Accelerated Process – solicitor says no!?

Accelerated Process – solicitor says no!?

10:38 AM, 26th January 2023, About A year ago 18

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Hello, a S21 was issued to a tenant with expiry in mid Dec. I then contacted my insurance to progress the accelerated process. They contacted the legal company that I have cover with as part of my policy.

They have come back to me stating S21 is deemed invalid and that they will not progress for the following reasons:

  1. The tenancy deduction clause has not been included in the prescribed information
  2. I cannot see that a hard copy of the DPS T&C’s has been provided to the tenant
  3. The most recent How to Rent Guide was not served on the tenant at the point when the tenancy went periodic.

Can anyone help/clarify on point 1 and 3 please? (Point 2 already sent done – solicitor clearly not read evidence attached to claim showing all deposit info including T&C sent to tenant and her acceptance of this within the required timescale).

As far as I am aware, evidence of serving the PI ONLY is required to fulfil the S21 requirement… and the H2R guide is not necessary as (a) the contract is a rolling periodic and not a new contract and (b) there has been no version update to it anyway. (NB the guide was served correctly before the start of the tenancy).

Thank you,

Reluctant Landlord

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Steve Masters

12:11 PM, 26th January 2023, About A year ago

Regards PI; you might find that the discrepancy is due to the subtle difference between a Fixed Term AST going Contractual Period or Statutory Periodic.
Sorry, don't have time to look it up but you might find this useful or someone else could expand.


12:16 PM, 26th January 2023, About A year ago

Not a lawyer but my understanding is that a valid PI must contain, per The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 g(vi):
"the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy".

This is why the PI requires a tenancy deduction clause and may be invalid without it. A section 21 is not enforceable if a PI was not served on the tenants within 30 days of receipt of deposit. Moreover, you may be liable for up 3x the amount of the deposit for this failure.

I do not understand point 3; Right to Rent guides (and other tenancy documentation) does not need to be served if tenancy becomes periodic.

Reluctant Landlord

12:21 PM, 26th January 2023, About A year ago

interesting - I always thought that the PI document
has only to meet the requirement by being SERVED to tick the S21 box???

if it was a fixed term 6 mth AST then went contractually periodic - there is no new tenancy so not necessary to issue another how to rent guide.

or am I wrong too??

Luke P

12:23 PM, 26th January 2023, About A year ago

Firstly, stop taking deposits...the paperwork is not worth the hassle (especially when it trips you up).

As for point 3, if that is indeed correct (and there's argument that once periodic, each month is a new period and a new tenancy, so it's a ridiculous expectation), just serve the current/relevant H2R Guide (IF it's changed, which it hasn't for some time now) and re-issue Form 6A and start over.

Freda Blogs

12:27 PM, 26th January 2023, About A year ago

There is no necessity to serve hard copy of DPS Ts & Cs to tenant as far as I am aware - maybe I too am wrong?

I give tenants an option of e-version or paper (they always prefer e-version), and I always get a digital signature on the PI to confirm that it has been received by them.


12:47 PM, 26th January 2023, About A year ago

Reply to the comment left by Luke P at 26/01/2023 - 12:23
Wholeheartedly agree, deposits are a nightmare and should be avoided at all cost. I have seen many of my fellow landlords fall foul of deposit protection rules even when they have done everything correctly.

Hamish McBloggs

14:18 PM, 26th January 2023, About A year ago

When a tenancy lapses to periodic, the periodic tenancy is a new tenancy.
Information served on the tenant at the start of an AST must be served again at the start of a periodic tenancy.
Deposits :
A tenant must have been served with 'prescribed information'.
I serve this by:
1. Email
2. WhatsApp
3. Get the tenant to sign a letter stating that the prescribed information has been received.
4. Get the tenant to sign a copy of the prescribed information.
5. Re-issue the prescribed information as a tenancy lapses to periodic. Re-sign everything above.
6. Make all the above permanently available by dropbox or similar.
How to rent guide
I repeat everything above for the How to Rent guide.
You must ensure that you serve the then current version or it doesn't count. Even if it's only a redesign of the cover picture or some Gov intern has taken out some useful information by mistake.
(What happens if I serve one version in the morning and it is updated later that day?)
In fact, and it's a complete pain in the a**e, I give the tenant every update, sign letters etc. as above every time. I have had comments from tenants ... a common one being - what's the difference? - in the past I have used PDF difference software to identify the differences though some update notes are published now (link below) ... the how to rent guides don't have history in them or update summary in them. The documents historically (histerically) have had a variety of naming formats. The Gov only make the latest available so you MUST catch it while it's flying or go elsewhere for histerical versions. The government release the documents by stealth so check every month.
The latest How to Rent version from HM Gov doesn't even have a reference number, Crown copyright, product code or version number - just 'December 2020' in the footer - of - the - second - page. So I assume it is 10 Dec.
Consider the following fun and games:
I provide a tenant with a folder that I personally visit and update with the new documents and signed letters. It is surprising how many folders (like smoke detector batteries) get lost or are repurposed. The cost is minimal but losing at a hearing is expensive. I have found that extraordinarily comprehensive information makes a magistrate sigh. There is absolutely no way that they will have read even 1% beyond my summary.
When filing my latest (and final ever) s21, I included every document served on that tenant, every letter acknowledging receipt signed by the tenant, screen shots of dropbox file locations where the same information is available electronically to the tenant 24/7/365 - and a photo of the folder with the tenant in the background. It made the s21 an enormous document.
The only thing that stumped me was the question 17c
'If there is no relevant gas appliance in any room occupied by the
Defendant, has the Claimant displayed in a prominent position
in the premises throughout the tenancy a copy of the gas safety
record with a statement endorsed on it that the Defendant is
entitled to have their own copy of the gas safety record on request
to the Claimant at an address specified in the statement?'
Perhaps someone can unpick this for me? No gas = no need for a GSC. Who else has done this? And, if the tenancy is already underway, is it too late for a LL to redeem themselves?
Every GSC ever was delivered as above, as well as independently by post by British Gas, was available electronically 24/7/365. As was all electrical work, repair work, meeting notes ...
I simply do not trust LA's, Courts, Government to make the right decision let alone a timely or cost effective one for anyone concerned.

Judith Wordsworth

14:39 PM, 26th January 2023, About A year ago

I serve any updated How to Rent guide by email attachment immediately it is notified.

Reluctant Landlord

14:51 PM, 26th January 2023, About A year ago

so is a S21 legally 'invalid' in this case ONLY be virtue of not having detail in tenancy deduction clause?

I thought that S21 is invalid if you didnt serve the actual document.

So if we follow this through, how do you add in the missing info and re-serve it? Amend the existing PI and reserve the whole document or re-write another one? Do you date it todays date or the date when then deposit was taken?????


15:33 PM, 26th January 2023, About A year ago

"so is a S21 legally 'invalid' in this case ONLY be virtue of not having detail in tenancy deduction clause?"

I cannot answer this definitively. Whether the PI you served is substantially compliant with the legal requirements is a matter of fact and degree.

"how do you add in the missing info and re-serve it? "

Yes, that would ensure that the S21 was enforceable.

However, there are practical as well as legal considerations. Re-serving the PI may alert the tenant to a potential claim for failure to serve a valid PI within 30 days. You may decide you prefer to risk this, not serve a new PI, and represent yourself/use a different solicitor.

"Amend the existing PI and reserve the whole document or re-write another one? Do you date it todays date or the date when then deposit was taken?????"

PI don't contain today's date from what I recall.

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