Superstrike rules clarity required for 3 times 3 penalty?

Superstrike rules clarity required for 3 times 3 penalty?

13:39 PM, 17th March 2014, About 8 years ago 47

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Hi All,

Looking for some advice….

We (married couple) have been Tenants since 2nd Feb 13 on a 6 month fixed term AST
On 2nd Aug 13 we signed another 6 month FT AST
On 2nd Feb 14 we signed another 6 month FT AST.

Recently due to repairs not being done, gas certificate not being provided, EPC report not provided etc. we sent an email to the Landlord on 6/3/14 highlighting all the issues and included a request for the reference number for our deposit scheme.

The Landlord had not (confirmed proof) protected our deposit of £550.00 until they had received our email on 6/3/14.

On 6/3/14 the Landlord protected our deposit On 10/3/14

I have read the Superstrike case and am confused…. I have been told that each of the tenancies was a ‘new’ FT Tenancy so it would be classed if court proceedings were issued as 3x 1-3x Penalty.
Others have told me that it would be one case (1x) 1-3x Penalty.

My question who is right?

Many thanks

Red3x3



Comments

Leanne Frisby

15:39 PM, 17th March 2014, About 8 years ago

Reply to the comment left by "Romain " at "17/03/2014 - 15:35":

Romain I was after more information and advice.
I thought it best to research as much as possible and thought there may be members on here that weren't members of another forum.
I did not realise I could only ask one forum for advice.

Mark Alexander - Founder of Property118 View Profile

18:49 PM, 17th March 2014, About 8 years ago

Reply to the comment left by "Roy and Tania" at "17/03/2014 - 14:36":

The date issues have now been clarified in the case of Spencer vs Taylor such that it is now any two months notice. Sorry Roy but the section 21-4-A defence you used to thwart possession would no longer work in your favour post the Court of Appeal ruling for Spencer vs Taylor.

I do come to the same conclusion with regards to the maximum claim being 3 times the deposit plus the deposit but I can see the confusion.

I will be very interested to hear what the judge does decide if Red decides to claim three times, i.e. once for each tenancy as this could clear up the ambiguity left in the wake of the Superstrike case.
.

r01

20:07 PM, 17th March 2014, About 8 years ago

Consult a lawyer...... There are more ambulance chasers out there than you can shake a law book at...

Romain Garcin

21:11 PM, 17th March 2014, About 8 years ago

The penalty is per tenancy. It is rather clear especially following Superstrike

However, the judge has now discretion as to the levelof the penalty.
I have anecdotal reference from another forum of a case whereby the judge imposed 3 penalties where the landlord failed to correctly protect the deposit in 3 consecutive tenancies, but limited each penalty to 1x deposit.

Michael Barnes

22:32 PM, 17th March 2014, About 8 years ago

I'm in agreement with Romain: the maximum penalty is likely to be 3 times deposit for each tenancy.

My logic is
1. Each tenancy agreement creates a new tenancy.
2. Superstrike judgement said that the deposit is deemed to be received when the new tenancy started even if no money actually changes hands at that time. Nothing else in Superstrike appears relevant to this case.
3. Deposit must be protected within 30 days of receipt (or deemed receipt following Superstrike).

However, as pointed out above, it is up to the judge what penalty is applied.

The claim should be made for failure to protect the deposit for each tenancy, not for a specific penalty.

I would recommend: consult a local lawyer.

Industry Observer

9:54 AM, 18th March 2014, About 8 years ago

Deary me here we go again, for the last time and please excuse my shouting

THERE IS NO CONFUSION OVER SUPERSTRIKE

OK - everybody got that? What there is basically is wishful thinking and prayer.

Romain is absolutely right each offence is a separate offence so I suggest you negotiate and accpet the return of the deposit and say x6 same amount if it is 3 offences.

The CoA made it abundantly clear what was already in black and white in s5 of the 1988 Act where it refers about 8 times to "a new tenancy arising". Which bit of that does anyone not understand, for a new tenancy to arise the old one must end.

A periodic is a new tenancy just as if it was a renewal, you just don't sign a new agreement.

I still think you will wait a long time for the Law to be changed, because it is clear. What may happen is you may get an amnesty for cases between 6.4.07 and the Superstrike judgement date, but I wouldn't hold your breath on that one either.

Red making a claim is easy you just refer to a s213 claim and suggest the other side consults their solicitors who if they are any good will confirm to them that they are bang to rights and had better negotiate with you. Because if it goes to Court there can only be one winner - you.

If they argue contact Anthony Gold and partners and ask for Philippa

Morals don't come into this - I have an agent client currently who had a tenancy for 3 years no problems at all, returned the full deposit when tenants left 2 months ago, gave them a glowing reference, last week he received an obviously solicitor inspired letter from the tenants claiming x3 the deposit because he had not protected the deposit as usual with Mydeposits. he had served the PI, forgotten the deposit.

How fair is that?

Barbara Thorning

12:56 PM, 18th March 2014, About 8 years ago

Reply to the comment left by "Roy and Tania" at "17/03/2014 - 14:36":

I am only a mere ''amateur" but I thought if the deposit hadn't been protected within the 30 day period a S21 could not be issued. Or is it that if the deposit is protected late there is a 30 day waiting period and then it could be issued. Can someone clarify for me please? Many thanks.

Industry Observer

13:01 PM, 18th March 2014, About 8 years ago

Post Localism Act 2011 if PI has been served but the deposit has not been protected then it has to be repaid and then s21 can be issued.

If deposit has been protected then once PI has been issued the s21 can be served.

Barbara Thorning

13:14 PM, 18th March 2014, About 8 years ago

Reply to the comment left by "Industry Observer " at "18/03/2014 - 13:01":

Thank you. So, if the deposit hasn't been protected and no PI issued, the Agent or LL can't issue a S21? I work with someone in this situation and he believes that if his rent is always up to date he can never be asked to vacate. Is that correct?

Roy and Tania

15:02 PM, 18th March 2014, About 8 years ago

Reply to the comment left by "Tilly Mint" at "18/03/2014 - 12:56":

A LL/LA can serve an s21 whenever they wish, a full 2 months notice must be given with an expiry date coinciding with the end of 6 month AST or the end of any fixed period after this. However, if the deposit has not been protected and/or the PI (with associated leaflet) not served within 30 days of the deposit being handed over - the s21 cannot be valid. This will successfully defend an accelerated repossession order.

However it will be a brief respite; once the deposit is protected and PI served, or the original deposit is repaid, a LL/LA can issue a new valid s21 and this will be enforceable. A LL would still be liable to the 3x penalty for late compliance and any disrepair claim as described by the OP.

In our case, we did not need to rely on Superstrike as the LL/LA had simply failed to provide PI within 30 days of the deposit being handed over. Our LL brought a big barrister, but ours was even bigger (and one of the best in this specialty). An expensive lesson for a naïve young LL who had been poorly advised by a negligent LA.

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