DPS – Refund during lockdown?

DPS – Refund during lockdown?

9:55 AM, 21st January 2021, About 8 months ago 53

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Unfortunately, my tenants have moved out without giving notice. I have reason to believe they have returned to Romania.

I had all sorts of problems with utilities etc. and had to get cleaners; decorator; carpets cleaned etc.

I am trying to get the deposit returned from the DPS, but I have to fill out a Statutory Declaration and get it witnessed by a solicitor or magistrate.

Besides the added costs of getting this done, there is also the issue of Lockdown!

Anyone got any advice?

Collette

DPS website >> https://www.depositprotection.com/im-a-landlord/id-like-some-letting-guidance/the-statutory-declaration-process/

The tenant hasn’t engaged with the process, can I still claim for deductions?

If your tenant can’t be contacted, or has failed to respond to your deposit claim 14 calendar days after the tenancy has ended, then you can use the Statutory Declaration process to continue your claim.

The Statutory Declaration

To do this, you’ll need to complete a Statutory Declaration stating the amount you’re claiming, and the reasons why. This must be witnessed by a Solicitor, a Commissioner for Oaths or a Magistrate. If it isn’t witnessed, we can’t accept it and will send it back to you, meaning the process will take longer. You can fill out and print a Statutory Declaration online, or you can give us a call and we’ll post one to you.

Once we’ve received your correctly completed Statutory Declaration, we’ll notify your tenant, letting them know that if we have no response within 14 calendar days, then we’ll pay you the amounts you’ve claimed.

If your tenant responds, and disagrees with your claim, they must complete the notice and send it back to us within 14 calendar days.

We’ll let you know the reasons why they disagree with you, and you’ll then have seven calendar days to accept or disagree with your tenant’s claims and submit any evidence.

All of this evidence, along with the reasoning on your declarations will be sent to our Dispute Resolution Service and an independent adjudicator will make a decision as to the amounts you should both receive.



Comments

by Chris @ Possession Friend

12:22 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Seething Landlord at 24/01/2021 - 11:59
No, Rent is due when the tenancy agreement says so.

by Seething Landlord

14:02 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Chris @ Possession Friend at 24/01/2021 - 12:22
Right, tell that to the judge.

I hope that your agreements were drafted by a qualified solicitor because at least you will then be able to sue him for professional negligence when it all goes pear-shaped.

by Michael Holmes

14:37 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Seething Landlord at 24/01/2021 - 08:51
1 month after the first double payment, so they are always two months ahead and then they run off the extra month at the end.

by Seething Landlord

15:02 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Michael Holmes at 24/01/2021 - 14:37
I was afraid you might say that. What makes you think that a court would not consider the additional month's rent paid at the the outset to be a tenancy deposit?

Have you taken legal advice on the matter?

by Paul Maguire

17:58 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Seething Landlord at 24/01/2021 - 15:02
It's not the paperwork, I do it this way because it's better for the tenant. Most stay for a few years and if the rent goes up their final month of rent is effectively index linked whereas there is no interest paid on deposits. They don't have to wait for their money to be released when they leave if they want to take out a tenancy elsewhere and need money to pay upfont. Until this pandemic many were from abroad and flew home on the last day of their tenancy which is why they preferred their deposit to be used for their last month....absolutely nothing a landlord can do about this so what's wrong with changing the terms to suit the tenant. Taking a deposit is not a legal requirement, taking 2 [or more] months rent in advance is acceptable and I've seen no requirement that states it has to be for the initial months [happy to be advised if otherwise]. The lease [Scottish Model Tenancy Agreement] in my case, states "No deposit" and that the initial payment is for the tenant's first and final month's rent, along with the fact that the tenant has been given the choice ahead of them signing the lease. It's possible that it's not totally pedant-proof but I'm comfortable with it, should I have to go to Tribunal or Court.

by Chris @ Possession Friend

18:20 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Paul Maguire at 24/01/2021 - 17:58Haven't seen your Tenancy agreement Paul but agree with gist of what your saying.
If tenancy agreement is clear that money paid is for Rent, then it's not a Deposit. Hence my earlier qualification of ' depends what tenancy agreement says '

by Seething Landlord

18:24 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Paul Maguire at 24/01/2021 - 17:58
I know nothing about Scottish law or the model tenancy agreement so would not presume to comment on how your wording would be interpreted, but pedantry is second nature to lawyers the world over.

In general terms however your description makes it clear that throughout the tenancy you are holding one month's rent to cover the final payment, which sounds to me like a deposit rather than rent in advance. Obviously it's up to you but your comfort zone appears to stretch further than mine.

by Seething Landlord

18:28 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Chris @ Possession Friend at 24/01/2021 - 18:20
If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

by Chris @ Possession Friend

18:38 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Seething Landlord at 24/01/2021 - 18:28
This is my last word on this subject, as sometimes there's just no getting through to some people !
In April 2013 the Court of Appeal ruled in favour of the landlord in the case of Johnson v Old, concerning the question of rent paid in advance and whether it counts as a deposit requiring protection. ... A County Court judge upheld the tenant's claim, but this ruling was OVERTURNED in the Court of Appeal !

by Seething Landlord

20:01 PM, 24th January 2021, About 8 months ago

Reply to the comment left by Chris @ Possession Friend at 24/01/2021 - 18:38
Sorry to be wearisome but I suggest that you re-read the judgment in Johnson v Old. The facts of the case were quite different from any scenario described in this discussion and the only directly relevant finding is at paragraph 34b, my brackets and capitalisation added:
“It is, I think, common ground that, if part of the payment made on 29 April 2010 was a payment as security for the future payment of (five months’) rent NOT THEN DUE, then and to that extent, the payment was a “tenancy deposit” within the meaning of section 212(8) of the Housing Act 2004.”

If you think in the light of this that rent for a future period, the date of which is not and cannot be known when the payment is made, can be categorised as "rent due" and is not a “tenancy deposit”, good luck. I disagree.


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