Ask a Law Question, Get an Answer ASAP!
Hello, thank you for your question.
My name isXXXXX can assist with this.
Are you asking how you get the tenants out in light of the failure to protect the deposit?
Are we liable to any penalties as a result of not protecting the deposit in the given time frame even though we have protected it now and how do we get the tenants out of the property. Is the Section 21 that we have issued dated 28/12/13 valid and enforceable?
When were you given the deposit?
We were given the deposit on 28 August 2008 and we have been renewing the tenancy agreement annually
Okay, so yes, there would be a penalty that applies to you for not protecting it I'm afraid to say. It could be a penalty of up to 3x the deposit amount.
Would a court determine the amount of the penalty and what factors would be taken into consideration regarding the amount of the penalty?
Perhaps as importantly, your s.21 notice will be invalid.
The court has a discretion. It will consider things like whether it was deliberate, how long, whether the tenant requested it be protected etc...
If section 21 is invalid how would we go about taking possession of our property. Do you suggest we get legal representation?
Getting a lawyer is perhaps the best idea to give you the best chance of getting your property back quickly. Basically, though, you have two options. You can either give back the deposit (minus any agreed deduction - if applicable), and then you can rely on the s.21, or you can serve a s.8 notice instead, which is likely to give the court a discretion as to whether the property is to be handed back unless you have lots of rent arrears.
It's an unfortunate situation to be in, because realistically, you might be better off giving the deposit back, and relying on the s.21 (to which there is no defence), rather than using s.8 which could be defended.
Am I understanding this correctly - give back the deposit now and then the s.21 is enforceable. Does this depend on the tenant accepting this line of action?
You would need to serve a new s.21 notice, but yes, you could use that procedure once you have repaid the deposit.
The effect of serving a new notice is, of course, to start the time period running again. The tenant remains liable to continue paying rent in this period, but I appreciate it's not ideal .. it's Parliament's way of punishing landlords for not protecting the deposit.
Does the tenant have to accept the deposit or do the have the option to refuse and take the case to court? If they do accpet
If they do accept do we have to serve two months notice again?
They have to accept it back, so long as you offer it, it will have the same effect if they refuse to take it.
"If they do accept do we have to serve two months notice again?" Yes = you do.
Does this mean that weather I give it back or not they can still take the case to court and we will still incur a penalty?
Yes, it does. You have no way to avoid the penalty.
ok, but will it work in our favour to demonstrate that omitting to protect in the first place was not deliberate, it was not requested at any time by the tenant?
Will the penalty be imposed only of the case goes to court?
It should save you from the 3x amount yes, and it's all about the court having a discretion, so it could say 1x, it could say 3x, and I'm guessing you stand a chance of a lower end penalty.
Yes, the penalty is imposed only if the case gets to a final hearing.
if you can agree something with the tenants before then to end this, once and for all, then even better.
Do you recommend that negotiations are done through the solicitors or should we attempt to speak to the tenant's solicitor and see if we can come to some amicable agreement before appointing a legal representative and incurring legal charges?
It's often best to use lawyers, but it depends on the people you're dealing with. If you think they might be reasonable and sensible, then it's perhaps best to avoid the cost of lawyers as you say, but if you think they might be difficult, then solicitors are probably best.
Thank you very much for your advice
Thank you - good luck in sorting this.