Deposit Protection Boo Boo – Landlord SOS – HELP!

Why do LL tie themselves up in knots with stupid AST renewals.
Do you think it will keep the tenant if they choose to leave 3 months into the next AST fixed term period!?
Course they won't!
Providing the deposit was protected in the 1st 30 days of receipt of deposit and PI was also issued then no LL need bother with AST renewal.
Legally EVERY fixed term AST proceeds onto a SPT.
No need to reprotect; providing no tenant change has occurred or anything else has changed on AST.
If rent has changed via S13 then no deposit reprotection is required.
If you change rent via a new AST then you need to reprotect and reissue ALL info again; which is why I use S13.
I have never had to reprotect as I have never had a tenant change whilst existing SPT is in force.
If a tenant does not give notice to leave and they are still occupying the property the day after the fixed term AST has finished they are now on a SPT.

I am going to be controversial here but in everyone's better interests. And I am quite happy to take the flak for it and no I am not trying to take away anyone's right to free speech.

But may I suggest that actual specific legal comment, particularly advice, and especially asserive statements that claim to definitely be correct, are only made by actual experienced practitioners such as obviously solicitors but also qualified advisers and consultants like myself and others, or very experienced Landlords with very large portfolios like Mark.

One thing my 20+ years in this industry as one responsible for interpreting rules and regulations, statutes and instruments, the impact of Court decisions etc, is often there is nothing absolutely clear or certain about the LAW. Not unless it has been written so clearly that there can be no mistakes or misinterpretation, or if not until there has been a Court decision preferably in a Court of Record, such as the Court of Appeal or the Supreme Court (ex House of Lords).

There are some statements in this thread, I won't name names but will discuss ther statements, that are probably incorrect or at best not 100% right and if acted upon they at best then invite risk. I realise any coment is presumably made with the best of intentions, for example my views are based not only on my own thoughts and understanding of any given situation, but from better legal brains than mine which I am fortunately able to access for further advice and opinion.

To deal with specifics:-

A renewal is definitely a new tenancy and TDP must be observed accordingly. There has never been any doubt about this and all industry comment stated that post April 2007 and yenancy that renewed, or any periodic tenancy that ceased being periodic and renewed, needed the deppsit protecting or reprotecting. This is in statute and scheme rules.

DC

The deposit "is received" every time a new tenancy occurs. This is the "nano second" issue discussed below and you must think not in terms of physical handling of the money, that is a mistake. The tenancy comes to an end, you receive a new deposit and start all over again. Yes you may not need to do much in terms of the Scheme and actual physical protection, especially if the deposit is with DPS, but the old tenancy ends and a new one starts.

I agree it may be daft, it may be inconvenient, but in my well researched view that is how it is.

In terms of the periodic tenancy it is quite clear that a new tenancy arisesd because the old one ends. So again in my view and that of others (not everyone I accept) the deposit must be re-protected AND the PI re-served (as on a renewal).

Where it gets confusing is the Schemes are only treally interested in the money, either holding it or insuring it (and do remember it is only any disputed amount that is covered by a Scheme's insurance NOT the whole lot if the Landlord has spoent it or the agwent run off with it). Where the Schemes are unhelpful and in my view invite risk, is they only ever talk about reprotecting and what you have to do on the insurance and dates in their systems. They publish a PI temnplate but wash their hands of anything else to do with it.

I am sure many private self managing Landlords think the Scheme issues the PI - in fact from courses I train on I know that is the case.

In terms of a Court decision you will soon get your wish as Johnson v Old was in the CoA on 6/7 March and from memory this massive claim by a tenant - £60K I think - revolved around a series of renewals and either lack of money reprotection of lack of PI issuing or both.

Cases are still awaited to finalise rent in advance is it a deposit, and specifically this PI on a periodic question. But there is no doubt an a physical renewal you must treat it as if it was a first relationship, protect and reissue PI iot is the only way to be 100% safe.

Paul

You are right if the tenancy simply goes periodic the LL doers not have to do anything in terms of renewal itsewlf, it is a personal choice. There are big advantages to doing a renewal and holding a 2 months deposit for the moonlight flit scenario you describe and with which I sympathise. But do you really want a tenant going periodic in September and then able to give a month's notice and leave end December and re-let in depth of winter?

Personal choice but there are pros and cons both sides. What you do need to do though to be 100% safe is reprotect the deposit without any doubt, and in my view re-issue PI.

Why not? Issue and not need to = safety. Don't issue and should have done = claim against you. Post Localism Act no escape so for the sake of a bit ofg ink, paper, effort and a stamp why take the risk?

Up to you all but I know what I would do.

As I say we are all entitled to our opinions, of course we are, but TDP is almost unique in that to comply with the Statute you also must comply with Scheme Rules as stated in the Statute and because Govt in the shape of CLG approves them. But the Statute compliance is always the primary obligation, the Schemes simply offer you the methodology for how.

I Observer you are of course absolutely correct about opinions on here are not mostly quoting any case law.
We as LL use the regulations as provisioned by these schemes and quote as such.
You are correct that they have not been tested by case law.
I doubt very much whether they EVER will be.
What tenant is going to instruct for say £4000; legal costs etc make it untenable.
I could see someone going for such a case if they paid a high deposit, say £2300.00; that could be £8000 and more!
I cannot remember what is the maximum rent an AST can ask before it becomes another sort of agrement.
Something I doubt I will ever have to concern myself with.
I do like the idea of receiving £23000 rent per year though!!!
If I was very doubtful about the validity of these scheme regs I would issue a new DPC and PI everytime I issued an AST.
As far as I am aware there is no admin cost for unprotecting and then reprotecting the same deposit with everything remaining the same on the now SPT.
If a admin fee would be required for every protection I would use 1 year AST with a 6 month break clause.
Having longer AST's is only of use if you have a tenant concerned about their
credit rating because of CCJ's etc for failure to complete contracted AST.
Otherwise you can't stop a tenant leaving in Novermber early.
Even then a tenant would only be concerned if he was staying in the UK.
They might even take a gamble and think the LL won't bother pursuing them through the County Court.
I know I wouldn't; its just a waste of time.
They know most LL don't carry out proper DD on tenants and they will invarably get away with it.
An AST of whatever length gives me absolutely NO confidence that they will remain full term.
Far better for a LL to request notice notification ASAP and hopefully source a tenant.
This is one of the risks of being in this game.
Of course you might be able to commence an RGI claim; though if tenant has surrendered the keys and given a letter stating they have surrendered early I doubt RGI will pay out in that scenario.
Of course when the tenant has gone you could always submit a claim as the tenant seemingly has stopped paying rent and you would need them evicting before you could let out again.
That would take many; many months.!!!
But of course that would be something NO LL would ever do!?
It would be a fraudulent claim; unlikely to be ever found out; but things come back to bite you big time years later..............................................ask Chris Hughne!!!!?
No I'm afraid a LL has to suffer the voids if the tenant surrenders at an awkward time of the yeasr!!

Forgot to mention as MA always advises to try and get a guarantor if you don't go down the RGI route.
In fact to cover the eventuality of a tenant either not paying rent or leaving early it would be better to have RGI on the guarantor and a separate deed for that guarantor on the AST.
You'd be lucky to find a guarantor that would come up for that though!

Paul

RGI on Giarantor is a good idea but I am not sure you can actually get them covered specifically, separately. Far as I am aware the insurer will insist on the Guarantor if the tenant's ststus isn't strong enough to stand alone (or anyway sometimes if they are LHA or students etc) but far as I am aware that is as far as it can go.

The Guarantor standing surety for the tenant. I don't think they can insure that risk down the RGI route but you have come up with a first there my friend no-one has ever asked me that question. Mark as a practitioner will probably know the answer as opposed to me, with my mere theorist/academic input!!

I think the idea that I had was that yes you could have RGI on the tenant; but if they failed then a guarantor would be acceptable.
But if the tenant surrenders early I don't think RGI would be enforceable if the tenant has vacated before the AST expires surrendering keys and handing over a surrender letter.
Therefore you would need a guarantor Deed of Assurance in the event the tenant vacates early; so you can then pursue the guarantor through the courts if necessary for the full rent for the remaining period of the fixed term tenancy.
I suppose this would be what they call a belt and braces job!!
However I think it is all fairly academic.
Guarantors are not easy to find.
For me to find a tenant or guarantor that could pass the RGI check and then for that same guarantor to sign a DOA would be hoping for too much!!?

Hi Paul

You make valid points but you are wrong if you think these issues will never be tested because it is so worthwhile for a tenant to do so. I could give you the name of a really major red hot legal firm who will do a no win no fee claim (which of course is not free you have to pay ian insurance premium in case they do lose, but still peanuts compared to the returns) who of course will only take a case if they think they will win.

But post Localism Act that has turned greay areas and uncertainty into stone walled certainties, because the offence has been committed. If I had to make a guess i would suggest there is a lot of this claiming going on, but because the agent or Landlord sees the hopelessness of their position they settle 'out of Court' by return of deposit and possibly a bit of hush money on top.

This in my view is why there has not been any high profile Court case yet on student lets and money taken now almost a year in advance(!!) and agents and Landlords calling it what they like, but it is a deposit (in my view). Again my guess is cases where someone fails their exams or decides to get a job instead are being handled quietly, and sensibly, with refunds to avoid the uncertainty of Court action.

Only yesterday I was made aware of a case, second I have seen in a year, where on advice a tenant is challenging the wording in a full assured tenancy that it is not specific enough and not quoting a specific amending clause in the 1996 Housing Act and just says it is an Assured Tenancy, which means a full one.

But at Law and by definition an AST is an Assured tenancy!! The case last year was won because it was a poorly worded agreement anyway, and I doubt this one will get anywhere, but the Landlord may cave in and pay back the £3000 deposit involved despite there being £2500 damages he is claiming from the deposit, because the risk is too great.

In terms of tenants leaving and pursuing them I agree with you and even if you can find them do they have two pennies anyway?

But in terms of TDP claims it is a very different picture indeed.

All I say is there is uncertainty, and can that uncertainty until a Judge pronounces one way or the other be catered for? Yes it can by re-protecting (needed for certain) and the re-issuing PI. My bet is if I looked at all the PI forms issued by self managing Landlords on this site I would find errors, usually by omission, in 50% of them.

Either the tenant was given part of their deposit by Granny, who needs to be named as a relevant person (no matter that Little Johnny paid you the money, where did the money come from?) or the post ternancy contact addres is left blank.

You may not have a RP but there is ALWAYS a post tenancy contact address, this is needed by the Schemes. Anyone reading this just have a look at all your PI copies on file and I'll bet 50% of them have one of those two missing hen they should be there.

I have no personal axe to grind either way on these issues, they affect me not one jot. But a number of people who debate on them (not necessarily here on P118 I hasten to add) do so from a vested position of agent or Landlord and thus inconvenienced by extra work or whatever and so counter argue.

Faoir enough but again I'd ask until clarified for certain why take any risk at all? One final point.

Re-issuing PI whether you think you need to or not gives you a second chance and golden opportunity to get it right if there weas an error or omission in the original or previous one. The original offence has still been committed but surely better to take the opportunity to tidy up it has to help the same as protecting late, better than not protecting at all surely?

Paul - surrender comment

Only just seen this.

If you do not accept rurrender of the tenancy, only the keys for re-letting and security and to help limit the tenant's liability, you will or should be able to make a RGI claim because it is rent lawfully due.

Even if you have no post tenancy contact address or it is useless, send a letter stating you do not accept the surrender of the tenancy, and that the financial liabilities continue, to the property address and anywhere else, in an envelope within an envelope, to NoK and bank and employer even the LHA office!!!

You raise some interesting points and i think i am going to ask my RGI company about the points you've made.
I must admit I was only aware of partial deposit requirements by a M Latham post.
Tenants are most bemused when I start giving them reams of identical paperwork because their friend has assisted with some of the deposit.
Yes I could see these speculative no win no fee jobs having a go.
But I don't think many of them have any understanding of the nuances of things like you seem to do!!?...............................................Business opportunity, gamekeeper turned poacher!!
I suppose as economic circumstances inevitably worsen tenants will be looking at ways to screw over their LL.
Students are notorious for this..................................their grapevine seems to work especially fast!!
I think the main thing you are stating; that LL need to be up on their game otherwise they could lose out big time!!!
Being safer than sorry with your suggested protocols would not be unreasonable; though of course extra work is required which as you suggest I doubt many LA would bother with.
Then the poor old LL gets it when it all goes
Pete Tong!!!
It seems as a LL you have to expend as much effort on preventing yourself from being ripped off by tenants as sourcing and managing tenancies.
They NEVER mention all this stuff in the Daily Mail property section do they.......................funny that!!?

Paul

Please post their response but make sure you talk to someone really senior. With all due respect if you get an opinion from whoever answers the phone it may be as in depth and accurate as often happens when you ring a TDP Scheme i.e. not very!!

Make sure the person realises what you are asking. That you are refusing to accept surrender, but the tenant will not be paying. I'd approach it from the viewpoint of an existing claim that they are already paying and then the tenant gives the notice to try and limit or indeed end their otherwise ongoing liability.

Interested you used Petetong near the and - are you the Petetong that post on Letting Agent Today, Landlord Today etc?

Have a nice week-end