Am I getting the right Section 21 advice – Father provided deposit?

by Readers Question

8 months ago

Am I getting the right Section 21 advice – Father provided deposit?

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Am I getting the right Section 21 advice – Father provided deposit?

I am in need of some advice to either backup or dismiss the current advice received from a tenant eviction specialist.

I have a tenant that we would like to evict from our property. They have rolled onto a periodic, and the original 6 month agreement was signed November 2016.

At the time we supplied all relevant documentation, Gas Safety, EPC, How to Rent Booklet, did the right to rent checks etc etc, all according to advice from here and an RLA checklist etc. The deposit was protected in plenty of time (with DPS custodial), and the prescribed information documentation was served to the tenant at the time.

We have proof of all of this.

Outwardly it would seem that we have no reason not to be able to serve Section 21, which is what the company handling the paperwork is saying.

However, the tenant’s father actually provided the deposit, and he hasn’t been served with the prescribed information. We have text message proof that we have asked for an address for him from the tenant, but we haven’t ever received the address or email or anything, and have no way of contacting him (we just got a payment into our bank account).

The company handling this for us is aware of all of this, and isn’t concerned.

I should be trusting them, but I also don’t want it to fail.

What do the people with experience think?

Ian



Comments

Neil Patterson

8 months ago

RLA Guidence says: "The landlord must also give the prescribed information to any third party / interested party (i.e. someone who has paid the deposit on behalf of the tenant whether in whole or part). For example, a parent may pay the deposit on behalf of a student tenant or certain local authorities may pay the deposit on behalf of the tenant under a deposit scheme which they operate."

"Third Party: Where a third party pays towards the deposit the Prescribed Information must also be addressed to that third party. This should be sent/given to any third party separately."

I am not sure how big an issue this is though so your agent should check directly with the Deposit Scheme for guidance.

For reference I have Tessa Shepperson's articles: Dealing with Deposits >> https://www.property118.com/dealing-with-deposits/

Paul Shamplina: What does the Deregulation act 2015 mean for Landlords? >> https://www.property118.com/what-does-the-deregulation-act-2015-mean-for-landlords/

Neil Patterson

8 months ago

From My Deposits >> https://www.mydeposits.co.uk/serving-prescribed-information-interested-parties/

"As you are aware, landlords and agents in England & Wales must provide their tenants with the Prescribed Information (PI) within 30 days of the tenant paying the deposit.

However, did you know that you must also provide any interested parties with a copy of the PI and note them on the Deposit Protection Certificate, too?
Who/what is an interested party?

Basically, anyone who contributes toward the tenant’s deposit is classed as an interested party. For example, this could be family members of student tenants, or a local authority paying a deposit for tenants on council-operated placement schemes for vulnerable individuals.

However, this does not include guarantors to the tenancy, who would be liable for pay anything outstanding at the end of the tenancy should a tenant default and/or become in arrears for rent etc.

High profile court cases in 2013 brought to light the importance of the PI and, importantly, the onus is on the landlord to be able to provide sufficient evidence that the tenant(s) and ANY interested parties have been provided with the PI, should it be contested.

For more information about the PI and what mydeposits members must do, see our blog on the topic from earlier this year.
How to serve the PI

There are different options for serving the PI to your tenant(s) and any interested parties. They are:

Recorded delivery
First class post
Hand delivered
Sent via email

However you chose to do it, it is vital to keep an audit trail of the above sequence and all other correspondence relating to the deposit protection and tenancy terms. This way you will be covered if your tenant(s) or an interested party contest it, and can be used in court if required."

Mark Prichard

8 months ago

Given that's it's a statutory requirement I'd definitely seek legal advice on the effect of the non-provision of the father's address before lodging the possession claim.

It may be advisable to refund the deposit before reissuing the s.21, so you can avoid a defence on this basis by the tenant.

Blinko

8 months ago

How on earth did you find out that the parent paid the deposit ? Please let us know how you get on with this unusual case and I hope you're successful

Mark Prichard

8 months ago

Reply to the comment left by Martin Youngman at 27/10/2017 - 19:13
I was presuming that the money was paid directly from the parent to the landlord?

Blinko

8 months ago

Reply to the comment left by Mark Prichard at 27/10/2017 - 22:57
Could've been . Given how obscure this piece of legislation is how could one avoid falling foul. Am deposit is a large amount of money to forgo especially if the tenant is a pain

Mid Landlord

8 months ago

Thank you for your comments. I thought that what I was being told by the eviction specialist was only half of the information I needed. Mostly because of my reading on this site.
The payment was indeed made directly by the father into our account, and the tenants told me that would be happening and who would be paying. With my 20/20 hindsight, it would obviously have been handled differently at the time and much pestering would have been done for contact details. You live and learn.
Now I just need to make a decision on the way forward

a) Re-issue the PI (assuming I actually get the fathers contact details this time), then issue section 21.

b) Give the deposit back and issue section 21.

c) Get legal advice about the PI situation and do as necessary, then issue section 21.

Or

d) Risk it and just issue section 21.

To be honest the tenant is a pain, and this will be painful whatever I do. At this point giving the deposit back, issuing a section 21 and getting rid seems like the best option. I am at a point where I see giving the deposit back as almost a worthwhile “investment” in my future without the tenant….. And yes I am aware the “investment” will also include refurb costs etc.

Jireh Homes

8 months ago

Suspect many occasions where deposit paid by parent and the LL not aware, as simply a BACS transfer into bank account. Would be interesting to hear the guidance from the deposit schemes on this scenario. Allan

Rob Crawford

8 months ago

The DPS Custodial Prescribed Information form does specifically ask for third party details. If you have asked for the information and it has not been forthcoming (and have evidence of the discussion) I fail to see that it would stop you proceeding with a section 21 especially as it would appear that all other aspects are correct. You may be making more of an issue of this than necessary. The "company handling the paperwork is not concerned", I wouldn't be either. Good luck.

Mark Prichard

8 months ago

Reply to the comment left by Mid Landlord at 28/10/2017 - 11:17
I suspect, as you indicate, that option (b) will be preferable as it has the advantage of certainty.

Your case perhaps highlights the importance for landlords of:
(a) asking tenants to confirm who is paying the deposit, and
(b) not proceeding to grant the tenancy in a situation where a third party is paying the deposit directly to you, but you haven't obtained/confirmed their address for service of the prescribed information notice.

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