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leanne-jones
leanne-jones, Barrister
Category: Property Law
Satisfied Customers: 183
Experience:  Barrister
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My mother is a landlord of residential premises, let on an

Resolved Question:

My mother is a landlord of residential premises, let on an assured shorthold tenancy which expires on 30th June. Notice was given under Section 21 Housing act when the tenancy was granted 1 year ago. The letting agent had the deposit protected under a government registered scheme, but the landlord released this to her when they stopped managing the premises in May this year. So far she has not deposited the deposit in a registered scheme. The tenant is behind with his rent and she wants possession under the Act - not bothered with arrears so will use the accelerated procedure.

What is your advice re the deposit? Should she lodge this with another scheme? Is this likely to cause her a problem with the Court when she seeks possession under the accelerated procedure?
Submitted: 4 years ago.
Category: Property Law
Expert:  leanne-jones replied 4 years ago.
Hello - my name is XXXXX XXXXX it will be my pleasure to assist you today.

Case law states that while the deposit needs to be protected, the Landlord can issue a notice to quit while the deposit is not. This is an interesting case in that the notice has already been given but possession has not yet been granted.

Case law also shows that if a deposit is not protected and then the tenant brings a claim for a non protected deposit if the Landlord then protects the deposit the claim will fail.

As such your mother is fine to proceed to claim possession on the accelerated basis as the law has not yet evolved to checking for deposit at point of possession. In any event it is something that may not even be raised by the tenant.

I hope I have answered your question and if I can be of any further assistance please do not hesitate to contact me.


Customer: replied 4 years ago.

Hello Leanne, please can I have more detail on this. So far the proceedings haven't been issued as the Tenancy expires on 30th June, so not free to issue a claim until 1st July.


 


1. If the deposit remains unprotected, will this stop my mother from getting possession of the property? Or are the 2 claims unrelated?


 


2. If the Tenant is aware of this, and the agent wrote to them advising them, and issues a claim for an unprotected deposit, what penalties will the court impose on the Landlord?


 


3.Can this be issued as a counter claim to the possession preceedings, and delay the possession procedure?


 


Simon.


 


 

Expert:  leanne-jones replied 4 years ago.
1) Yes. She should protect the deposit. If she does not the tenant can bring a claim and your mum will have to pay compensation between x1 and x3 the deposit

2) Between x1 and x3 and the Court may not grant possession

3) It could - therefore the deposit should be protected without delay.

I hope I have answered your question and if I can be of any further assistance please do not hesitate to contact me.


Customer: replied 4 years ago.

 


Not sure I follow your answer to point 2 above. Can the court refuse to order possession even if the tenant is behind with payment of the rent?


This cannot be fair in any way, esp. as she has a mortgage on the house to pay.

Expert:  leanne-jones replied 4 years ago.
If you have not protected the deposit then yes. It is not morally fair but sadly it is the law. That is why you need to protect the deposit then possession can be sought.

I have to give you an honest answer even if it is not the one you want to hear.

Customer: replied 4 years ago.

sorry to have to come back again. This case is a complete mess and I feel the agent has not advised my mum at all well.


 


If the deposit is unprotected can she go for possession on Ground 8 i.e. arrears of rent? Otherwise it seems v unfair a tenant can stay without paying rent.


 


Also another complication. Mum owns the property in her sole name but the name of the landlord on the tenancy agreement is her former partner who acted as her agent in granting the tenancy, ad the rent paid to him as she owed him money. His name was also on the Section 21 Notice which accompanied the Ten agt.


 


Partner now lives abroad and there's litltle contact between them. Will this cause a problem with the possession?


 


Happy to make a further donation if you can answer this.


 


S.

Expert:  leanne-jones replied 4 years ago.
If the deposit is not protected can she go for possession - no. Yes it is unfair but that is the law.

As far as a problem with the name on the tenancy agreement, it needs to be the Landlord taking action. But she could take action on his/her behalf. Again this will only be an issue if the tenant raises it.

I hope I have answered your question and if I can be of any further assistance please do not hesitate to contact me.


leanne-jones and other Property Law Specialists are ready to help you
Expert:  leanne-jones replied 4 years ago.
I'm just following up with you to see how everything is going. Did my answer help?


Leanne