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Deposit protection - Court hearing

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773 views 4 replies latest reply: 03 January 2017
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Tenant

I will be attending an accelerated possession Court hearing after filing a defence regarding the deposit.

My landlord failed to update the deposit protection when a joint AST I was part of ended and my sole AST began – the deposit protection certificate I have is for the former joint AST.

My question is regarding the deposit itself – would it be deemed ‘received’ for the sole tenancy ?

My fear is the landlord may now turn round and claim he never took it for my sole tenancy. The agent told me at the time that as I was the Lead Tenant under the joint AST nothing need be done about the protection – it could just roll over. My ex was happy for the deposit to be held for my sole tenancy. I now understand the importance of re-protection if a new AST arises – the certificate must match the ‘tenant’ details.

Every fixed term AST I have signed states that the deposit is ‘Already Paid’. There have been five subsequent terms. I no longer have a receipt for the deposit paid under the joint AST so would the fact that it states ‘Already Paid’ be enough proof ? A covering letter from the agent stating that ‘my’ deposit continued to be held with the same scheme accompanied every new AST agreement. However, the scheme itself still has the deposit registered for the joint AST – they have no record of a deposit protected for my sole tenancy.

On the claim form the landlord states a deposit has been protected but the paperwork submitted is for the joint AST.

Could he now – to save himself from a penalty – claim he never meant for the deposit to be taken for my tenancy which could even mean the Section 21 is valid?

How will the judge see this matter at the hearing ? Will the possession be granted ?

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Tenant

I very much doubt a possession order will be issued since the section 21 is a defaulted one. Regardless whether a tenancy is a new one or a roll-on contract, the deposit should be protected each time. In addition,  the term of the tenancy has changed, therefore it should have been protected under the new terms accordingly.

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Tenant

Could he now – to save himself from a penalty – claim he never meant for the deposit to be taken for my tenancy which could even mean the Section 21 is valid?
How can the landlord claim that “he never meant for the deposit to be taken for the tenancy” ? This would require at the very minimum that the deposit is returned to you, as the old tenancy has ended and a new one is formed between only you and him. 
Whether or not they intended to get a deposit for the second tenancy or not is part two. 
By keeping the money, the landlord may only intend to keep a security deposit still – which is then subject to re-protection as the new tenancy agreement is signed. 
HOWEVER: 
In regards to the Section 21 being valid or not, it may be to the discretion of the judge. What I mean by this, is that the re-protection procedure is somewhat of a technicality, if you have been the lead tenant in the previous tenancy. 
An article by Ben Reeve Lewis a couple of months ago suggest that many landlords use invalid Section 21 notices and some even succeed in getting the eviction processed. 
So you have to make sure (usually by getting yourself a solicitor – not us) that you and the landlord have:
1. Signed a new tenancy agreement between you and the landlord, as a replacement to the previous one between you the landlord and your ex.
2. Agreed a type of tenancy – fixed term or periodic
2.1. For fixed term – the landlord can only use the Section 21 notice if the end date on the notice is not sooner than the last date on the fixed term
2.2. For periodic tenancy – the landlord can freely serve a Section 21 notice
2.3. For all tenancies, the landlord must:
-give you two months of time,
-give the notice in writing,
-issue the correct names, -serve you a valid gas safety certificate,
-serve you a valid gas safety certificate,
-serve you a valid copy of the EPC,
-protect your deposit in a government authorised scheme,
-give you the government’s “How to rent guide”
3. Agreed for the deposit to remain as a deposit – this may be implied by the landlord’s behaviour, so I guess you’ve got it covered
4. There have been more than 30 days between the signing of the tenancy agreement and the date at which you applied for the penalty in the court.
 
I hope this helps, but if there is a real threat of becoming homeless, I suggest to speak to a real solicitor, or Shelter at the very least. 
Here is the article by Ben Lewis that I mentioned – http://www.landlordlawblog.co.uk/2016/10/12/shocking-news-section-21-notices-one-year-deregulation-act-2015-came-force/

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Tenant

Thank you for your helpful reply.

As I understand it the Lead Tenant is a point of contact between the scheme, landlord and ‘tenant’  – an admin role as it were – and has no real legal bearing. So the fact that I was a Lead Tenant under the joint AST is neither here nor there – the ‘tenant’ ( as a collective noun ) changed when the sole tenancy began.

Is that right?

 

 

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Tenant

As far as I know, a “lead tenant” is just a “tenant” with no more responsibilities or rights than every other tenant in the property. 

Sometimes, a “lead tenant” maybe a reference to a tenant who has sublet the property to another tenant, therefore creating a hierarchy, where the “lead tenant” is the interim landlord of the actual occupying tenant.

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