Remove ads

Introducing the LemonFools Personal Finance Calculators

My eviction part 3 (or 4?!)

including wills and probate
AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

My eviction part 3 (or 4?!)

#155176

Postby AleisterCrowley » July 25th, 2018, 10:46 pm

Most of the details are here;
viewtopic.php?f=2&t=12666&p=155169#p155169
Summary: been a tenant since 2001. Landlord has sold flat and requires posssession. £790 damage deposit. AST, monthly rent.

Today I received a S21 Notice 'by hand' - it sneakily arrived sometime after 4pm, possibly by messenger owl...

It's on the S21 prescribed form

Section 2 says 'You are required to leave the below address after 1st October 2018'
(odd form of words- 'on or before 1st October would make more sense to me, but assume this is a legal quirk)

Anyway, to cut to the chase, there is no mention of deposit protection/return anywhere.

Based on the previous thread(s) my understanding is that, in the case of old tenancies such as mine, the deposit must be protected or returned in full before a valid S21 notice can be served. This is IIRC from the Shelter website. Would be interested to know if this is correct, and where it is in the relevant acts *

I'm reasonably 'happy' to go before 1 October, but I want all my deposit back.

How do I play this ? There's a sheet at the end of the notice "Tenant's Receipt of Notice " which I assume I'm supposed to sign and return

Do I get legal advice?
Approach the agents for clarification ? Perhaps the deposit is protected and they failed to tell me about it/post went astray/I did get notification and have forgotten about it (I'm normally pretty organised with things like that)

I don't want to be difficult, and I'm OK to leave by 1 October, as long as I get my £790 back in full. Given the fact that the landlord's agreed a sale it would be a bit cheeky if they were to retain a some/all of the deposit (to repair/replace what exactly??!)

Current plan is to contact agents tomorrow and ask for details of deposit protection scheme. They'll either come back with details , or say it didn't need to be protected. In which case can I ask for the deposit back in full and a resubmission of the S21? I wouldnt gain any time by this as it's > 2 month's notice.



To add to complexity I'm off on holiday Fri morning - not back til 6th August :-(

Cheers

AC

* the S21 refers to the Housing Act 1988 section 21(1) and (4) as amended by section 194 and para 103 of Schedule 11 of the Local Government and Housing Act 1989, and section 98(2) and (3) of the Housing Act 1996

moorfield
Lemon Quarter
Posts: 1166
Joined: November 7th, 2016, 1:56 pm
Has thanked: 158 times
Been thanked: 250 times

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

#155178

Postby moorfield » July 25th, 2018, 11:06 pm

AleisterCrowley wrote:
I don't want to be difficult, and I'm OK to leave by 1 October, as long as I get my £790 back in full. Given the fact that the landlord's agreed a sale it would be a bit cheeky if they were to retain a some/all of the deposit (to repair/replace what exactly??!)




Well, you could just cause £790 worth of damage on 30 Sept and do one without a forwarding address. :mrgreen:

Sounds like an opportunity for a LF Leaving Do perhaps ...

modellingman
2 Lemon pips
Posts: 184
Joined: November 4th, 2016, 3:46 pm
Has thanked: 33 times
Been thanked: 60 times

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

#155186

Postby modellingman » July 26th, 2018, 12:21 am

AleisterCrowley wrote:
Based on the previous thread(s) my understanding is that, in the case of old tenancies such as mine, the deposit must be protected or returned in full before a valid S21 notice can be served. This is IIRC from the Shelter website. Would be interested to know if this is correct, and where it is in the relevant acts *


It is Section 214(1) of the Housing Act 2004 (as amended).


Subject to subsection (2A), if (whether before, on or after 6 April 2007) a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when the deposit is not being held in accordance with an authorised scheme.


In your case, subsection (2A) allows the notice to be served provided that the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant.

The legislation is here.

modellingman
2 Lemon pips
Posts: 184
Joined: November 4th, 2016, 3:46 pm
Has thanked: 33 times
Been thanked: 60 times

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

#155192

Postby modellingman » July 26th, 2018, 1:06 am

AleisterCrowley wrote:
Today I received a S21 Notice 'by hand' - it sneakily arrived sometime after 4pm, possibly by messenger owl...

It's on the S21 prescribed form

Section 2 says 'You are required to leave the below address after 1st October 2018'
(odd form of words- 'on or before 1st October would make more sense to me, but assume this is a legal quirk)


Unless it is on Form 6A, it is not on the prescribed form. This form is mandatory for tenancies created on or after 1 October 2015 but can be used for tenancies created at an earlier time.

The use of "after" is the correct form. It arises because of the form of words used in Section 21(4)(a) of the 1988 Housing Act.

AleisterCrowley wrote:
I'm reasonably 'happy' to go before 1 October, but I want all my deposit back.

How do I play this ? There's a sheet at the end of the notice "Tenant's Receipt of Notice " which I assume I'm supposed to sign and return

Do I get legal advice?
Approach the agents for clarification ? Perhaps the deposit is protected and they failed to tell me about it/post went astray/I did get notification and have forgotten about it (I'm normally pretty organised with things like that)

I don't want to be difficult, and I'm OK to leave by 1 October, as long as I get my £790 back in full. Given the fact that the landlord's agreed a sale it would be a bit cheeky if they were to retain a some/all of the deposit (to repair/replace what exactly??!)

Current plan is to contact agents tomorrow and ask for details of deposit protection scheme. They'll either come back with details , or say it didn't need to be protected. In which case can I ask for the deposit back in full and a resubmission of the S21? I wouldnt gain any time by this as it's > 2 month's notice.



To add to complexity I'm off on holiday Fri morning - not back til 6th August :-(


In your position I would go off on holiday and deal with this when you return. When you return check with each of the schemes whether or not they are holding a deposit for you. If not (and you seem reasonably confident that this will be the case) then you should approach the agents and tell them about Section 215 of the Housing Act 2004. In the unlikely event that your deposit is protected then (a) familiarise yourself with Section 214 of the same act and (b) read the remarks made in an earlier thread about the onus being on the landlord to justify (through) evidence any retention sought from your deposit.

As a final comment, I would definitely not sign any tenant's receipt. That is just a way of doing the agent's job for them (providing evidence that their notice has been served on you, vital for them if they try to pursue the matter in court).

AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

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

#155233

Postby AleisterCrowley » July 26th, 2018, 8:18 am

Thanks MM - geatly appreciated. Plenty to read there...
Is it worth asking the agent about the deposit protection?
Just a simple;
Dear Mr ####
Could you please provide details of the deposit protection scheme used to hold my £790 deposit


Bear in mind I don't want to be obstructive and will be happy with full deposit back, and a leave date of 1 October or later.
I certainly don't want to fight the eviction notice and stay put (about time I moved...)

regards
AC

GoSeigen
Lemon Quarter
Posts: 1009
Joined: November 8th, 2016, 11:14 pm
Has thanked: 230 times
Been thanked: 221 times

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

#155410

Postby GoSeigen » July 26th, 2018, 4:58 pm

AleisterCrowley wrote:I certainly don't want to fight the eviction notice and stay put (about time I moved...)

regards
AC


I get your drift, but for the avoidance of doubt, you do not have to "fight" to stay put. You have 100% right to stay where you are until bailiffs turn up. That is when [if ever] the fighting begins.

GS

AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

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

#155419

Postby AleisterCrowley » July 26th, 2018, 5:08 pm

I think moving would actually benefit me in the long run , so fairly sanguine about it.
The moving process is a hassle, but I can trim some of my clutter.

Do you think I should contact agent about the deposit, or wait for them to follow up re the S21 when I don't return the receipt slip?

ap8889
Lemon Quarter
Posts: 1387
Joined: November 4th, 2016, 10:55 am
Has thanked: 145 times
Been thanked: 270 times

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

#155431

Postby ap8889 » July 26th, 2018, 5:54 pm

I think there is no harm in enquiring as to the procedure for deposit return, since they are ending the tenancy and asking for the property back.

Most agents are legit, and will handle this enquiry routinely. I would be seriously cross if I found my agent had not protected a tenant's deposit via one of the TDP schemes as it puts the LL in an indefensible position.

AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

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

#155476

Postby AleisterCrowley » July 26th, 2018, 10:05 pm

I'll drop the agents an email tomorrow night
I'm back at my mum's for a week so will not see any post to flat

pochisoldi
Lemon Slice
Posts: 313
Joined: November 4th, 2016, 11:33 am
Has thanked: 5 times
Been thanked: 153 times

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

#155494

Postby pochisoldi » July 27th, 2018, 1:32 am

AleisterCrowley wrote:I think moving would actually benefit me in the long run , so fairly sanguine about it.


Make sure you correctly prioritise being able to leave early (i.e. at short notice) so you can (1) reduce/eliminate the amount of time you spend paying for two properties, (2) you can grab that bargain/ideal property that you want and (3) don't end up being stressed out/having to take second best because you have to be out of the old place in a fortnight.

Remember the landlord has either probably exchanged contracts, and can probably complete the sale earlier if you move out earlier, OR the landlord could lose the sale if you don't move out on time, so the landlord "owes you one".

modellingman
2 Lemon pips
Posts: 184
Joined: November 4th, 2016, 3:46 pm
Has thanked: 33 times
Been thanked: 60 times

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

#155803

Postby modellingman » July 28th, 2018, 1:40 pm

AleisterCrowley wrote:I think moving would actually benefit me in the long run , so fairly sanguine about it.
The moving process is a hassle, but I can trim some of my clutter.

Do you think I should contact agent about the deposit, or wait for them to follow up re the S21 when I don't return the receipt slip?


You need to be very careful about how you respond to the agent.

You should not, at this stage, make any offer to leave whether by October 1st or any other date. The reason for this is that you would be issuing your own notice to quit. Once issued, you would not be able to rescind that notice unilaterally and you would likely lose the important protections provided to you (and specifically to your deposit) by Section 215(1) of the 2004 Housing Act (namely that the landlord cannot issue you with a Section 21 notice unless your deposit has been protected in a statutory scheme or returned to you).

There are only 3 statutory schemes and each provides a simple mechanism for checking whether a deposit has been protected with them. Shelter provides a starting point for this activity. They generally require tenant's surname, postcode of the rented property, start date of the tenancy (as mm/yyyy) and amount of deposit. Because your tenancy pre-dates the introduction of deposit protection, I would also use as possibilities for the start date a) the 90-day window given by the Deregulation Act 2015 which allowed landlords to regularise their deposit protection position (this window covered March, April, May and June of 2015) and b) the date of the introduction of deposit protection in April 2007.

If, after checking with the three schemes, you find (as you expect) that your deposit is not protected then you might approach the agent telling them that, after checking with the schemes, you cannot find a record of your deposit being protected. At this stage, I would, as you indicated in an earlier post keep your enquiry very simple but would let them know that you have checked online without success. I would also state the amount of the deposit, the date and to whom it was paid. I suspect they will respond along the lines that as your tenancy both commenced and went periodic prior to April 2007, that there is no obligation on the landlord to protect your deposit within a statutory scheme. Once you have confirmation that your deposit has not been protected, then you are in a very strong position: the agent cannot issue a valid S21 notice; and the landlord has agreed a sale which he presumably risks losing.

Of course, the mere act of flagging up your deposit with the agent might alert them to your Section 215(1) rights, and if they decide to return or protect your deposit and re-issue a valid Section 21 with a new two month period then this will have bought you a bit more time. So the timing of your enquiry to the agent is something you might want to consider, particularly in light of your previously stated position in an earlier thread that moving by the end of October would be more convenient for you.

However, if the agent doesn't respond to counter the effect of Section 215(1), then you are under no obligation to tell them about its effect, though you may wish to do so at the point when you want your deposit back (ie having found somewhere else to live).

AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

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

#155813

Postby AleisterCrowley » July 28th, 2018, 2:49 pm

Thanks again MM, very useful info. Noted re offering to leave by a certain date.
I haven't emailed the agents yet , having had better things to do (I'm on holiday)
I'll check the deposit protection schemes as you suggest and have a think...Lots of combinations to try unfortunately.
As the date is greater than two months away, they could still get me out by 1 Oct if they get their act together. I'm not too fussed as it gives me give clear weeks to sort stuff after my August long weekend away.

GoSeigen
Lemon Quarter
Posts: 1009
Joined: November 8th, 2016, 11:14 pm
Has thanked: 230 times
Been thanked: 221 times

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

#155842

Postby GoSeigen » July 28th, 2018, 6:16 pm

AleisterCrowley wrote:Thanks again MM, very useful info. Noted re offering to leave by a certain date.
I haven't emailed the agents yet , having had better things to do (I'm on holiday)
I'll check the deposit protection schemes as you suggest and have a think...Lots of combinations to try unfortunately.
As the date is greater than two months away, they could still get me out by 1 Oct if they get their act together. I'm not too fussed as it gives me give clear weeks to sort stuff after my August long weekend away.



AC, they have no act that they can get together by 1 Oct, and cannot "get you out" by that date. On the 1 Oct their notice expires. If you are still in possession then after that they may make application to the court for possession and not before. Section 21 allows the landlord access to a so-called accelerated court procedure but it still not quick. Even if they get their act together it will take weeks. Clearly you'd like to leave by the date requested to be "nice" to the landlord, but don't panic if you haven't got everything sorted by that date. You will not be kicked out!


GS

modellingman
2 Lemon pips
Posts: 184
Joined: November 4th, 2016, 3:46 pm
Has thanked: 33 times
Been thanked: 60 times

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

#155937

Postby modellingman » July 29th, 2018, 11:06 am

AleisterCrowley wrote:Thanks again MM, very useful info. Noted re offering to leave by a certain date.
I haven't emailed the agents yet , having had better things to do (I'm on holiday)
I'll check the deposit protection schemes as you suggest and have a think...Lots of combinations to try unfortunately.
As the date is greater than two months away, they could still get me out by 1 Oct if they get their act together. I'm not too fussed as it gives me give clear weeks to sort stuff after my August long weekend away.


But you are under no obligation to help them get their act together, which you might be doing, if you contact them too quickly or with too much information.

And Go Seigen is quite right, a S21 notice is merely a legal pre-requisite for court action for possession by the landlord. I went through the accelerated possession process (as a landlord) last year and the court forms require the landlord to submit (amongst other things) both the S21 notice and evidence of when it was served on the tenant. If it came to it in your case, the S21 notice would be easily batted off as being invalid if you establish that a deposit was taken, has not been returned to you and is not protected in a statutory scheme. For the landlord, this requires a new and valid S21 to be issued and effectively resets the two-month notice clock. A S21 notice must be legally valid on the day it is served, and cannot be retrospectively legalised by correcting defects after service.

AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

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

#156007

Postby AleisterCrowley » July 29th, 2018, 8:22 pm

Thanks again both, I'm currently sitting on my hands, and thinking...
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)?

PinkDalek
Lemon Quarter
Posts: 3019
Joined: November 4th, 2016, 1:12 pm
Has thanked: 665 times
Been thanked: 686 times

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

#156008

Postby PinkDalek » July 29th, 2018, 8:26 pm

AleisterCrowley wrote:... how would I check that Section 215 of the Housing Act 2004 is current, and hasn't been replaced by a later act(s)?


See https://www.legislation.gov.uk/ukpga/20 ... ection/215

At the top it includes:

Changes to legislation:

Housing Act 2004, Section 215 is up to date with all changes known to be in force on or before 29 July 2018. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations

AleisterCrowley
Lemon Quarter
Posts: 2834
Joined: November 4th, 2016, 11:35 am
Has thanked: 559 times
Been thanked: 581 times

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

#156011

Postby AleisterCrowley » July 29th, 2018, 8:32 pm

So I can be 99.99% certain that's the current legislation ?

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

UncleEbenezer
Lemon Quarter
Posts: 2670
Joined: November 4th, 2016, 8:17 pm
Has thanked: 263 times
Been thanked: 359 times

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

#156027

Postby UncleEbenezer » July 30th, 2018, 12:43 am

From my reading of it, the only thing that really concerns you is that deposit?

I think we've more-or-less established that a court is going to side with you over any remotely normal dilapidations, on account of how long you've been there without maintenance happening.

This is definitely not legal advice, but have you considered de facto reclaiming it, by simply stopping your rental payment? Make it clear exactly what you're doing, and that you absolutely intend to settle any net amount that might still be owing after the end of the tenancy, and it'll be extraordinarily hard for them to pursue you for it - even if they believe in a lot of futile hassle.

UncleEbenezer
Lemon Quarter
Posts: 2670
Joined: November 4th, 2016, 8:17 pm
Has thanked: 263 times
Been thanked: 359 times

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

#156028

Postby UncleEbenezer » July 30th, 2018, 12:52 am

AleisterCrowley wrote:So I can be 99.99% certain that's the current legislation ?

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

Housing Acts have a sordid history. When governments try to improve the situation and get rid of nasty anomalies, vested interests ensure they have loopholes so the legislation doesn't work as intended. For example, 1980s leasehold reform intended to prevent freeholders of apartment blocks charging £20k per flat for spending £50/month cleaning communal areas not only left big loopholes for the mafia, but also induced regular freeholders to sell their interests to mafia buyers ahead of "right of first refusal" legislation.

GoSeigen
Lemon Quarter
Posts: 1009
Joined: November 8th, 2016, 11:14 pm
Has thanked: 230 times
Been thanked: 221 times

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

#156030

Postby GoSeigen » July 30th, 2018, 5:29 am

AleisterCrowley wrote:So I can be 99.99% certain that's the current legislation ?

I endorse ModellingMan's comments.

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


That's right. Occasionally an Act is replaced in its entirety, but in most cases only certain sections need revision, as is the case with the Housing Act updates.


GS


Return to “Legal Issues (Practical)”

Who is online

Users browsing this forum: No registered users and 1 guest