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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69530
Experience:  Over 5 years in practice
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I forgot to register my tenants deposit. Instead of collecting

Customer Question

I forgot to register my tenants deposit. Instead of collecting the deposit as one sum as she didn't have the funds at the time, I allowed her to pay it over 5 months and simply forgot to register the deposit. I want to sell the house but cannot serve a Notice 21. The tenant is in arrears and wants the council to re-house her. She is now on a periodic agreement. I have suggested I now give her another fixed term agreement and will return her deposit by way of wiping her arrears.
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.

Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

When does the AST end?
Customer: replied 2 years ago.

It ends on the 26th April.

Expert:  Jo C. replied 2 years ago.
When did this flip over into a periodic?
Customer: replied 2 years ago.

April 26th 2013.

Expert:  Jo C. replied 2 years ago.
I see.

There is no way around it now then. You are too late to protect the deposit as there is no longer an AST.

Agents have found ways around this situation. However, the only really ethical way is just return the deposit to the tenant. I do realise that you probably don't feel like doing that but if you don't then you cannot ever serve a S21 notice and she will remain there potentially for eternity whether paying or not!

If you return the deposit then you can serve a lawful S21 notice upon her even if she kicks and screams. Then you can seek a possession order if necessary.

You do have a claim against her for the arrears anyway. Obviously she could counter claim against you for three times the sum of the deposit under the Localism Act but she will only get the sum of the original deposit in practice.

Can I clarify anything for you?

Jo
Customer: replied 2 years ago.

Thank you


 


Do I physically have to pay her £500 or does wiping her arrears achieve the same end ? She has lodged the first Agreement with the council. How will this affect the situation.

Expert:  Jo C. replied 2 years ago.
No, you need to return the deposit to be safe which means repaying the money I'm afraid.
No problem and all the best.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’. You can also bookmark my profile http://www.justanswer.co.uk/law/expert-remus2004/

Customer: replied 2 years ago.

Thank you so much. You are being incredibly helpful.I have very limited knowledge as you can see. Is there a legal document she has to sign to acknowledge receipt of the returned deposit ? The tenant has a debt relief order and clearly no private landlord is going to be interested so she has approached the council housing department.Given the parlous state of the housing stock the council will probably sit on its hands until they see the bailiffs approaching. I fear that I will have to seek a court order at some point. Is this the case ?

Expert:  Jo C. replied 2 years ago.
No, and, in fact, some tenants do not accept the deposit.

You just have to prove that you have returned it - getting a serving agent to do it, doing it yourself with a witness present, filming yourself on a phone whilst returning it etc

You may well need a court order. She isn't going to go lightly as the council will not rehouse her although, of course, she can always do what the rest of us do and work and pay for her own housing.
Customer: replied 2 years ago.


Again, thank you. What if she refuses to accept the deposit ? Would I be able to BACS the money straight into her account ? It's extremely frustrating as I have been very generous to her ( she has a 6 year old child and partner who works ).

Expert:  Jo C. replied 2 years ago.
Yes, you can do that but there are lots of other ways of making a recordable transfer.

You are not responsible for her circumstances. Even if she had 15 children and lived on benefits then that is her prroblem caused by her life choices and its not for you to support her or, indeed, in my view her partner.
Customer: replied 2 years ago.
Sorry to keep bombarding your with questions. I presume I don 't have to inform her in advance that the deposit is on its way back to her. The gene pool is evaporating I regret
Expert:  Jo C. replied 2 years ago.
Yes, and it has been for a very long time.

You don't have to inform her. I wouldn't suggest it. If she is sinister then she will just be given notice of the need to try to prevent you returning it.
Customer: replied 2 years ago.

What if she twigs and returns the deposit ?

Expert:  Jo C. replied 2 years ago.
Just return it again.

You have returned it which is all you need to do serve a S21 notice.
Customer: replied 2 years ago.

Thank you so much. The gloves are off. If she is currently on a periodic agreement does this continue as such until the 'end game' ?

Expert:  Jo C. replied 2 years ago.
yes, unless she signs a new AST
Customer: replied 2 years ago.


My final question you'll probably be pleased to know.


 


If I were to go down the road of giving her an AST and the first one ended on 26th April, do I have to wait until then or can I do one dated 26th March ? I can then serve her Notice with two months remaining ?

Expert:  Jo C. replied 2 years ago.
No, you can sign one tomorrow. Not that that would suit your aims as then she would be there for a further fixed period.

You could serve her notice the day after giving her an AST but ASTs are for fixed terms usually of 6 months and you couldn't end it any earlier than that unless you can show breaches.
Jo C., Barrister
Category: Law
Satisfied Customers: 69530
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Excuse me for asking another question. The tenant is living in my house that does not have a mortgage. The house was in my name throughout the term. The Building Society no longer has a charge on it. Therefore, could my wife be a landlord on the property ?

Expert:  Jo C. replied 2 years ago.
Not on the face of it. You seem to be the landlord.

The contract was with you I presume?
Customer: replied 2 years ago.

Yes it was. I guess I'm anxious. I just need re-assurance that I can issue a lawful 21 when it suits me and not have to dance under the Sword of Damocles' with her living in my house sine die. I'm going to subtly return her deposit on Friday afternoon.

Expert:  Jo C. replied 2 years ago.
Yes, I do understand.

There are always ways around this. They just are slow and expensive and they lead to undeserving people living rent free.

Customer: replied 2 years ago.

I were to give her an AST and issued her with an S21 she will return to the Housing Department. Is the onus on me to prove tbe legality of the S21 ? will the Council stall by saying that I have no certification to give of proof of registering the deposit ?

Expert:  Jo C. replied 2 years ago.
Yes, they could do that I'm afraid.

You may have to go to court.
Customer: replied 2 years ago.

Would the court acknowledge that in good faith I returned her deposit and lawfully issued an S21 ? What sort of time span on average to remove a tenant ? I shudder at the cost !

Expert:  Jo C. replied 2 years ago.
The cost is not huge. The issue is delay.

When you factor in the two months of notice on the S21 I'm afraid it could take around four months.
Customer: replied 2 years ago.

what are the criteria for the courts ?

Expert:  Jo C. replied 2 years ago.
I'm not sure what you mean?
Customer: replied 2 years ago.

Sorry. I can clearly demonstrate that I have been an excellent landlord and have supported her and been very generous. However we have an interest only mortgage on our current propery and twin girls to boot. it is for that reason why we need to sell my property. My mistake in not securing her deposit was a genuine oversight. My tenant is probably better off notwithstanding her debt relief order, than me !

Expert:  Jo C. replied 2 years ago.
Ok.

So what did you want to know about that?

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