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My eviction part 3 (or 4?!)

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AleisterCrowley
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Re: My eviction part 3 (or 4?!)

#158256

Postby AleisterCrowley » August 9th, 2018, 3:11 pm

You possibly haven't read the whole thread - if they hadn't protected the deposit the S21 would have been invalid, and they would have been legally obliged to return the deposit in full before serving a new S21 (or I could have negotiated a date/settlement)

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Re: My eviction part 3 (or 4?!)

#158259

Postby Infrasonic » August 9th, 2018, 3:36 pm

AleisterCrowley wrote:You possibly haven't read the whole thread - if they hadn't protected the deposit the S21 would have been invalid, and they would have been legally obliged to return the deposit in full before serving a new S21 (or I could have negotiated a date/settlement)


So are you now accusing the agent of having forged the TDS document? What good would that do them when the TDS is an independent body with their own records?

You're on a statutory periodic tenancy, you get the deposit back at its termination after a final inspection (if they bother) and the LL/agent don't raise any damage issues that would go to tribunal ( for which they would need forensic level evidence to win if my experience is anything to go by...)

I'm a Landlord, I've dealt with TDS, AST's, periodic tenancies, S21, Section 8, Section 13 for the past few years with multiple tenants via an agent, and previously dealt with specialist property solicitors as a tenant, ending up with a pay off of £2K from the LL when in a similar position to you (but crucially on an Assured Tenancy, not an AST.)

I'm telling you what happens in the real world, which is all you really need to worry about, rather than a load of theoretical legal maybe's that are irrelevant in 99.9% of cases.

If you just want to argue the toss from a position of ignorance then that's fine but it isn't really helping your understanding of the situation is it?

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Re: My eviction part 3 (or 4?!)

#158263

Postby AleisterCrowley » August 9th, 2018, 4:12 pm

So are you now accusing the agent of having forged the TDS document? What good would that do them when the TDS is an independent body with their own records?

Ermm, no, where do I suggest that?
I'm saying they have protected the deposit, but didn't inform me at the time
If they hadn't protected the deposit I would have been in a marginally better position, as they would have been obliged to return in full , whereas with the deposit in a scheme there's a risk (perhaps small?) I may not get 100% back

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Re: My eviction part 3 (or 4?!)

#158267

Postby Infrasonic » August 9th, 2018, 4:19 pm

AleisterCrowley wrote:So are you now accusing the agent of having forged the TDS document? What good would that do them when the TDS is an independent body with their own records?

Ermm, no, where do I suggest that?
I'm saying they have protected the deposit, but didn't inform me at the time
If they hadn't protected the deposit I would have been in a marginally better position, as they would have been obliged to return in full , whereas with the deposit in a scheme there's a risk (perhaps small?) I may not get 100% back



This is my last post because we are going round in circles here...
TDS protects the tenant, that's why it was created.
Therefore you are far better off having your deposit with the independent TDS rather than with the LL or agent who can come up with any old excuse not to return your full deposit.
The only way the LL or agent can stop you getting 100% of your deposit back with TDS is to provide irrefutable evidence of 'damage' and go to a TDS tribunal.
I did that as a landlord and lost...

Please tell me you now understand as I'm losing the will to live here... ;)

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Re: My eviction part 3 (or 4?!)

#158271

Postby AleisterCrowley » August 9th, 2018, 4:29 pm

Well, as I'm renting through an agent the absolute, enforceable legal requirement to return my deposit in full would have been good enough for me, although it may have involved having to take it to court (probably not)
You are more confident that me that the protected deposit is 'almost certain' to be returned in full...

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Re: My eviction part 3 (or 4?!)

#158272

Postby swill453 » August 9th, 2018, 4:29 pm

Infrasonic wrote:Please tell me you now understand as I'm losing the will to live here

I get the nuance of his position, in that he would have been in a strong position if the deposit wasn't protected, perhaps slightly stronger than otherwise, because of the extra protection the law gives to tenants whose landlord has cocked up in this way.

Scott.

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Re: My eviction part 3 (or 4?!)

#158275

Postby AleisterCrowley » August 9th, 2018, 4:32 pm

Yes, that was entirely my point

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Re: My eviction part 3 (or 4?!)

#158276

Postby GoSeigen » August 9th, 2018, 4:35 pm

AleisterCrowley wrote:Clarity of thought is not my strong point, but if they hadn't protected the deposit I'd be in a stronger position.
The fact they have now proved they have protected it leaves me at the mercy of the TDS dispute resolution process if landlord decides to make a bit of extra profit on the sale by witholding some of the deposit


He won't.

GS
EDIT: to contribute to today's discussion, without TDS protection, yes, you'd be entitled to get your full deposit but it would be held by the landlord and you would have to make him give it back, perhaps by going to court if he were a scumbag. With a TDS the landlord has no access to the money and can only dip into it if he proves to the scheme that he is owed something, which as others have explained is close to 0 probability -- unless there is something you are not telling us.

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Re: My eviction part 3 (or 4?!)

#158282

Postby Infrasonic » August 9th, 2018, 4:45 pm

AleisterCrowley wrote:Well, as I'm renting through an agent the absolute, enforceable legal requirement to return my deposit in full would have been good enough for me, although it may have involved having to take it to court (probably not)
You are more confident that me that the protected deposit is 'almost certain' to be returned in full...


Jeez.

No I'm telling you how it works in practise having tested it out in real life with a legitimate damage claim that got knocked back by the TDS tribunal.
The agent warned me in advance that TDS tribunals are heavily stacked in the tenants favour...

All parties are legally bound by the TDS tribunal decision.

Which part of my explanations in any of my posts is ambiguous? None of them (unless your cognitive dissonance is so strong that you refuse to be told...)

Bye...

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Re: My eviction part 3 (or 4?!)

#158284

Postby AleisterCrowley » August 9th, 2018, 4:48 pm

Probably moot as the deposit is now proven to be protected, although I rather feel my position would have been marginally better if the S21 had been invalid, given a sale has been agreed.

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Re: My eviction part 3 (or 4?!)

#158285

Postby AleisterCrowley » August 9th, 2018, 4:59 pm

Infrasonic wrote:
AleisterCrowley wrote:Well, as I'm renting through an agent the absolute, enforceable legal requirement to return my deposit in full would have been good enough for me, although it may have involved having to take it to court (probably not)
You are more confident that me that the protected deposit is 'almost certain' to be returned in full...


Jeez.

No I'm telling you how it works in practise having tested it out in real life with a legitimate damage claim that got knocked back by the TDS tribunal.
The agent warned me in advance that TDS tribunals are heavily stacked in the tenants favour...

All parties are legally bound by the TDS tribunal decision.

Which part of my explanations in any of my posts is ambiguous? None of them (unless your cognitive dissonance is so strong that you refuse to be told...)

Bye...

You seem to be arguing against points that I haven't made...
I havent accused the agents of forging the TDS details
I haven't said any of your posts are ambiguous
Your position is I'm better off in the scheme.
My position (based on learned advice) is that I may have been marginally better off if the agent had screwed up invalidating the S21. It could be the difference between 100% certainty and 95% certainty: hardly an ideological gulf...

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Re: My eviction part 3 (or 4?!)

#158362

Postby JonE » August 9th, 2018, 9:05 pm

AleisterCrowley wrote:Probably moot as the deposit is now proven to be protected, although I rather feel my position would have been marginally better if the S21 had been invalid, given a sale has been agreed.


Wood for trees? You are, in practice, in a strong position - and without having to be seen as calling on strict application of the law to establish that.

The landlord has a buyer going through the process. Selling a property can be stressful and the vendor wants things to run smoothly and not risk losing the buyer that's on the hook. There's a heck of a lot of loot at stake.

Fortunately, the letting agent seems to have some sort of clue regarding correct procedures. If they are also acting as selling agent then so much the better as they can advise/steer the landlord with fuller information to hand - and they really, really want this sale to go through so as to collect their cut asap. You also want it to go through to avoid further viewings while you're still there and other disruptions.

Exchange typically commits the vendor to complete on a specified date with vacant possession. A landlord would be daft to exchange without having already achieved vacant possession as that would be creating a potentially very expensive nightmare. Some tenants have been paid a significant bounty (and given good references) in return for moving out before completion where the landlord has foolishly taken the risk but the tenant hasn't obligingly chosen to move out when the LL had hoped.

A rational landlord and even a semi-competent agent don't want to risk the deal falling through for the sake of a few hundred quid. The agent is aware of the condition of the property and would very strongly 'suggest' that the vendor/LL not attempt to claim any deduction from the deposit: remember that it's for him to justify a deduction rather than for you to fight for its return. The length of tenancy makes it inordinately difficult for him to meet the requirements in order for a deduction to be approved. Don't lose sight of the fact that LL and agent want this to all go smoothly and as swiftly as possible and would prefer to maintain your goodwill. Considering what's at stake for them, they could start to get nervous if the perception arose that you were becoming difficult. Nobody needs that: things get so much more complicated and stressful all round if folk start getting nervous.

In your position and if I still had the same concern then I would most definitely continue to pay the rent per the agreement and probably email the agent (who, after all, has been conducting periodic inspections and perhaps even the recent viewings) to confirm that they know of no reason why I shouldn't receive the return of my deposit in full as I need that reassurance for personal budgeting purposes regarding my impending move within the area. Both may be mollified by my implied acceptance that I'll be moving out and the agent may even see in that wording the opportunity to let another local property to me and that may prompt them further to suppress any irrational inclination on the part of the LL to claim on the deposit (financial self-interest usually being an agent's sole motivation).


Just as an aside in response to something you wrote much earlier, there has never been any requirement for a landlord to spend deductions from deposits on rectification of specified damages. The general idea is to put the landlord back in the position they had in financial terms at the start of the tenancy BUT subject to fair wear & tear, etc. Given such a lengthy tenancy period there'd need to be impressive proof that you'd recklessly or negligently trashed things pretty badly as significant dilapidations would reasonably be expected with the passage of time - and the letting agent has had plenty of opportunities over the years to bring to your attention any 'problems' that they felt could be attributed to you. All things considered, I would commend to you Alfred E. Neuman's maxim: "Quid, me anxius sum?"

Cheers!

AleisterCrowley
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Re: My eviction part 3 (or 4?!)

#158397

Postby AleisterCrowley » August 9th, 2018, 11:03 pm

Thanks, JonE, for a most useful post. Appreciate the effort.

I do want it all to go through smoothly with minimum hassle - but there is the nagging worry that they'll try to pull a fast one re the deposit eg I'll get charged for a new sofa and mattress to replace the throughly knackered >17 year-old IKEA efforts.
Your comments, and those of previous posters, reassure me somewhat - but.... I assume the deposit is returned (or not) at some point after the end of the tenancy, by which time I've lost any leverage as the sale will have gone through.
I do take the point that they'd need a strong case to make any deductions after so many years

Just as an aside in response to something you wrote much earlier, there has never been any requirement for a landlord to spend deductions from deposits on rectification of specified damages. The general idea is to put the landlord back in the position they had in financial terms at the start of the tenancy BUT subject to fair wear & tear, etc
The landlord is going to get £xxx,000 for the sale, which is 'agreed' - it's not like there's a hole in the wall caused by me which needs to be made good before the sale goes through. Or would the courts not see it that way !!


I've no intention of witholding rent payments - I pay by monthly Standing Order in advance so can conveniently cancel after the September payment goes over on 27 August.

Fingers crossed... the buyer's dad is coming round to have another look next week, hopefully just to measure something

Regards
AC

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Re: My eviction part 3 (or 4?!)

#158412

Postby JonE » August 10th, 2018, 1:35 am

AleisterCrowley wrote:The landlord is going to get £xxx,000 for the sale, which is 'agreed' - it's not like there's a hole in the wall caused by me which needs to be made good before the sale goes through. Or would the courts not see it that way !!


Let's say there now is a hole which you have made in an otherwise perfectly good wall. Any reason for making good the hole in the wall is not relevant. The LL may be about to sell or to re-let or to move in himself or leave it vacant or knock down that wall to create a large room from two smaller rooms - but none of that is relevant. The position is that it can be demonstrated that there wasn't a gaping hole in the wall when the tenancy started but, due to your actions, there now is.

No amount of reasonable wear & tear could explain that gurt big hole now existing so I'd expect you to be responsible for compensating the LL for the damage you caused - and that could be quantified as the estimated reasonable costs of rectification so that the LL's asset could be restored to the condition in which you took it over (with no betterment). Whether he chooses to do that work is up to him.

Given that there isn't actually a hole in any wall then if your LL does seek to claim some compensation from your deposit (but would he really want that hassle while the big-ticket sale is in progress?) and you and he simply can't agree then the matter is handled by whatever alternative dispute resolution service is provided by the TDS which is holding your deposit (and which you've now identified so you can check their website for specific detail). The TDS will continue to hold the sum claimed until the arbitrator reaches a decision but will return the balance of the deposit to you in the meantime. The process is defined and the impending (if all goes well) sale does not in itself give you any leverage whatsoever with regard to the deposit - what leverage do you imagine you might have and how would you intend to use it? You could, I suppose, remain in occupation after the notice has expired and hope to gain leverage of some sort in that way to achieve some other aim - but I can't imagine you'd want all the hassle and drama that would bring.

You will not be expected to pay for new sofa and mattress to compensate the LL for the deterioration of 17 y-o furniture - the whole concept of allowing for 'fair wear & tear' exists to ensure that doesn't happen! If the LL even contemplates that then the agent will inform him (with some force, I'd imagine) that his chances of any such claim succeeding are between nil and zero. Fag burns, rips and unshiftable wine/coffee stains on 6-month old items could be a different matter.

It would be usual for the sale contract to require the vendor to remove all furniture and similar (though the vendor will have completed a standard form stating what fixtures, fittings and so on are to remain). He'll be very happy to get you and all the furniture out of there in a timely manner and to get his hands on the big bucks from the sale. From the sound of it he'll be scrapping the furniture and won't give two hoots about the condition of it anyway. I used to replace sofas and mattresses during voids after a few years to avoid deterring potential tenants and, in the case of long-term tenants, on request (in practice that was at longer intervals but never 17 years!). Sounds like he's had a low-maintenance tenant and has no reason to stir things up and create problems for himself when it can all be done and dusted quickly and easily. He probably feels he's got enough on his plate with keeping the big-ticket sale going so why ask for problems for the sake of a (relatively) small sum: don't sweat the small stuff is likely to be his mantra.

Your real problem will probably be financing the extortionate agency charges for getting out of one place and into a new one, usual costs of moving and coming up with the (probably higher) deposit for that new place until your existing deposit is returned.

Cheers!

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Re: My eviction part 3 (or 4?!)

#158443

Postby AleisterCrowley » August 10th, 2018, 9:58 am

Excellent, thanks JonE
Currently going through the guidance on the TDS website
https://www.tenancydepositscheme.com/
I've checked my Tenancy certificate code (it's 'similar to' gGoPX9QQ) - and it appears I'm in an insured scheme
It's not immediately clear who kicks off the return of deposit, or when.

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Re: My eviction part 3 (or 4?!)

#158468

Postby pochisoldi » August 10th, 2018, 11:21 am

AleisterCrowley wrote:Excellent, thanks JonE
Currently going through the guidance on the TDS website
https://www.tenancydepositscheme.com/
I've checked my Tenancy certificate code (it's 'similar to' gGoPX9QQ) - and it appears I'm in an insured scheme
It's not immediately clear who kicks off the return of deposit, or when.


The landlord can return the deposit when he likes. You've got to ask them first. (No point asking the agent, because they will always don the asbestos underpants, collect their teflon jacket and say "return the deposit at the end of tenancy"). If the deposit has been returned and you've given the landlord a receipt, the matter is closed - the only time scheme rules kick in is when an agreed sum of money hasn't been returned.

I said it before, and I'll say it again in a different manner, "you want a deal", "Landlord wants a deal", "Agent is in it for themselves".
The only way for you and your landlord to both get what you each want is to cut out the agent and talk directly to your landlord.

PochiSoldi

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Re: My eviction part 3 (or 4?!)

#158490

Postby AleisterCrowley » August 10th, 2018, 11:51 am

The landlord can return the deposit when he likes
It appears to be within 10 days of the end of the tenancy (assuming the tenant has asked for the return of deposit )

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Re: My eviction part 3 (or 4?!)

#158535

Postby pochisoldi » August 10th, 2018, 1:51 pm

AleisterCrowley wrote:The landlord can return the deposit when he likes
It appears to be within 10 days of the end of the tenancy (assuming the tenant has asked for the return of deposit )


You are missing the point of my post - They can return the deposit at any point between now and whatever date is specified in the deposit scheme.

Get talking to your landlord, you have wasted, and are continuing to waste, far too much energy and stress on this.

At this rate you'll be in hospital with an ulcer, or a stroke before the day before any S21 notice runs out.

PochiSoldi

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Re: My eviction part 3 (or 4?!)

#158585

Postby Infrasonic » August 10th, 2018, 4:09 pm

pochisoldi wrote:
AleisterCrowley wrote:Excellent, thanks JonE
Currently going through the guidance on the TDS website
https://www.tenancydepositscheme.com/
I've checked my Tenancy certificate code (it's 'similar to' gGoPX9QQ) - and it appears I'm in an insured scheme
It's not immediately clear who kicks off the return of deposit, or when.


The landlord can return the deposit when he likes. You've got to ask them first. (No point asking the agent, because they will always don the asbestos underpants, collect their teflon jacket and say "return the deposit at the end of tenancy"). If the deposit has been returned and you've given the landlord a receipt, the matter is closed - the only time scheme rules kick in is when an agreed sum of money hasn't been returned.

I said it before, and I'll say it again in a different manner, "you want a deal", "Landlord wants a deal", "Agent is in it for themselves".
The only way for you and your landlord to both get what you each want is to cut out the agent and talk directly to your landlord.

PochiSoldi


It depends on what sort of service contract the LL has with the agent, in the case of a 'full service' one sometimes colourfully referred to as Gold then the tenant negotiates with the agent on all matters including the return of the deposit via TDS. The tenants have no direct contact with the LL at any point (unless the LL wants to get involved...)

The opposite extreme is where the agent offers a bare bones marketing and introduction service only for the LL and the LL does everything else including background and credit checks, in which case the tenants deal with the LL 99% of the time for all matters.

There's also a middle ground option where the agent does a bit more work than the basic no frills.

The only way to find out as a tenant is to ask the agent what deal they are on with the LL, and if they or the LL are handling the TDS deposit return.

As far as I can ascertain from this thread (which has turned into a bit of a train wreck TBH) the OP has been dealing with the agent for everything, so it would appear that the LL has more than a basic contract in place with the agent, maybe even a 'full service' one, in which case the LL may not appreciate the tenant trying to contact them directly ( I have a full service agent agreement for that very reason...)

So speak to the agent first and find out what the situation is.

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Re: My eviction part 3 (or 4?!)

#158588

Postby modellingman » August 10th, 2018, 4:18 pm

I would not quite give up on the validity of the Section 21 yet. An important part of deposit protection, from a landlord's perspective, is serving the so-called Prescribed Information. This is not the same as the Tenancy Deposit Certificate and is additional to it - see step 4 of this guide on the TDS website. The Prescribed Information must be served before a valid Section 21 can be issued see p6 of this TDS Leaflet (pdf, the TDS Guide to its Insured Scheme).

The Prescribed Information document should have been issued to you by the landlord, who is required to sign a declaration stating that the information contained within it is true to the best of his knowledge and belief. It is also considered best practice to allow the tenant to sign the document (if only to provide confirmation of its receipt).

If you cannot locate a copy in your own records then you should make enquiries of the agent as to when the Prescribed Information (within the meaning of The Housing (Tenancy Deposits) (Prescribed Information) Order 2007) was issued to you.

Even if the agent has done everything by the book, I think your deposit will be safe.

The procedure for returning a deposit is that the landlord (or agent on the landlord's behalf) is supposed to agree with the tenant the amount of any deductions that are to be made from the deposit. Although, some landlords/agents undoubtedly try and pressure tenants into accepting all sorts of deductions, tenants have the right to disagree and have the matter referred to the Alternate Dispute Resolution (ADR) service which is operated by each of the statutory protection schemes (what Infrasonic has previously called a "tribunal"). The ADR service operates on the basis of written submissions (so no hearing) and an adjudicator makes a decision on the return of the deposit based on the evidence submitted.

There is a useful guide to the ADR process (pdf) on the TDS website.

In support of Infrasonic's contributions I would add that the underlying premise of tenancy deposit protection is that the deposit belongs to the tenant. Therefore, within ADR, the burden of proof for justifying any deductions from the tenant's deposit lies squarely with the landlord. This has spawned a whole new industry of inventory clerks whose role is to document the condition of the rented property at the start of a tenancy and again at the end, so that there is documentary evidence available to provide the landlord's justification in the event of a dispute. As your tenancy pre-dates the introduction of deposit protection, I would doubt very much whether your landlord is in any position to make a case for justifying any retentions from your deposit (though ignorance of the process might not stop them trying). Does your tenancy agreement even mention a deposit or what can be deducted from it? If not, your landlord's claim will fall at the first hurdle of ADR.

And as JonE has noted there is a much bigger picture in play. Even if your Section 21 notice is valid, the agent will (or should) know that this is no guarantee that the property will become vacant at the end of the notice period. A recent Landlordzone Article indicates that it takes on average 17 weeks to regain possession once a court claim is started. For the sake of a deposit worth less than £1000, what sane landlord would risk hacking off a tenant and potentially incur significant delays in possession with the attendant risks of losing a sale worth many tens or even hundreds of times that amount?


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