Concerned about DPS certificate and issuing a section 21?

by Readers Question

8:45 AM, 18th September 2019
About A year ago

Concerned about DPS certificate and issuing a section 21?

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Concerned about DPS certificate and issuing a section 21?

In 2008 my property was let to a couple through an agent. The tenancy agreement was drawn up and both paid money into the DPS, £575 in total.

A year later in what would now be a periodic tenancy they separated and the lady decided to remain. I drew up a new tenancy agreement in 2009 although I was told the original could continue, but without the partner who did apply in writing to be removed.

I cannot remember if she gave another half for the deposit. I have now a DPS certificate that has her name and the original partner with the full original amount in.

The tenant has been in for 10 years. She has been struggling with rent since January and is now three months in arrears and she is on housing benefit.

I want to get someone to serve a section 21…am I ok to do this despite the strange situation over whether she paid or didn’t pay the additional half deposit although there is an up to date DPS certificate?

Many thanks

Wilko

 


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Comments

Neil Patterson

8:54 AM, 18th September 2019
About A year ago

Dear Wilko,

You state you have created a new tenancy agreement, but it looks like you have not protected the deposit for that specific tenancy or issued prescribed information?

"Deposits don’t need to be protected if a tenancy deposit was received for a fixed term tenancy before 6th April, or if the landlord holds the deposit against a statutory periodic tenancy, which also started before April 2007.

However, if a landlord wishes to gain possession of the property under Section 21 of the Housing Act 1988, the deposit must be protected and the Prescribed Information issued to the tenant prior to serving the Section 21 notice.

Landlords will not face any financial penalties for non-protection of the deposit.
Deposits taken before 6th April 2007 and tenancies that became periodic after April 2007

Deposits taken before 6 April 2007, for tenancies that are still running and have moved onto a periodic tenancy on or after this date, now need to be protected in a Tenancy Deposit Protection scheme. If a deposit remains unprotected, the landlord could potentially face a fine.
Deposits taken on or after 6 April 2007

Landlords who took a deposit on an assured shorthold tenancy (AST) after 6th April 2007 and correctly protected and served the Prescribed Information to their tenant do not need to reissue the Prescribed Information to the tenant on future renewals of the AST, or if the AST rolls into a statutory periodic tenancy.

This is so long as the tenancy details haven’t changed (i.e. landlord, tenant and property information) and the deposit remains in the same tenancy deposit protection scheme.

Prescribed Information can include details of a person representing the landlord. The act confirms that where an agent has protected the deposit on behalf of the landlord, the agent’s contact details may be provided in place of the landlord’s."

Brian Jackson

10:10 AM, 18th September 2019
About A year ago

Simple - In future don't take deposits. Total waste of time and effort and unaffordable for many.

Mid Landlord

10:19 AM, 18th September 2019
About A year ago

I had a strange situation with a deposit, and a couple that split up, and a re-issuing of tenancy etc etc (its described on P118 somewhere). Not exactly like yours, but one that left me with questions.... I used Landlord Action for the Section 21, and to review paper work and the procedure I had previously followed. They advised a couple of courses of action

1) Reissue everything, to get signatures on the dotted line, then do the s21

2) Return the deposit (everything else I did was in order) first, then do the s21

I went for option 2. It was risky, but I took a view that the tenant needed to leave, I needed to regain possession to move forward, and it would be "worth it" in the end.

I think getting a professional to help, like Landlord Action, would be a good first step.

Kate Mellor

9:25 AM, 20th September 2019
About A year ago

If a new deposit hasn’t been taken for the second tenancy then wouldn’t the way be clear to issue S21? This deposit is for a previous tenancy that no longer exists and as such must be returned to the tenant(s). Perhaps you could suggest that she uses it to pay some of her arrears. Then issue S21.


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