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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I need further help on the above as the tenant's solicitor

Customer Question


I need further help on the above as the tenant's solicitor has put in a defence to the N5b form I submitted with regards ***** ***** above.
The solicitor believes both the section 20 (to advise that the tenancy was to be an AST) and the sec 21 notice are incorrect. They are also saying that I should have protected the deposit which appeared on the earlier tenancies written by my deceased husband and his sister before he took over from her. The contract I have with the tenant, written up in 2005 after my husband died that year, does not mention a deposit. Therefore when it became a periodic tenancy in 2007, I was told had nothing to protect - Alex Watts confirmed this.
Their solicitor says that the tenant 'avers' that the original contract commenced in July 1992 whilst the agreement I have in my possession states it started on 28th August 1992. I don't think he has his copy of the original agreement. In this light he is saying that the sec 20 served originally on the 26th august 1992 is invalid as it should have been served before july 1992.
He also says that the last contract was written up to start in august 2005 (which is true) but was signed by the tenants in 2007. Nowhere on the tenancy does it state a date of signature to be in 2007.
Although I have said that I would like a hearing should the tenant put in a defence to the n5b, will the courts look at the paperwork first and decide whether a hearing is necessary? Or will there definitely be a hearing where I will have to go in to defend myself?
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Alex Watts : and thanks me.
Alex Watts : When was the latest agreement please?
JACUSTOMER-rikqh6z9- : alex. I hope you had a good new year?
JACUSTOMER-rikqh6z9- : the last contract was dated the 5th August 2005 and was a fixed period of 2 years. Another one was never written after that and so this one became the periodic agreement we relied on.
Alex Watts : Yes the law only requires a deposit to be protected if it was entered into after 6th April 2007
Alex Watts : This one was 2005 therefore no need to protect the deposit
Alex Watts : Please see
Alex Watts : https://www.gov.uk/tenancy-deposit-protection/overview
Alex Watts : Can I clarify anything about this today please?
JACUSTOMER-rikqh6z9- : I read that a contract becomes a 'new contract' when it becomes a periodic tenancy which this one did on 4th August 2007 (after 6th April 2007)?
Alex Watts :

I have just read the recent case of Superstrike vs. Rodrigues. Sadly that says that the deposit must be protected.\

Alex Watts :

Therefore what you should do is protect it now, serve the notice.

Alex Watts :

This is only a very recent decision and I have checked my legal resources and this is now the legal position

Alex Watts :

Sorry misunderstanding

Alex Watts :

But protect and then you can evict.

Alex Watts :

Can I clarify anything else ?

JACUSTOMER-rikqh6z9- :

:(

Alex Watts : Indeed.as I said it's very recent. I looked up and read the case.
Alex Watts : But you are on the right track now.
JACUSTOMER-rikqh6z9- :

Thats unfortunate as I went ahead and put in the N5b form after we discussed it in december. I assume that I will have to retract the N5b and lose the £285 I paid to the court?

Alex Watts : No, you can ask the court to stay proceedings. So once you protect then you can start the claim from where you left off
Alex Watts : So you won't lose the £285
Alex Watts : So you ask stay or adjourned generally with Liberty to restore
Alex Watts : That will do it
JACUSTOMER-rikqh6z9- :

Can you please explain to me what the 3 different things are?

JACUSTOMER-rikqh6z9- :

1. Stay

JACUSTOMER-rikqh6z9- :

2. Adjourned Generally

JACUSTOMER-rikqh6z9- :

3. Liberty to restore

JACUSTOMER-rikqh6z9- :

I have looked at the case you mentioned. It was the one in 2013? I have my interpretation on what it all means, but I don't want to assume.

JACUSTOMER-rikqh6z9- :

From my understanding of the deposit protection rules, I should have protected it in august 2007 once the tenancy became a periodic and given the tenant the prescribed information at the time. Therefore, any new sec 21 notice served on the tenant, after the deposit is protected, can still get thrown out. Wouldn't it be better if I could ask 'Stay or adjourned generally with Liberty to restore' then pay the deposit back to the tenant and then serve a second sec 21 notice? Can I do that?

Alex Watts : Yes once it became periodc is to protect it then.
Alex Watts : You can ask stay of current proceedings, get everything in order and then lift the stay.
Alex Watts : You can apply to do that.
Alex Watts : Does that help?
JACUSTOMER-rikqh6z9- :

No

JACUSTOMER-rikqh6z9- :

Are you saying the only option I have is to protect the deposit and re-issue the sec 21 or that I could instead ask Stay, return the deposit and then re-issue the sec 21? This would be a better option if possible as they'd have no chance to reject the second sec 21 then no?

Alex Watts : You can either:
Alex Watts : 1) stay the proceedings, return the deposit and then continue with proceedings, or
Alex Watts : 2) stay the proceedings, protect the deposit and then continue with the proceedings
JACUSTOMER-rikqh6z9- :

i see...

JACUSTOMER-rikqh6z9- :

That is interesting as I would have thought I would get into trouble with the court if I asked stay and then tried to change something that the defendant has put forward as a defence and then to re-open the case when it has been set right....

Alex Watts : The court has power under the rules part 3 to rectify any defect in proceedings
Alex Watts : You are asking stay to rectify proceedings.
Alex Watts : If you had to do that and issue again what would be the point?
Alex Watts : It would be a waste of court time and resources
JACUSTOMER-rikqh6z9- :

Ah I see. Then that sounds good :)

Alex Watts : Great. Can I clarify anything else ?
JACUSTOMER-rikqh6z9- :

Yes please. Have you got a web link so I can take a look at the rules part 3 please?

Alex Watts : http://www.justice.gov.uk/courts/procedure-rules/civil/rules
Alex Watts : If this answers your question might I ask you my final answer before you go today, the button should be at the bottom of the screen
Alex Watts : If you need more help, please click reply
JACUSTOMER-rikqh6z9- : alex
JACUSTOMER-rikqh6z9- : Sorry I haven't rated you yet - am I supposed to rate you at the end of each day?
Alex Watts :

If I have answered this question yes

Alex Watts :

You are on subscription so you can ask as many questions as you like

Alex Watts :

It works out better if you ask a new question each day, otherwise the system thinks you are stuck!

JACUSTOMER-rikqh6z9- : I looked at the rule 3 and it looks like the defendant would have to agree to the stay. If they don't, I can't ask to be put on hold. Is this the case? If so this doesn't work in this situation
Alex Watts :

No, the Court can do it, given the overriding objective of rule 1

Alex Watts :

You can make an application yourself to be considered

JACUSTOMER-rikqh6z9- : Can I retract the claim, return the deposit then serve the sec 21 again? I assume doing it this way will lose me my £285 ad that I'd have to pay the tenant's costs ie solicitors fees?
Alex Watts :

You can but you lose the £285

Alex Watts :

Which is why a stay is better to rectify proceedings

Alex Watts :

If this answers your question could I invite you rate my answer before you leave today.


If the system won’t let you please click reply.



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