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Matt Jones
Matt Jones, Solicitor
Category: Property Law
Satisfied Customers: 671
Experience:  I am a qualified and practicing Solicitor with over 7 years post qualification experience
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I have a tenant problem. I registered the deposit late , but

Customer Question

i have a tenant problem. I registered the deposit late , but attempted to register on time.
tenant has made a claim and a court hearing (on the issue of compensation for a late deposit) one day before the end of the tenancy agreement
A section 21 has been issued
the deposit is registered with the TDS
will my section 21 be valid? or do i need to issue another section 21 on the day the AST expires ?
regards
Submitted: 1 year ago.
Category: Property Law
Expert:  Matt Jones replied 1 year ago.
Hi . Some questions please: -1) did you serve the s21 notice after the date the deposit was registered?2) Did you give the tenant the Prescribed Information and did they sign for it? 3) what date was the notice served?4) what date does the ASt end?5) what does the notice say exactly about the date the tenant has to be out?
Customer: replied 1 year ago.
1. Yes , deposit registered in august 2015; section 21 served about a week ago
2. Yes. I sent it recorded delivery and gave it by hand too ( in their hand)
3. Notice served last week
4. Ast ends on 16th feb 2016 ( started on 16th feb 2015)
5. Court hearing on 15th february 2016 for claim of compensation for late registration ( is this a coincidence so close to end of ast)
6. Notice states tennant out by 16th february*****khan
Expert:  Matt Jones replied 1 year ago.
Thanks. Can I just check is the last day of the AST the 16th Feb - the reason I ask is that this means the AST is 1 year and a day. AS to point 6 - need to be clear here - does it state the "end date" is the 16th (i.e. you have to be out on the 16th) or does it state you have to be out "after" the 16th- what is the precise wording?
Expert:  Matt Jones replied 1 year ago.
Can you reply to the above so I can help further ?
Customer: replied 1 year ago.
Sorry was abroad.
The exact wording is :The Landlord requires possession of the Property after the 16 February 2016 or on the day being the last day of the period of the tenancy which shall expire next after the end of two months from the date on which this notice is given.
This notice is given by the Landlord and you are the tenant of the property. "
Does this clarify?
Customer: replied 1 year ago.
Also if the tennant does not move after the 16th feb, is the tenancy agreement null and void and can i increase the rent ( the original AST stated 2 years to fix rent and no rent increase, but if a section 21 is served, why cant i increase the rent?
Expert:  Matt Jones replied 1 year ago.
Hi sorry for the delay myself. From the information provided the section 21 notice seems to be accurate and correct therefore after the end of the Notice Period you will be able to issue accelerated possession proceedings. On the subject of rent increases a landlord has to give a tenant at least one month's notice of any rent increases that will last for the remaining period of the tenancy however in this case the section 21 notice brings the tenancy agreement to an end and therefore any rent received after then it's what is called mesne profits. by receiving new increased rents you may inadvertently begin a new tenancy period so you may not wish to do that
Customer: replied 1 year ago.
Is this despite a court hearing one day before the end of the AST?
Why would a hearing take place one day before the end of the AST. I realize i registered the deposit late, but until the outcome of the heqring is known, is the section 21 valid ? Is it in anyones favour that the hearing is one day before the end of the AST?
Expert:  Matt Jones replied 1 year ago.
I cannot of course comment specifically on the court case having seen nothing of the paperwork involved, however if the proceedings issued against you are singularly for the lack of a correctly issued deposit then this is all that will be dealt with on the day. I believe it is purely coincidental that date is the day before the expiry of the notice. The section 21 notice, and any further Court action that you take is a separate action that you will issue out of the local court. It is is a matter for the Court of course, but I believe the s21 notice is valid as it was issued after the deposit was protected and appears to be correctly completed. The hearing regarding the deposit should be dealt with on the day of the trial. It is possible that, if the hearing is stayed or adjourned and you then issue possession proceedings then, in order to save Court time, the possession hearing and deposit hearing may be dealt with together, however this is probably quite unlikely.
Expert:  Matt Jones replied 1 year ago.
Hi, has the above helped you? If so please leave me positive feedback so I can be paid for my time. the question wont close and then if you think of something later you can always come back and ask any further follow up questions.
Matt Jones and other Property Law Specialists are ready to help you
Customer: replied 1 year ago.
Ok. I will do . What I am not quite sure about in your answer is that the section 21 is valid if there is a court hearing regarding the claim of compensation for a late deposit. Is there any case law or evidence you can cite ? I have read that if the deposit is in dispute or there is a court hearing on the matter, a further section 21 has to be served once the claim is settled ? Is this true ?
Customer: replied 1 year ago.
Also another question:
If the tennant does not leave on the 16th Feb 2016 and I have served a section 21 (which we assume is valid), then can I send him a notice that the rent as of the 17th February will be a new amount. In the original contract I stated that the rent would be fixed for two years (if the tenancy continued to February 2017 - which it will not). As the AST after the 16th February is null and void, am I within my rights to charge hotel rates (e.g £300 per day) ? - I guess in the hope that he will leave ?
Expert:  Matt Jones replied 1 year ago.
HI again. On the first issue; I would say that the s21 is not affected by the Court application. the deposit claim does not determine the end of the tenancy. the s21 and subsequent possession application does this. HOWEVER on reflection I am wondering is the s21 is a correct as I first considered. the notice itself appears, from what you have said, fine. The problem is when it was served. The legislation in relation to deposits has changed often and, there has been some bad legislative drafting and unusual Court decisions, so there is some confusion, however my worry now is that because the s21 was served inside the fixed period of the tenancy, and because the tenancy began after April 2012, although the deposit has been protected and the Pres Info served the s21 may be invalid,. Quite honestly I cant find any case law to go either for this or against it specifically, but it is possible because of the changes by the Deregulation Act 2015 altered things and cleared them up a little for deposit taken after June 2015,.Arguably one of the best thing you could have done before serving he s21 notice was to simply return the deposit, however I worry now that this will be too late to do and you may have to wait until the end of the tenant and serve a further s21 notice (not because of the Court action, but because of when you served the s21 notice)On the question of the new rent, I am not sure of the validity of the status of the increased rent after the fixed period end, however, as i said a few posts up the s21 notice brings the tenancy to an end. If you increase the rent after this you may be seen to be "re-negotiating" a new 12 months tenant on increase rent term. Any rent, and "mesne profits" (pronounced "mean profits", this is basically a contractual compensation rate for the loss of use of your property, and in practice is essentially the same amount as the previously paid rent) as I have mentioned above have to be fair and reasonable and so the £300 per day charge is not possible. They have to be market rate or you will be challenged . therefore, if I am right about my new view of the s21 notice perhaps the best thing to do it to serve him with notice that the rent will increase to a reasonable amount at the end of the term (under Form 4B - and for which you then have to wait a month to kick in) and then to be certain serve a new s21 notice.Hope that helps further
Customer: replied 1 year ago.
Thanks
So if i understand you correctly, my section 21 is not valid or may not be valid because i have not returned the deposit?If i return the deposit on the 13 th of february , would it be valid? Or will i have to serve another section 21 regardless?If the basis of the legitimacy of the s21 is the deposit is protected , then i guess im ok; if the basis is its protected and returned (!which sound contradictory) then my s21 is not valid and id have to first return his deposit and then serve s21 again?
Sorry to go round in circles on this
I need to be sure to prepare in advance.Separately, How can i now do the following:1. Start a claim of compensation ( as i know he has damaged items in the flat
2. He does not let viewers in to either sell the flat or new tennants to view
3. Which forms do i need to fill for loss in rent after i increase to market rate? And which forms for damages to property?
Expert:  Matt Jones replied 1 year ago.
I have made the offer of the call but in the mean time:my section 21 is not valid or may not be valid because i have not returned the deposit? If i return the deposit on the 13 th of february , would it be valid? Or will i have to serve another section 21 regardless? You don't need to return the deposit now, I was just pointing this out as something you may have doneIf the basis of the legitimacy of the s21 is the deposit is protected , then i guess im ok; if the basis is its protected and returned (!which sound contradictory) then my s21 is not valid and id have to first return his deposit and then serve s21 again? Don't return the deposit now, you have protected this. Just serve the s21 notice at the endSorry to go round in circles on this I need to be sure to prepare in advance. Separately, How can i now do the following: 1. Start a claim of compensation ( as i know he has damaged items in the flat You will do this through the deposit protect scheme 2. He does not let viewers in to either sell the flat or new tennants to view I am not sure what you are asking here. if it is that you want to be allowed in then you can give him ample notice he is obliged to let you in. if he doesn't then, given the circumstances as you cant force your way in, it may be better to wait until he leaves / ordered to leave 3. Which forms do i need to fill for loss in rent after i increase to market rate? And which forms for damages to property? Both through the deposit protect scheme, or the usual Court forms if this is over and above the deposit taken.