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My eviction part 3 (or 4?!)

including wills and probate
UncleEbenezer
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Re: My eviction part 3 (or 4?!)

#156063

Postby UncleEbenezer » July 30th, 2018, 10:39 am

GoSeigen wrote:I think this is poor advice.

Very likely, but ...
There is absolutely no need to pursue this path, because your landlord cannot take possession without returning your deposit.

That is surely a red herring. The landlord apparently[1] can't serve notice without either protecting or returning the deposit. But that's not the issue here: the tenant intends to leave anyway. He gains nothing by continuing to possess the place after he's moved out! If the S21 notice is defective, all the tenant gains through that is more time. Which is indeed a Good Thing to have, but that's another question.
I'd just wait for the appropriate time to put it to him that you are owed your deposit, and that as a condition of your agreeing to vacate "early" you want an undertaking from him that he will repay it in full. If he is nervous you could allow him to inspect the premises in advance, and undertake to leave it in substantially the same condition when you actually vacate .

The risk there is that he has to go to court for it, which is a lot of hassle he could do without[2]. If he continues to possess the place against the landlord (which is the legal weapon he probably has), then more rent is due for that time, which is the last thing he wants! Plus of course he opens himself to court proceedings.
Withholding rent for any reason is not only rude but is a serious breach of your contract and may open you up to a section 7/8 proceeding. Your rent is payable in advance and so I see no scope for substituting rent for deposit.

GS

Turfing a tenant out of his long-term home is a whole lot ruder and nastier! And this is a tenant in good standing, who has a demonstrated track record of cooperating when he could have taken a stand over viewings.

My suggestion was - in effect - that any section 7/8 proceeding will be overtaken by events, as he intends to move out anyway before he can be evicted. Doesn't the rent have to be nearly a month overdue before a landlord can even start such proceedings? So in practice any proceedings could only seek to reclaim money, and that money will be offset against the deposit. Thus the only real risk is that he's then likely to be in a weaker position if he needs more time than he thinks to find a new place.

[1] I really wouldn't be comfortable relying on that S21 being invalid based on anything posted here, even when apparently backed by a reading of the legislation.
[2] And all it gets him is a court judgement, which the landlord might then ignore. Especially if the landlord is hard to chase (e.g abroad).

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

#156197

Postby modellingman » July 30th, 2018, 8:30 pm

First, the legal aspects.

AleisterCrowley wrote:One question - there seems to be a lot of legislation affecting ASTs
I've seen references to the Housing Act 1988 ,the Local Government and Housing Act 1989, the Housing Act 1996, the Housing Act 2004 etc etc
How do I know which sections of each are current, and which have been superseded?
As an example, and I'm not suggesting your information is inaccurate, how would I check that Section 215 of the Housing Act 2004 is current, and hasn't been replaced by a later act(s)?


As PinkDalek has noted pages on the legislation.gov.uk website tell you the "state of play" with respect to a particular piece of legislation. There has been so little legislation passed recently (because of a major pre-occupation with the country's future) that those who manage the website are pretty much up to date with ensuring that it reflects the current statute book. The annotations in the text itself indicate changes that have been made to the original Act by subsequent legislation and even identify where complete sections have been repealed (for example Part IV of the Housing Act 1988 was subsequently repealed by Section 227 of the 1996 Act).

AleisterCrowley wrote:Why are there still references to 'older' Housing Acts? I had assumed/hoped that each act would entirely replace the previous - obviously not !


Indeed. To add to what both Go Seigen and Uncle Ebenezer have said, housing is a very broad policy area and covers much more than just the private rented sector (think in terms of Homelessness, Right to Buy, Housing Associations and many, many other aspects of housing). Each act generally enables the implementation of some new housing policy or adjusts the legal basis of existing policy in the light of actual experience. Amongst other things, the 1998 Act introduced Assured and Assured Shorthold Tenancies, whilst the 2004 Act enabled the introduction of tenancy deposit protection.

I think you can be reasonably assured that Section 215 is current law. But if you are still in doubt then go and see an advisor. Citizen's Advice are probably as good a starting point for this type of thing as anyone. Take your "S21 notice" with you.

Now onto the meat of your issue.

There is clearly a game to be played out here. You seem to be quite happy about (or at least resigned to) moving out of your present accommodation. You want your deposit back in full and want to give yourself sufficient time to sort out your accumulated stuff and find yourself somewhere else to live. The agent has treated you reasonably until now and you would prefer to reciprocate rather than fully enforce your rights by forcing the landlord/agent down a court ordered eviction route. The agent wants to get the property back so it can be sold as agreed. The agent may (or may not) have designs on keeping your deposit.

There are various ways you could play this. You could for example try a negotiated approach: "I'll leave by x, in return for full return of deposit, satisfactory reference, etc." Or you could follow more of a sequential approach: finding out about your deposit, then finding somewhere to live, then getting the return of your deposit, etc. There are probably other ways you can think of besides these two. Unfortunately you don't know what skill (ie legal knowledge) level the other side has and how they will react to your moves. So you need to think through what your initial move should be (and when you want to make it), what range of responses might be forthcoming from the agent and how in turn you might react to each of those responses, etc. Your "ace cards" are: the agent has (more than likely) fallen foul of the Section 215 rules and is unaware of this (or is wilfully ignoring it and assumes you are the unaware one); and the fact that the property has been sold before gaining vacant possession.

How you play this is up to you but here's a suggestion to consider. Play it as a game with friends/colleagues taking on the role of the agent. Play it through a few times with the agent acting differently (nice/hard-nosed/etc). Keep a record of how each game proceeds. This approach should give you a better feel for the range of situations you might encounter in reality and how best to deal with them.

In terms of using your deposit in lieu of rent, the downside is that you will, more than likely, be in breach of your tenancy agreement (which I would expect to contain a clause prohibiting the deposit being used for payment of rent). Theoretically, this does provide a ground for court action against you but, I suspect it is only a very slim risk. You would need to be two months in arrears before a Section 8 notice can be served on you, though the notice period is only two weeks before court proceedings can be commenced. However, you can easily halt proceedings by reducing the arrears prior to any hearing. Personally, I think you should hold this action of deposit in lieu of rent "in reserve" to be used only if earlier attempts to get your deposit returned fail.

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

#156221

Postby AleisterCrowley » July 30th, 2018, 10:00 pm

I'm going to finish checking the deposit protection schemes (lots of combinations to try) and email the agent - just to ask about if/when deposit was protected.
I'll base my next move on their response.Not back in Slough until next Monday, as on holiday (not having much fun sadly, I think it's preying on my mind)

As always, many thanks to all contributors for the useful and detailed posts

chas49
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Re: My eviction part 3 (or 4?!)

#156672

Postby chas49 » August 2nd, 2018, 8:53 am

AleisterCrowley wrote:I'm going to finish checking the deposit protection schemes (lots of combinations to try) and email the agent - just to ask about if/when deposit was protected.
I'll base my next move on their response.Not back in Slough until next Monday, as on holiday (not having much fun sadly, I think it's preying on my mind)

As always, many thanks to all contributors for the useful and detailed posts


Just a thought, but when you contact them, is it worth playing dumb a bit? "I have read that deposits are now held in a protection scheme. Can you let me know the process for getting this back please", or just "Can you let me know the process for getting the deposit back please?"

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

#156734

Postby Infrasonic » August 2nd, 2018, 12:32 pm

Not a legal response but I'd agree with UE's post that if it looks like you are going to have to fight for your deposit return (and have somewhere else to move to by then), withhold the deposit amount from the last rent payment.

You'll scupper any references from the LL or agent that way, but if you've found somewhere else to live and have agreed the move in date, signed a new AST etc., it's all rather moot anyway.

Court proceedings are a major pain all round, no one voluntarily goes into them unless they are a last resort, I think the real world chances of you being pursued for the last months rent are slim. As a landlord myself I wouldn't bother.
(I lost a minor damages claim with some previous tenants, despite having photographic evidence and repair bills. Lesson learned...)

As a tenant I have done it myself when I used to rent bedsits as a student from somewhat dodgy LL's back in the late 80's. They never said a word, I'd imagine it was par for the course back then...

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

#157808

Postby AleisterCrowley » August 7th, 2018, 10:51 pm

I've emailed them asking for details of the deposit protection scheme used, as I can't find the relevant info online.
I mentioned I have the signed and dated receipt from May 2001..

Hopefully they will be sensible. The nightmare scenario is the sale falls through and I have to go through the viewing rigmarole again, with a potentially vindictive agent/landlord and all the uncertainty

The letter with the S21 says 'the owner of the property has agreed a sale and therefore reluctantly needs vacant possession'

If they come back with the 'no protection' response, and I point out the S21 is invalid- and they then have to serve it again with a new date (say 10 October) could this put the sale at risk ?

As mentioned before I would get little benefit from an extra week or so, and would be happy to vacate before 1 October.

I want to use the leverage re deposit protection to get my deposit back in full, but don't want to shoot myself in the foot

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

#157871

Postby modellingman » August 8th, 2018, 9:44 am

AleisterCrowley wrote:I've emailed them asking for details of the deposit protection scheme used, as I can't find the relevant info online.
I mentioned I have the signed and dated receipt from May 2001..

Hopefully they will be sensible. The nightmare scenario is the sale falls through and I have to go through the viewing rigmarole again, with a potentially vindictive agent/landlord and all the uncertainty

The letter with the S21 says 'the owner of the property has agreed a sale and therefore reluctantly needs vacant possession'

If they come back with the 'no protection' response, and I point out the S21 is invalid- and they then have to serve it again with a new date (say 10 October) could this put the sale at risk ?

As mentioned before I would get little benefit from an extra week or so, and would be happy to vacate before 1 October.

I want to use the leverage re deposit protection to get my deposit back in full, but don't want to shoot myself in the foot


Assuming that the agents confirm that your deposit is not protected (on the grounds you have a pre-April 2007 tenancy) then you could respond that you are willing to relinquish possession by 1 October provided that your deposit is returned to you in full. In your position, I would also let the agents know that their current notice is invalid (because of Section 215(1) of Housing Act 2004). I would also specify a deadline for the return of your deposit - you don't want to be left hanging on in uncertainty and then suddenly receive your deposit back on say September 29. A deadline of 5 working days would not be unreasonable. I would also use the magic words "Without Prejudice" in making your offer - the last thing you want is your offer subsequently being used against you.

Such an offer would give the agents a way of getting themselves out of the hole they have put themselves in by negotiating a sale before vacant possession has been obtained. However, you should be aware that if they accept your offer and abide by the condition then you are committing yourself to leaving by the agreed date. If you do not leave by this date then you open yourself to action against you for any financial loss that the landlord incurs if the sale is delayed or aborted as a result.

In reality, though, I suspect that the risks of any such action are very low indeed. Having committed to a purchase/sale most buyers/sellers will put up with no end of delays just to see the matter through. It is only when the delays turn from weeks to months that patience finally comes to an end. Even then, most will simply shrug their shoulders, walk away and chalk it up to experience.

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

#157976

Postby AleisterCrowley » August 8th, 2018, 5:02 pm

Many thanks as always MM
That was pretty much my plan -good to have it confirmed by someone who knows the subject!
As per above, I was vaguely worried a push-back on the S21 might force them into having to serve an new S21 with a 2 month notice period - and possibly lose the sale- which is absolutely NOT what I want
Would a negotiated agreement as you describe (I agree to leave by 1 Oct* if deposit returned in full) be acceptable in law?
I'd be happy with a cheque dated the day before the S21 and would sign a receipt to that effect, but probably wouldn't make the offer in writing!

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

#158116

Postby modellingman » August 9th, 2018, 1:10 am

AleisterCrowley wrote:Many thanks as always MM
That was pretty much my plan -good to have it confirmed by someone who knows the subject!
As per above, I was vaguely worried a push-back on the S21 might force them into having to serve an new S21 with a 2 month notice period - and possibly lose the sale- which is absolutely NOT what I want
Would a negotiated agreement as you describe (I agree to leave by 1 Oct* if deposit returned in full) be acceptable in law?
I'd be happy with a cheque dated the day before the S21 and would sign a receipt to that effect, but probably wouldn't make the offer in writing!


I will reply on Friday, I'm travelling most of Thurs.

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

#158150

Postby GoSeigen » August 9th, 2018, 8:55 am

AleisterCrowley wrote:Many thanks as always MM
That was pretty much my plan -good to have it confirmed by someone who knows the subject!
As per above, I was vaguely worried a push-back on the S21 might force them into having to serve an new S21 with a 2 month notice period - and possibly lose the sale- which is absolutely NOT what I want
Would a negotiated agreement as you describe (I agree to leave by 1 Oct* if deposit returned in full) be acceptable in law?
I'd be happy with a cheque dated the day before the S21 and would sign a receipt to that effect, but probably wouldn't make the offer in writing!


AC, if the other party is stupid and fails to make a deal with you, then their failure to serve a valid S21 might well jeopardise the sale. MM's point is that their mistake/oversight has put you in a strong bargaining position, so that providing you are reasonable you should get what you want.

There are only two ways for a landlord to end a tenancy: serve lawful notice and get a court order and execute it, or negotiate a surrender with the tenant.

The surrender path is absolutely permitted in law, yes. If you and the landlord agree a date on which you may surrender the tenancy and vacate the property then on that date if you vacate you will have no further obligation to pay the rent. If you remain after the surrender date you are illegally in occupation without a tenancy i.e. your rights are severely curtailed and the landlord could have you removed PDQ.

So yes, the agreement to surrender is acceptable in law and would put the landlord in a very strong position to take possession, while also releasing you from your obligations if you leave as agreed. The surrender can be on any date agreed by the two parties.

As for the terms of the agreement, personally I'd ask for the deposit to be returned in cleared funds by surrender date (cash / bank transfer etc). I'd also ask them to agree that as you have been a good tenant and kept the terms of the tenancy they will be willing to supply references confirming the same. As MM said there is no harm making the offer in writing but don't forget to clearly head your letter with the words "Without prejudice".


GS

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

#158179

Postby AleisterCrowley » August 9th, 2018, 10:30 am

Thanks GS,

They may have protected the deposit during the 'window' available, but I'm pretty sure I didn't receive any notification of this. It could have got lost in the post...
I strongly suspect they didn't bother, and they've gone quiet after acknowledging my email.

If they rush around and now protect the deposit I assume I've still got the bargaining leverage, as it would be dated after the S21 was served ?

Perhaps i'm worrying too much! Cou;d do without the extra hassle, as work is fairrly intense at the moment

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

#158195

Postby Infrasonic » August 9th, 2018, 11:22 am

Perhaps i'm worrying too much! Cou;d do without the extra hassle, as work is fairrly intense at the moment


Yep, I understand the stress having been through it myself, but in your case it's pretty simple.
Either get an assurance from them in writing that they will return the deposit in full pending final checkout inspection as per the 'no prejudice' advice ( they can't deduct for 'reasonable' wear and tear) or cut your losses and just deduct the deposit from the final rent payment (as long as you have somewhere else lined up to move into.)

Trying to think of every angle will drive you nuts, I can tell you the agent and LL will be giving it the minimum of their attention as long as they think you are moving out. The sale £££ dwarfs any consideration of the deposit, just don't get stiffed...

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

#158206

Postby AleisterCrowley » August 9th, 2018, 11:53 am

As the buyer has been round twice and a sale has been agreed, I'm not expecting a final inspection beyond checking that the walls and roof are still intact... and doing meter readings etc
The landlord can hardly claim for work to get the place saleable/rentable if it's been sold already...
Plus, having been there 17 years, as far as i'm concerned all fixtures and fittings will have depreciated to zero long ago.

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

#158209

Postby Mike88 » August 9th, 2018, 12:06 pm

AleisterCrowley wrote:As the buyer has been round twice and a sale has been agreed, I'm not expecting a final inspection beyond checking that the walls and roof are still intact... and doing meter readings etc
The landlord can hardly claim for work to get the place saleable/rentable if it's been sold already...
Plus, having been there 17 years, as far as i'm concerned all fixtures and fittings will have depreciated to zero long ago.


Apologies but this comment is partly off topic. If you have been in the property for 17 years you have probably paid for the place in rent. As a former landlord I cannot see any way your deposit will not be returned in full.

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

#158213

Postby AleisterCrowley » August 9th, 2018, 12:19 pm

That is about to be tested..
Just had the 'worst possible news' that they protected deposit with TDS on 29/06/2012
I've found it based on the pdf of the certificate they just sent me. Pretty sure they didn't send me the info in 2012, but impossible to prove either way

So, Plan B unfortunately - have to fight via the scheme, but hopefully have a strong case

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

#158227

Postby Infrasonic » August 9th, 2018, 1:35 pm

AleisterCrowley wrote:That is about to be tested..
Just had the 'worst possible news' that they protected deposit with TDS on 29/06/2012
I've found it based on the pdf of the certificate they just sent me. Pretty sure they didn't send me the info in 2012, but impossible to prove either way

So, Plan B unfortunately - have to fight via the scheme, but hopefully have a strong case


If they've just sent you a copy of the TDS PDF registration it does prove it surely? Or am I being thick here?
TDS favours the tenants (that's why it was introduced...), as I found out when I raised a legitimate claim for damages and lost.
So my guess is you'll now get your deposit back in full unless by some fluke the LL or agent took a load of time stamped pictures when you moved in that 'prove' you have damaged the property beyond reasonable wear and tear. See those pigs flying above?...

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

#158235

Postby AleisterCrowley » August 9th, 2018, 2:11 pm

It proves they protected it, but doesn't prove they sent me a copy, which they are supposed to do (I think...retrospective protection of existing periodic ASTs may have different rules)

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

#158245

Postby Infrasonic » August 9th, 2018, 2:27 pm

AleisterCrowley wrote:It proves they protected it, but doesn't prove they sent me a copy, which they are supposed to do (I think...retrospective protection of existing periodic ASTs may have different rules)


If they have just sent you a copy of the original TDS registration, that proves it was registered, and you now have a date stamped copy for your records.
If they were going to stiff you for the deposit why on earth would they send you a copy that you can use as evidence in court or at a TDS tribunal (that's how they get resolved) if it ever went that far? (It won't).

This is better for you not worse...

I understand you are stressed but you aren't thinking very clearly here at all... :D

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

#158252

Postby AleisterCrowley » August 9th, 2018, 2:51 pm

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

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

#158255

Postby Infrasonic » August 9th, 2018, 3:01 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


TDS was introduced to protect tenants to stop landlords withholding deposits at the end of tenancies.
I've already told you that I have been through a tribunal as a Landlord with a legitimate damages claim and lost. I had photo's and everything.
The tenants got 100% of their deposit back.

So you are better off with the deposit being under TDS (which is independent) rather than it being held by a (potentially) dodgy LL or agent.

Does this clear up any confusion?


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