Deposit Protection Boo Boo – Landlord SOS – HELP!

If it turns out that you unprotected and re-protected the deposit when it wasn't necessary to do that I have no idea what the implications are. That's why I'm suggesting you email MyDeposits to ask.

I can't see any logical reason why that would result in problems for you though.

I suggest that you send the tenant a copy of the original Deposit Protection Certificate now, explain that you've realised that a new contract was never actually entered into and that you accept her 30 days notice and will be deducting damages from her deposit. Expect her to take this to adjudication and get your paperwork straight.

Good luck!

Thank you, I will get straight on it tomorrow at work. You have been VERY helpful!

You are very welcome. I have Tweeted a few other industry experts and requested their help, just in case I've missed something. Please look out for responses from MyDeposits, Industry Observer and Mary Latham amongst others as I hold their opinions in very high regard.

Thank you,thank you, thank you.

You are very welcome, now please help us to maintain this level of support and sharing of best practice by joining "The GOOD Landlords Campaign" - see >>> http://www.property118.com/index.php/sponsor-the-good-landlords-campaign/

1. Your tenant has been holding over on the terms of the original tenacy UNLESS A NEW TENANCY WAS CREATED.
2. A new tenancy can be created
i By writing (which is not the case here as no tenancy agreement has been signed by either party
ii By express grant of an oral tenancy (in the case of a tenancy for 12 months or less, I believe) - but distinguish an oral agreement to enter into a new tenancy agreement, which in law is not an agreement. I suspect that in your case you may have orally settled terms for the grant of a new tenancy to be recorded in writing and that of itself, in the absence of the duly completed written tenancy agreement or performance (see iii below), is insufficient to create a new tenancy.
iii By performance. If at the end of the original tenancy the tenant continued in possession ON DIFFERENT TERMS FROM THE ORIGINAL TENANCY then my view is that a new tenancy has then been created notwithstanding the lack of written or express oral new tenancy. For example, if during the second 12 months the tenant paid and you accepted rent at a higher rate than the rent which would be payable under the terms of the original tenancy, then a new tenancy has been created and I cannot see you successfully arguing otherwise.

It appears to me that so far you have not disclosed anything on the blogg which esablishes that a new tenancy was created and there seems to be every chance that it was not and that the tenant was merely holding over on the terms of the original tenancy.

If it is the case that there has been no new tenancy and the tenant has been holding over on the terms of the original tenacy then it may be that you were not required by the rules of the deposit scheme to reprotect the deposit. I have not really considered this as I have never had to . My impression is that NOW you no longer have to re-protect the deposit where a tenant is holding over BUT I DO NOT THINK THIS HAS ALWAYS BEEN THE CASE WTH MYDEPOSITS. I would try to clarify the position with them first, but do not take their advice as gospel - at least until you have checked chapter and verse. Mydeposits are administrators of a scheme and I suspect that they lack a competency to give reliable advice or anything other than general guidance in relation to the scheme.

A further point in relation to the deposit. I have not checked but I seem to recall that mydeposits do not unprotect a deposit immediately upon a landlord's application but that there is a procedure to be followed after bthe application before the deposit is treated as unprotected. Also in at least some procedural matters mistakes can be corrected with retrospective effect.

Which brings me to a final point. You seem to be at some risk of a substantial loss of an extortionate politicised fine + the loss of deposit retention. Early legal advice is essential and there are some very competent law firms with some expertise in this field . You cannot risk effecting a strategy without very sound advice FIRST. Bloggs are full of opinions but not so full of reliable advice and it can be difficult to distinguish. You are considering questions of law and legal interpretation.

This is very interesting, thank you. I have however woken this morning with the thought that I should just give the full deposit back and tell the tenant that the stress and worry is just too much and leave it at that, and hope if I do get dragged to court for the matter of 30 days re protection business, I will have enough evidence to pull through unscathed! I will do some more research online and by phone before hand. But at the moment want to give up.
We are a small family run company that's more interested in happy tenants that can afford to comfortably live in our properties. This is a real blow.
I can't profess to understanding all of the legal details that have to be followed these days, but am constantly learning! You must remember that some of us get rolled into the family business without the option of walking away when things get rough, I have got to learn and move on! And learning I am! I will let you know how I get on.
On the bright side.....I have lost 6lbs in under 2 days! Not my chosen form of diet though I must say!!

It seems you are aware, but I just make it clear that repaying the deposit will have no bearing on the question of penalties for default in registering the deposit: it could be a worthless gesture. Now that your tenant is aware of the possibilities is she not going to run with the matter anyway? I don't see that she has anything to lose even if her complaint comes to nothing, and she has much to gain if it succeeds.
Repaying the deposit will probably not have the stress-relieving effect you hope for: it might even compound the stress if the gesture proves ineffective.
Much better to take the proper advice first so that you make the correct decisions to achieve what you want: knowing with some certainty your legal position will itself relieve you from a lot of distress, I suspect much of your distress flows from uncertainty as to what your position is in law and as to the effective courses of action open to you.
The knowledge obtained from taking proper advice may also be regarded as an investment for the future.

Good morning Josie. I was always taught that the best way to deal with bullies is to stand up to them. If everything you have said in this thread is true then you are dealing with a bully. Your tenant is bullying you into letting her get away with damaging your property and is trying it on in terms of trying to screw more money out of you. Now we all know what happens if we don't stand up to bullies don't we? Yes they come back for more if they think they can get away with it.

How will you feel if you refund the £1,000 and let this woman off paying for the damages if she still takes you to court over the deposit protection issue? From what you have said there's a 99% certainty that you will win at court in my opinion and you will then realise that there was no need to refund her deposit or let her off paying for the damages. How gutted will you feel then?

I've thought a lot about your predicament and talked to several colleagues about it. From what I know, the biggest mistake you may have made is unprotecting and re-protecting a deposit when you didn't need to. On the basis that a person might decide to change deposit protection providers there can be nothing in law which makes this illegal. In fact, some would argue that a statutory periodic tenancy is a new tenancy and that you should re-protect the deposit or at least issue new prescribed information. This has never been tested in law so that's never been proven anyway.

Therefore, in conclusion, what you do now is up to you. Only you know for sure what really happened and how much grief this tenant is causing you. However, bear in mind that there is no guarantee that your tenant will thank you for refunding her deposit and letting her off with paying for repairs. It might just encourage her to push you even harder.

I do sympathise with you if you don't enjoy being a landlord and have been sucked into the business to support family. However, what I can tell you is that over time you become numb to these scenario's and if you are anything like me you will grow to love the business. I had no idea what I was getting into in the early days and I agree that it's a constantly learning curve, I still learn something new every single day as a result of this forum. The very fact that I have the time to run this forum now though (which I love by the way) is due to me now reaping the rewards of having been in this business for nearly quarter of a century, or to look at it another way, I've served a life sentence and I now have my freedom 🙂 well financial at least!

Please contact MyDeposits, see what others post here when the Newsletter goes out tonight and make a decision on what to do on Monday.

PS - if you do decide to pay for professional legal advice to back up my recommendations as per Robert Cummings suggestions, then I recommend Tessa Shepperson at Landlord Law or Paul Shamplina at Landlord Action. If you are in Scotland please let me know and I will refer you to some good legal contact there.

It would be worth speaking to MyDeposits and confirming that there has been no time since you first protected the deposit that it was unprotected. If you cancelled the protection and reprotected it a few minutes later there should not be a problem. If there was a gap between unprotecting and reprotecting you will have broken the law.

There is no legal reason why a landlord cannot stop one protection and begin a new one during a tenancy just so long as the date of each is the same and the new protection cetificate and prescribed information are given to the tenant without delay. The 30 day rule applies to the date that the deposit is paid to the landlord and cannot be relied upon in the above circumstance.

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