliberate, how long, whether the tenant requested it be protected etc...

Customer:

If section 21 is invalid how would we go about taking possession of our property. Do you suggest we get legal representation?

tdlawyer :

Getting a lawyer is perhaps the best idea to give you the best chance of getting your property back quickly. Basically, though, you have two options. You can either give back the deposit (minus any agreed deduction - if applicable), and then you can rely on the s.21, or you can serve a s.8 notice instead, which is likely to give the court a discretion as to whether the property is to be handed back unless you have lots of rent arrears.

tdlawyer :

It's an unfortunate situation to be in, because realistically, you might be better off giving the deposit back, and relying on the s.21 (to which there is no defence), rather than using s.8 which could be defended.

Customer:

Am I understanding this correctly - give back the deposit now and then the s.21 is enforceable. Does this depend on the tenant accepting this line of action?

tdlawyer :

You would need to serve a new s.21 notice, but yes, you could use that procedure once you have repaid the deposit.

tdlawyer :

The effect of serving a new notice is, of course, to start the time period running again. The tenant remains liable to continue paying rent in this period, but I appreciate it's not ideal .. it's Parliament's way of punishing landlords for not protecting the deposit.

Customer:

Does the tenant have to accept the deposit or do the have the option to refuse and take the case to court? If they do accpet

Customer:

If they do accept do we have to serve two months notice again?

tdlawyer :

They have to accept it back, so long as you offer it, it will have the same effect if they refuse to take it.

tdlawyer :

"If they do accept do we have to serve two months notice again?" Yes = you do.

Customer:

Does this mean that weather I give it back or not they can still take the case to court and we will still incur a penalty?

tdlawyer :

Yes, it does. You have no way to avoid the penalty.

Customer:

ok, but will it work in our favour to demonstrate that omitting to protect in the first place was not deliberate, it was not requested at any time by the tenant?

Customer:

Will the penalty be imposed only of the case goes to court?

tdlawyer :

It should save you from the 3x amount yes, and it's all about the court having a discretion, so it could say 1x, it could say 3x, and I'm guessing you stand a chance of a lower end penalty.

tdlawyer :

Yes, the penalty is imposed only if the case gets to a final hearing.

tdlawyer :

if you can agree something with the tenants before then to end this, once and for all, then even better.

Customer:

Do you recommend that negotiations are done through the solicitors or should we attempt to speak to the tenant's solicitor and see if we can come to some amicable agreement before appointing a legal representative and incurring legal charges?

tdlawyer :

It's often best to use lawyers, but it depends on the people you're dealing with. If you think they might be reasonable and sensible, then it's perhaps best to avoid the cost of lawyers as you say, but if you think they might be difficult, then solicitors are probably best.

Customer:

Thank you very much for your advice

tdlawyer :

Thank you - good luck in sorting this.

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