Tenancy Deposit Protection – 30 calendar days or 30 working days?

Tenancy Deposit Protection – 30 calendar days or 30 working days?

by Readers Question

Guest Author

9:29 AM, 17th May 2024, About a month ago 9

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Hi all, I found myself in a difficult situation while trying to evict a tenant during a rolling tenancy. The letting agency collected a deposit from the tenant and transferred it to me and I protected it with the Tenancy Deposit Scheme (TDS).

I provided all documents and my legal team prepared the case for a court eviction process. As a surprise, it came to light that the letting agent didn’t protect the deposit before they transferred. I was initially told that they put the deposit into one of the schemes. So, it was protected only after 35 days.

The legal team didn’t proceed with the case and said that the Section 21 is invalid. I approached the letting agent and they insisted that it is 30 working days and not calendar ones.

The legal team advised me that the only option is to return the deposit to the tenant and re-serve Section 21. The issue is that the tenant doesn’t accept the deposit back and does not provide bank details. The TDS repayment procedure is not flexible either, it doesn’t return the money either to a tenant or a landlord unless the tenant agrees with it.

I am now in a deadlock situation. Can you please share your experience if you have been through a similar situation and possible ways forward?

PC Rai


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Comments

Cider Drinker

9:53 AM, 17th May 2024, About a month ago

The legislation only mentions ‘30 days’. It doesn’t mention 30 working days, 30 Mondays nor 30 days when the sun is shining. Your agent is wrong.
If your legal team are eviction specialists, I’d take their advice.
Can you raise the rent? Failing to protect a deposit shouldn’t impact your right to serve a a Section 8.
Why do you want to evict? Is it on one of the grounds available under Section 8?
An eviction specialist will advise,

DAMIEN RAFFERTY

11:55 AM, 17th May 2024, About a month ago

It's 30 days to register the deposit.
Not 30 working days
Hence why the S21 failed.
Back to your Eviction specialist.
Can you speak to your bank and find the account from where the rent is being paid ?

PC Rai

12:21 PM, 17th May 2024, About a month ago

Hi, thank you for your response. There are multiple breach of contract by tenant but not major and no rent arrears and the Sect 8 route wouldn't be strong. The main reason for Sect 21 is that the existing rolling contract was to renewed with a new fixed one following the breakdown of their relationship and the other tenants moved out. Being sympathetic, I agreed for a new tenancy only on condition that a tenant reference passes with a guarantor. She agreed. Subsequently it failed and there was no way she could afford the rent. She didn't want to move out. My insurance (rent) doesn't cover either without successfull referencing.

The reason for not proceeding the eviction process by the legal form is that, there is clause (by another surprise! ) of legal cover which becames valid only if prospect of success is over 51%. They said a judge simply throws away if not protected the deposit within 30 days.

May be I can proceed a legal case myself but never done before and not known the cost. But worried same scenario if it fails.

Hope this gives more background.

Reluctant Landlord

12:28 PM, 17th May 2024, About a month ago

Try another tack??

If you have done referencing/Agent then you should have copies of the bank statements for the tenant. (if you have ICO membership then you can ask agent to release this to you as they should have it if they did proper referencing).

You could send the tenant an email, explaining that you wish to return the deposit. You have asked the TDS to return it, but because THEY are not engaging the TDS cannot directly release it to them. Give them 'reasonable' (7 days?) to respond and allow the TDS to release it to them. After that , rescind the deposit return request with the TDS. Send a copy of the email to the TDS that you send to the tenant.

If they don't initiate the deposit return via the TDS account then you can send the same amount of money to them to their bank account they used at referencing it as DEPOSIT RETURN.

You then have proof you gave notice you were going to return it, they blocked the process to enable you to do this, but the money WAS sent back to them on the basis it was a FULL deposit return.

The S21 only asks to state if a deposit is being held at the time of the S21 being issued (so no it is not anymore ) then you are clear to issue another S21.

PC Rai

13:55 PM, 17th May 2024, About a month ago

@Reluctant Landlord,

The issue is that the tenant doesn't co-operate and reject to accept deposit back (email correspondence). The referencing is now online completed by tenant in her part and no record holds for bank details as that is an optional part. The letting agent doesn't hold bank details.

Discussing with TDS, it can make repayment after 30 days if she doesn't respond but TDS still needs ask bank details which is not going to provide. The option she can also have is the repayment request cancellation by arguing that the tenancy is still valid.

She is playing game and not co-operating.

This is why deadlock situation.

Reluctant Landlord

14:16 PM, 17th May 2024, About a month ago

Reply to the comment left by PC Rai at 17/05/2024 - 13:55
What's the reason whey you are seeking possession - not clear to me exactly.

S8 route - breach of conditions in a tenancy. Find a many clauses in your AST as you can and list them, keeping evidence of everything you wish to rely on. Hopefully you can rely on a mandatory clause?

Can you pay her off to leave?

Michael Johnson - Amzac Estates

16:09 PM, 17th May 2024, About a month ago

Issue the tenant with a bankers draft in her name and make sure you have a witness upon posting the bankers draft through her letter box ( as I doubt she will accept it) also make sure you record the event as well.
Wait for 2 days then re issue the section 21, whilst you have lost the deposit better to eventually get rid of a bad tenant.
Or as has been suggested offer to buy her out of the contract however she wont be eligible for social or council housing so you may be taking substantial amounts
Either way the tenancy deposit is being not being held correctly and it may add insult to injury if she makes a claim against you which you will lose.

Michael Booth

14:28 PM, 18th May 2024, About a month ago

Welcome to the world of btl utter mine field designed to screw landlords, pay legal system and protect tenants at all cost no matter how bad they are.

Jim K

9:02 AM, 21st May 2024, About a month ago

Have you also considered the possibility of civil recovery of 'loss' from Letting Agent?
I don't know if its possible but they appear to have operated at a standard below that which a reasonably competent person would.

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