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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25410
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Can a GDS be backdated? I do not seem to have been given

Resolved Question:

Can a GDS be backdated? I do not seem to have been given one by my landlord and i am now in dispute with him. I have checked all the sites, and he has not given me a form and he is now threatening me with a S21 but i believe that without a gds this is not possible. Your comments, please
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Are you able to kindly clarify when you refer to GDS you are referring to the protection of your deposit please?

Customer:

Yes, i believe that the Government Deposit Scheme is a must for all landlords. I do not have one and i have checked the three sites and i am not listed , so i have to assume he did not get one, he is now threatening me with a S21 but i believe that without a GDS he cannot get S21. However, if he now gets a current one does that allow a S21 to be served. Having studied the internet, i believe he would only be able to serve a S8 on me.

Joshua :

Thanks. The deposit protection scheme was introduced to the Housing act however this was weakened by a series of court decisions which essentially meant the landlord could avoid liability to his tenant simply by protecting the deposit late. however, this changed with the introduction of the localism act 2011 which amended the provisions concerning deposit protection produced by the Housing act, greatly strengthening them in favour of the tenant. Following the introduction of the localism act, the landlord cannot protect the deposit late to avoid liability.

Joshua :

The position now is that the landlord must protect your deposit within 30 days of receipt otherwise there are a number of consequences: firstly, he cannot serve a valid section 21 notice to give two months notice to you to leave. Secondly, he is liable to return your deposit in full and pay you compensation of between one and three times the amount.

Joshua :

In order to serve a valid section 21 notice, the landlord must first have either a) returned your deposit in full b) reached a settlement with you regarding the deposit or c) obtained a court order settling the deposit. In any event you are able to sue for compensation of between 1 and 3 times the deposit in addition to its return. The judge must award a minimum of one times the amount in compensation but has discretion to award up to 3 times depending upon landlord's conduct

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Customer:

I still have two years on my lease and i witheld the rent due to a dispute over decorating the house. I have been paying a high rent for four years and have asked that the main rooms to be decorated, the house was built fifteen years ago, and i very much doubt it has received a coat of paint since. We got a very good quote for the downstairs area to be done, last april, but he backed down on that , so in frustration i have withheld the rent. Maybe not a brilliant move, but i find the present condition depressing and unnecessay for a possible total of just above £1000, only just over a months rent which have been paying for 48 months. However now i've started i'll finish (as they say}. I gather he cannot evict me and if he takes me to court, i still have the option of paying the rent before court appearance. looks like the relationship between us is finished anyway.

Joshua :

Remember has although he is not able to serve a valid section 21 notice for eviction, he is not prevented from serving a section 8 notice. The section 8 notice is different to a section 21 notice and deals with breaches of tenancy. There are defences available to you for a section 8 notice, principally disrepair defences, but if the landlord can demonstrate that you are more than eight weeks behind with your rent, net of any disrepair counterclaims on your part, the court must order the eviction. This does not prejudice your rights in respect of the deposit protection regulations described above

Customer:

So i can be evicted under S8 even if i pay the rent before the court case. But i can still get compensation for the lack of a GPS. Is that understanding correct.?I gather even if an eviction order is in place, as i still have 2 years left on my tenancy agreement, he still has to give me some months before eviction.

Joshua :

No. Eviction under s8 is not easy for the landlord. You can serve notice on a variety of different grounds but the majority of the grounds give the court discretion as to whether to award possession to the landlord or not. The only significant ground that does not give the court discretion is if the landlord can show at the time of the hearing that your eight weeks or more behind with the rent. In order to avoid eviction on this basis, you can either argue that there are disrepair issues with regards ***** ***** property for which the landlord is responsible and the court can award the cost of this disrepair against any rent owed to reduce the amount owed to under eight weeks in total. Alternatively or in addition, you can offer to make payment in respect of any unpaid rent at ordinary time before the court hearing to bring the rent owed to under eight weeks. It is comparatively rare for a court to award possession using section 8 where there is less than 8 weeks oweing.

Joshua :

if the property is in disrepair, you can ask the local authority to carry out an HHSRS inspection. the local authority and power under the HHSRS regulations to carry out such an inspection and when you find the property does not satisfy their requirements, to order the landlord to improve the same. There are no provisions within the HHSRS rules for decoration on its own but there are wide requirements the landlord must comply with.

Joshua :

You can review the HHSRS requirements here:
https://www.gov.uk/government/publications/hhsrs-operating-guidance-housing-act-2004-guidance-about-inspections-and-assessment-of-hazards-given-under-section-9

Customer:

You have been so helpful. I intend to ignore the letter which arrived by normal post. He says he has informed his solicitor(sorry, i don't scare that easily) but surely the solicitor would have mentioned the GDS. I take your advise to keep the rent owed under eight weeks. Otherwise i can claim disrepair issues and get it done from rent unpaid.

Joshua :

A pleasure. Just to be clear, I do not recommend witholding rent as it can expose you to s8 claims. However if you withold an amount of rent in respect of disrepair issues, notwithtanding the above, there is a means of defence available in respect of rent claims if you can counterclaim for disrepair you claim. Evicition is most unlikely if rent is less than 8 weeks behind on a "first offence" s8 claim by the landlord.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

So i could withhold from the rent due the amount of the quote we got last year, to make a point.

Customer:

should i explain my theory to landlord or just ignore his letter. I hope i have got this straight in my head and many thanks.

Joshua :

I cannot recommend that because it exposes you to a potential s8 claim but the risks of doing that are as above - providing less than 8 weeks of rent are owed, it is unlikely that this would result in eviction. If you are comfortable with the possibility of a s8 claim that is an avenue open to you. Remenber also you can threaten to sue for the return of your deposit and compensation which may give you leverage

Customer:

I'm sure i shall think of something else but hopefully i can work it out without your help, fantastic service Joshua.

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