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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 70506
Experience:  Over 5 years in practice.
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I have not secured the tenants deposit in a TDS and because

Customer Question

I have not secured the tenants deposit in a TDS and because of this a s21 possession order was not granted by the Courts. Can I put the deposit in a scheme and resubmit the s.21 order?
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

What are the dates of the AST please?
Customer: replied 3 years ago.

The tenants has lived in the property more than 2 years now. Original AST was agreed on 19th August 2011.

Expert:  Remus2004 replied 3 years ago.
Has there been a fresh one signed?
Customer: replied 3 years ago.

No, no further tenancy agreement was signed.

Expert:  Remus2004 replied 3 years ago.
Thats bad news I'm afraid.

How long was the original AST for?
Customer: replied 3 years ago.

12 months

Expert:  Remus2004 replied 3 years ago.
I know this isn’t going to be the answer you want to hear, and it’s certainly not what I want to tell you. However, I wish to be completely honest with you, so I feel obligated to not give you false hope.

I am very sorry but its really bad news.

Unfortunately, you haven't secured the deposit and the AST has expired so you are not able to do so although I have heard some anecdotal tales of people being able to do so. I’m afraid that if the deposit is not secured you are liable to the tenant under the Localism Act to pay up to three times the sum of the deposit and also your notice is invalid.

There are things that you can do about that. The first thing to do is return the deposit in full to the tenant. I realise that might not be attractive but its a lot better than being sued for three times the sum. If you pay the tenant off that will bring an end to his claim against you in practice. In legal theory he could still claim but it will get nowhere.

The other problem that you have here though is that your S21 notice is invalid because the deposit is not secured. That can be served again though when you have returned the deposit in full. I realise that will add time to the procedure but its the only way I’m afraid.

You do have a claim against the tenants at the small claims court if they leave the property with damage or arrears so you don’t need to worry about that. You will not be unable to claim.

The only positive thing I can say is that you will be able to write any losses off against tax.

You can also contact Sue at ABC Properties on 07595 752223. She is fantastic agent who won’t give you any of these problems. She will probably sort this situation out for you if you pay her a nominal sum as well.

I'm sorry this isn't the answer you wanted but it is the position that you face and I have a duty to inform you truthfully.

Hope this helps. Please let me know if you need more information.

Jo
Customer: replied 3 years ago.

Jo


 


Many thanks for the adivce. There are no surprises in your answer but I wanted to double check and make sure the next step is the correct one from a legal standing. Unfortunately a costly lesson for me to learn, but as long as I can see hope in removing the tenant there is a light at the end of the tunel. I'm more than happy to give the tenant the desposit back, she won't give me bank details so should I give her a cheque? What happens if she doesn't cash the cheque? Is providing one good enough?


 


Unfortunately myself and my agent didn't get all our documentation in order so I understand this is my fault.


 


Appreciate the frank advice.


 


Kind regards


Andreea

Expert:  Remus2004 replied 3 years ago.

That is always open to debate. Generally speaking though, courts are on your side about this because it is very unfair on landlords and mostly they are just investment landlords with one rental property who might be forgiven for failing in administration.

You can send her a cheque and rely on that.

Alternatively you could post cash through the door but you need really good evidence of doing so. One option is to get somebody to video it on a mobile phone. So they film you counting out the cash, attending at the address with clear footage of the street name and the door number and then putting it through the front door.
Customer: replied 3 years ago.

If I give her cash or cheque should I enclose a covering letter stating that I'm returning her deposit? Do I need to state the reason for returning the deposit in the covering letter?


Thanks again Jo and I will speak to Sue also.


 


Kind regards


Andreea


 


 

Expert:  Remus2004 replied 3 years ago.
You don't need to do either but its probably a good idea to include a covering letter saying you are returning her deposit.

Do not give a reason. It will only lead to a dispute.
Customer: replied 3 years ago.

I have been advised that if I re file a s.21 I would have to give evidance that I returned the deposit. Will the tenant not be able claim that they did not know what the money was if I do this without a letter?

Expert:  Remus2004 replied 3 years ago.
Well, they could but it doesn't really matter whether they know what it was for or not. The issue is whether its been done.

And anyway, what other reason would there be for you giving them back the exact sum of the deposit.
Customer: replied 3 years ago.

Got it ! If I have any further details am I able to ask you at a later time today?

Expert:  Remus2004 replied 3 years ago.
Yes no problem.

The question won't close from your side.

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/

Remus2004 and other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

wonderful thank you Jo


 


Kind regards


Andreea

Expert:  Remus2004 replied 3 years ago.
All the best.