How do I fight back after hearing went badly?

by Readers Question

4 years ago

How do I fight back after hearing went badly?

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How do I fight back after hearing went badly?

I served section 21 to my LHA tenant and possession order was granted and hearing day was set last month.

On the hearing day, the lawyer representing the tenant argued that I should have issued deposit info again when the fixed contract ended and the tenant lapsed to periodic contract. The tenant has up to the 15th to submit the full argument and of course cost.

My question is how do I deal with the situation? How do I fight back? I need the tenant out regardless.

Thanks

Ciruhearing



Comments

Paul Franklin

4 years ago

You cannot serve a S21 if you haven't complied with the requirements to protect the deposit and issue the prescribed info to the tenant within 30 days.

The only way round it is to return the deposit in full or with agreed deductions. You must do this and serve the s21 again.

Alternatively if there are reasons for a S8 notice, e.g. 2 month's arrears, you may still serve aS8 whether or not the deposit has been returned or is protected.

Harlequin Garden

4 years ago

I've told that you don't need to redo the deposit protection if your tenant goes into a periodic tenancy - what is correct?

Paul Franklin

4 years ago

Reply to the comment left by "Harlequin Garden" at "20/01/2015 - 18:47":

If your tenant's fixed term ends but he/she continues in the property as a statutory periodic tenant you need to ensure you re-issue the prescribed information and ensure the deposit is still protected - just like it's a new tenancy and as if you have just recieved the deposit.

Dr Rosalind Beck

4 years ago

I'm also not clear on this.
So, for example, a tenant has a three month tenancy, and you give them the prescribed information with the tenancy agreement, and you put the £400 say, with the DPS. Do you then have to send a further copy of just the prescribed info part (we have it at the back of the tenancy agreements) and get a proof of postage (what a waste of paper, ink and stamps), and just leave the £400 deposit where it is with the DPS and no further action required?
Also, if the fixed term lapses on say the 30th of December, by when must the prescribed info be re-issued? And what are the consequences of not doing this?
NB. Regarding the deposit - as long as it remains with the DPS I assume we're not open to the possibility of being sued for up to three months rent?

Paul Franklin

4 years ago

Reply to the comment left by "Rosalind " at "22/01/2015 - 09:25":

Yes Rosalind, you do. We have been told exacty that in case law Superstrike v Rodregues. If the tenancy becomes a stat periodic tenancy after an initial fixed term, this is deemed to be a new tenancy. As it's a new tenancy the deposit you still hold is deemed to have been recieved in respect of the new tenancy. Therefore you have 30 days from the day you recieved the deposit (i.e. the date of the new stat periodic tenancy) to protect the deposit and issue the prescribed info.

The time limits and penalties for non compliance are oulined in the housing act 20014 s213-s215. You have 30 days to protect it and issue prescribed info from date of reciept of the deposit. The penalties are that you cannot serve s21 if either you have not protected it or not served prescribed info within the 30 days. Unless you return the deposit in full or with agreed deductions. The tenant can also take court action to have the deposit returned along with a penalty payment of between 1 and 3 times the amount of the deposit. It's not 3 month's rent, it's up to 3 times the amount of the deposit. And yes, you haven't just got to protect it, you must re-issue the prescrived info too within 30 days of reciept.

The likelihood of your tenant suing you not not issuing the prescribed info is slim and the likelihood of the court imposing a penalty of the maximum of 3 times the deposit I would say is even more slim, but that's just my opinion.

Alan Loughlin

4 years ago

all this ridiculous nonsense is why we no longer take deposits, just too much hassle and risk, so we charge a fee instead, call it an admin charge, make sure zero deposit is written on contract, bank the money and whatever hapens we keep it.

Eviction Group

4 years ago

The comment by Alan re iterates what appears to be a growing trend amongst Landlords. On the face of it from the LL perspective it does to seem to make sense for them. An option whereby there is less room for error or oversight regarding statutory regulations is one more seem to taking up.

Alan Loughlin

4 years ago

the deposit system is broken, and tenants are so savvy now that any error, however small, and however unintentional is used to rip off the landlord big style, the system that allows this can only be described as broken, and the judiciary should be ashamed to be part of such a scam.

Dr Rosalind Beck

4 years ago

Reply to the comment left by "Alan Loughlin" at "24/01/2015 - 08:11":

Alan. So if the rent was £400 for example, what admin fee would you charge? I wonder if this puts quite a few tenants off as they're not stupid and will see the difference between a deposit they will get back and an admin fee that they won't. I think you may therefore lose out financially by deterring quite a few tenants and having longer void periods.
I do think we have to take either a deposit or an admin fee though as you do, because I find we have to use the deposit quite often, usually when tenants don't pay their last month's rent. And they have usually disappeared into the ether when that happens and we have to go through the ridiculous rigmarole of finding a lawyer to sign and 'vouch for us' or whatever else the purpose of this stupid procedure is. What's a lawyer? God? That they can decide we should have the money - rather than the DPS judge in our favour when we ask for it and they get no reply from the tenant.
On another point, I would have thought it was logical that if the deposit is deemed to still be protected when the tenancy becomes periodic, then the PI should also be deemed to have been served. The tenancy agreement is also deemed to still be valid... Why is the PI seen as different? I would hope someone will challenge this again (sorry but I didn't read about Superstrike - just kept hearing references to it and didn't want to face reading up about some other annoying anti-landlord ruling).

Alan Loughlin

4 years ago

most of our properties are one bed apartments which we rent for 500 to 530 pcm and we charge 295 fee, on the houses we rent, at atound 975, we charge 500 fee.

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