Section 21 and late deposit protection into SPT period

by Readers Question

11:32 AM, 2nd March 2015
About 4 years ago

Section 21 and late deposit protection into SPT period

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Section 21 and late deposit protection into SPT period

I would just like to clarify something unequivocally if you can please –

I thought it was set in stone that a section 21 notice cannot be valid if the deposit was protected late (unless the deposit has been returned etc etc.). But I have been told this: As my tenancy has rolled on to a SPT (in effect, a new tenancy) the late protection of the deposit doesn’t matter when it comes to a section 21 because it pertains to the old AST. The deposit is deemed to have been protected on time with regards to the current SPT as it was already protected by the TDS when the SPT started, therefore my section 21 IS valid. Can that be true?

Thanks for any help.

JamesLate



Comments

Neil Patterson

11:38 AM, 2nd March 2015
About 4 years ago

Hi James,

I would of thought that the section 21 cannot be valid because the deposit wasn’t protected in the first place.

However, I've never come across this exact scenario, is it possible that because the deposit was protected when it became a STP that this would be looked at as a new tenancy and therefore the section 21 would be valid.

I didn't find at a quick glance any case law and without that couldn’t give a 100% accurate answer.

Maybe my learned readers can help 🙂

Dr Rosalind Beck

14:27 PM, 2nd March 2015
About 4 years ago

I'm wondering why you don't want the Section 21 to be served.

Anthony Endsor

14:29 PM, 2nd March 2015
About 4 years ago

My understanding is that if a deposit has been protected late, it is different to it not having been protected at all. Yes the Landlord is still liable to be fined 3 times the deposit, etc, but for a Section 21, it can still be served as long as it doesn't start until the last day of the tenancy, whether it be SPT or not.
Yes an SPT is looked upon as a new tenancy, but for late protection wouldn't make any difference to the overall position, as the Landlord's liability to a fine is not taken away.
I can't see how it could be right that if a Landlord was say a month late protecting a deposit, they could never evict a tenant.

James Pond

14:40 PM, 2nd March 2015
About 4 years ago

Reply to the comment left by "Rosalind ." at "02/03/2015 - 14:27":

Quite simple Rosalind - we don't want to move out! Not only that, we have been treated disgracefully by the letting agent since day one (almost 3 years). And the section 21 is purely a spiteful and retaliatory move by the LA for not wanting to pay their ridiculous fees (for doing precisely nothing).

James Pond

14:48 PM, 2nd March 2015
About 4 years ago

Reply to the comment left by "Anthony Endsor" at "02/03/2015 - 14:29":

I don't think it's a case of never being able to evict a tenant. Correct me if I'm wrong, but my understanding is that a section 21 CAN be valid when a deposit has been protected late, but the deposit must be returned first.

Please understand that my concern at this point is not make a quick buck from the agent's late deposit protection, but to defend the section 21.

Romain Garcin

14:55 PM, 2nd March 2015
About 4 years ago

James, if you have been served with a s.21 notice and want to file a defence should your landlord start court proceedings, I believe that you know what to do.

The question is really only how likely you would be to succeed.

In law, I would think that the notice is probably valid if it was served after the statutory periodic was created.

If your landlord's agent has been treating you disgracefully for 3 years perhaps your best option would be to look for another property in any case.

Anthony Endsor

15:07 PM, 2nd March 2015
About 4 years ago

Reply to the comment left by "James Pond" at "02/03/2015 - 14:48":

Yes I think you could well be right there, in that the deposit would have to be returned first.
Defending a section 21 is almost impossible really, as it can be served without fault on either side, i.e. if the Landlord wants to sell the property. I understand you not wanting to move out, but with the correct notice, the Landlord is within his rights.
It would be difficult to prove a retaliatory eviction, so I'm not sure what lengths the court would be prepared to go to in order to allow you to stay in the property.

James Pond

15:20 PM, 2nd March 2015
About 4 years ago

Reply to the comment left by "Romain " at "02/03/2015 - 14:55":

Indeed that is the question - how likely would we be to succeed in invalidating the S21 on those grounds (I believe there may be other grounds too).

I realise it's only a matter of time before we have to move out, but we would like to buy as much time as possible.

Truth is we like living here and don't want to move out. I can cope with the incompetent agent, always have.

James Pond

15:26 PM, 2nd March 2015
About 4 years ago

Reply to the comment left by "Anthony Endsor" at "02/03/2015 - 15:07":

As far as I'm aware, retaliatory eviction is not an offence anyway (yet). It's just a case of invalidating the section 21 if we can, we want to buy some time.

I must have read about the late deposit protection invalidating a section 21 on a hundred different sites, but nowhere does it state that it only relates to the period of tenancy that you are actually in.

Jan Martin

16:18 PM, 2nd March 2015
About 4 years ago

My understanding is that you need to return the deposit to the tenant and then issue your section 21.

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