khanzenab Posted October 2, 2007 Report Share Posted October 2, 2007 i let out my property on the 14th april 2007, on a ast,but was unaware of the bond deposit scheme, hence took 2 months advance rent as i had done on previous tenancies. i also took £125 deposit for the dishwasher i had in the property,if the tenant so wished to use. i served notice 21 on the 2nd aug 2007,giving over 2 months notice to vacate the property. the tenant as taken advice from SHELTER that i cannot evict,as no bond deposit scheme set up, but i have all intentions of repaying advance on leaving. i have contacted DPS and have been advised that bond can be deposited even now, regardless of the fact tenancy expires in 10 days, which at least holds up that you have intention of paying the bond back. the preferred timescale is 14 days. can any plz advise whether this will hold up if i had to evict, and request a court order, or will i have to restart again with notice 21 again.. yours view will be grreatly appreciated.. a new landlord Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted October 7, 2007 Report Share Posted October 7, 2007 . Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted October 7, 2007 Report Share Posted October 7, 2007 Interesting one ...! Clearly as you hold a deposit then you need to protect it ....like yesterday..!!! Once dep is protected my guess is that you will probably have to start S21 again (i am no expert on this, as i have never needed to use a S21 !) Another alternative, which could be considered, is to give the deposit back ...like right now ....to the tenant ... if you dont have a deposit any more then clearly you wont have to protect it ...(i would think ??? anyone got any thoughts on this option ????)but you are still open too 3x dep as a penalty as you didn't protect it within 14 days ...... BUT would think you are going to have get dep issue cleared up, then start again regardless with the S21, as the cuurent one is fairly likely to be declared uneffective ??? This is all a bit new to all of us and will be interesting to see the result please keep us posted .... one for Mr Trenners maybe ....? Simon Link to comment Share on other sites More sharing options...
khanzenab Posted October 7, 2007 Author Report Share Posted October 7, 2007 i let out my property on the 14th april 2007, on a ast,but was unaware of the bond deposit scheme, hence took 2 months advance rent as i had done on previous tenancies. i also took £125 deposit for the dishwasher i had in the property,if the tenant so wished to use. i served notice 21 on the 2nd aug 2007,giving over 2 months notice to vacate the property. the tenant as taken advice from SHELTER that i cannot evict,as no bond deposit scheme set up, but i have all intentions of repaying advance on leaving. i have contacted DPS and have been advised that bond can be deposited even now, regardless of the fact tenancy expires in 10 days, which at least holds up that you have intention of paying the bond back. the preferred timescale is 14 days. can any plz advise whether this will hold up if i had to evict, and request a court order, or will i have to restart again with notice 21 again.. yours view will be grreatly appreciated.. a new landlord thanks for the input, i have also on two occasions going back 4 weeks, offered to pay tenant advance back in full, aswell the the remaining weeks rent if a month not fully completed, with witness as a local friend,as tenant advised me that he may have a house to move into to.. how cheeky has he been, knowing fully that i was paying advance back in full and on the day of moving out, just to get him out of my hair.. he had played on the time factor, and behind my back looked at issueing court action to recover 3 times the deposit. i instictively put the advacne into dps in the view to maintain that that i had full intention of paying back. i have checked with one law firm who deal with tenancy evictions, who habe advised that because i stated 2 months adv on the ast, rather that bond, then tenant does not have a leg to stand on.. i hope they are right.... any further views will be really assuring...it seems like i am not in control of my own property!!! Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted October 7, 2007 Report Share Posted October 7, 2007 If no bond is mention on AST ? and in cash ? and no receipt given for it ? .......then it will be very difficult to prove that 1 a bond was handed over at all ? 2 if it was handed over, just when that happened ? As you have now protected it ...what date did you say that you received it? And what documentation exists to "track" the bond ? Simon Link to comment Share on other sites More sharing options...
Trenners Posted October 7, 2007 Report Share Posted October 7, 2007 Hi all, The first thing to consider is did you take 2 months rent in advance and NO deposit or did you take 1 months rent in advance and 1 months DEPOSIT at the start of the tenancy. The tenancy agreement should confirm whether you only took rent or whether you took rent and deposit. If you took rent and deposit and then failed to protect the deposit then, as rodent says, you should protect it now (and it appears as though you have now sent it to the DPS - which means although you broke the law by not protecting it within 14 days you have now, in my opinion, rectified this situation. Regarding the Section 21, if the tenant does not leave peacefully at the end of the 2 month period defined in the Section 21 notice then you will need to complete an N5B form (accelerated possession procedure) and submit it to the court to get an eviction order. The N5B form specifically asks for a copy of the Deposit Protection Certificate (if the tenancy commenced on or after 6th April 2007). Now that you have a DPS protection certificate then you can comply with the terms of the N5B form. The fact that you had not protected the deposit when the Section 21 notice was served does not, in my opinion, invalidate the Section 21 notice. In other words I don't think you will need to re-serve it again. Good luck Mark Link to comment Share on other sites More sharing options...
khanzenab Posted October 8, 2007 Author Report Share Posted October 8, 2007 Hi all, The first thing to consider is did you take 2 months rent in advance and NO deposit or did you take 1 months rent in advance and 1 months DEPOSIT at the start of the tenancy. The tenancy agreement should confirm whether you only took rent or whether you took rent and deposit. If you took rent and deposit and then failed to protect the deposit then, as rodent says, you should protect it now (and it appears as though you have now sent it to the DPS - which means although you broke the law by not protecting it within 14 days you have now, in my opinion, rectified this situation. Regarding the Section 21, if the tenant does not leave peacefully at the end of the 2 month period defined in the Section 21 notice then you will need to complete an N5B form (accelerated possession procedure) and submit it to the court to get an eviction order. The N5B form specifically asks for a copy of the Deposit Protection Certificate (if the tenancy commenced on or after 6th April 2007). Now that you have a DPS protection certificate then you can comply with the terms of the N5B form. The fact that you had not protected the deposit when the Section 21 notice was served does not, in my opinion, invalidate the Section 21 notice. In other words I don't think you will need to re-serve it again. Good luck Mark thanks mark for your input....i do hope u are right.. i have never served any such notice via the courts, the form N5B, does this , mean that i will need a solictor/barrister or can i obtain form from local county court,and request court order myself? and how long does the accelerated procedure take.i am desparate to get rid of this pain in my life... thanks again for your reassurance. khan Link to comment Share on other sites More sharing options...
khanzenab Posted October 8, 2007 Author Report Share Posted October 8, 2007 If no bond is mention on AST ? and in cash ? and no receipt given for it ? .......then it will be very difficult to prove that 1 a bond was handed over at all ? 2 if it was handed over, just when that happened ? As you have now protected it ...what date did you say that you received it? And what documentation exists to "track" the bond ? Simon hi simon, and thanks for your continued support. i took the advance on the 7th April 2007, a week before the start of the tenancy period (14/04/07) the receipt copy given to tenants stated the £1075 received as advance payment for rent on the 7/04/07. on the tenancy agreement it states that 2 months advance is taken, with mention of deposit of £125 for the dishwasher only.( ie £475 pcm times 2 months , plus £125 for dishwasher deposit) i set up the dps on the 3rd oct 2007,and have received email confirmation that funds are now active in the account... Link to comment Share on other sites More sharing options...
khanzenab Posted October 8, 2007 Author Report Share Posted October 8, 2007 If no bond is mention on AST ? and in cash ? and no receipt given for it ? .......then it will be very difficult to prove that 1 a bond was handed over at all ? 2 if it was handed over, just when that happened ? As you have now protected it ...what date did you say that you received it? And what documentation exists to "track" the bond ? Simon hi simon, and thanks for your continued support. i took the advance on the 7th April 2007, a week before the start of the tenancy period (14/04/07) the receipt copy given to tenants stated the £1075 received as advance payment for rent on the 7/04/07. on the tenancy agreement it states that 2 months advance is taken, with mention of deposit of £125 for the dishwasher only.( ie £475 pcm times 2 months , plus £125 for dishwasher deposit) i set up the dps on the 3rd oct 2007,and have received email confirmation that funds are now active in the account... Link to comment Share on other sites More sharing options...
Simon Dewsberry Posted October 8, 2007 Report Share Posted October 8, 2007 I think Mark has shown the only route to follow on this occasion ! Simon Link to comment Share on other sites More sharing options...
J4L Posted October 8, 2007 Report Share Posted October 8, 2007 Trenners : "which means although you broke the law by not protecting it within 14 days you have now, in my opinion, rectified this situation." Not TOTALLY convinced that this would stand up in court if the T actually proceeds. Law states that it has to be . . . and if not . . . . then 3x . . . . etc The Tenant still has a case IMHO. "the receipt copy given to tenants stated the £1075 received as advance payment for rent on the 7/04/07. on the tenancy agreement it states that 2 months advance is taken," If this is stated on the receipt then of course no deposit was taken on the property, according to your wording. Monies only exchanged hands for rent, regardless of the amount and regardless of how it was worded (1month in advance, first month, last month etc) so personally I wouldn't worry about this. I'm not too sure though about the dishwasher, and WHY you would take a "deposit if they wished to use it" (maybe somebody could enlighten me on this) and whether this "deposit" would be covered by the TDS at all because it's not really a deposit against rent which is what the TDS scheme was set up to do. Link to comment Share on other sites More sharing options...
khanzenab Posted October 9, 2007 Author Report Share Posted October 9, 2007 Trenners : "which means although you broke the law by not protecting it within 14 days you have now, in my opinion, rectified this situation." Not TOTALLY convinced that this would stand up in court if the T actually proceeds. Law states that it has to be . . . and if not . . . . then 3x . . . . etc The Tenant still has a case IMHO. "the receipt copy given to tenants stated the £1075 received as advance payment for rent on the 7/04/07. on the tenancy agreement it states that 2 months advance is taken," If this is stated on the receipt then of course no deposit was taken on the property, according to your wording. Monies only exchanged hands for rent, regardless of the amount and regardless of how it was worded (1month in advance, first month, last month etc) so personally I wouldn't worry about this. I'm not too sure though about the dishwasher, and WHY you would take a "deposit if they wished to use it" (maybe somebody could enlighten me on this) and whether this "deposit" would be covered by the TDS at all because it's not really a deposit against rent which is what the TDS scheme was set up to do. thanks for that advice again.. i have specifically stated that the advance is for 2 months advance rent. there is no mention of bond anywhere on the tenancy agreement. i have specifically said also the £125 deposit is for the dishwasher and wil be returned at the end of tenancy if dishwasher in clean condition and working order.the reciept aslo stated that the total amount taken is for 2 months advance rent. i have only gone and protected the advance in the DPS as i became unsure whether the advance maybe seen similarly to a bond? , hence wanted to rectify the problem if such problem occurred. the tenant was promised full return of advance and deposit of dishwasher on 3 occasions with my witness, as he said that he had found another house, and required the money asap for removal costs and bond purposes. i had no hesitation to return money asap to get rid of tenant.little did i know that he was playing mind games and buying time, to put in a cliam near the end of tenancy for not protecting his so called BOND. can you please advise me whether there is need for a solicitor to serve the N5B (accelerated possession order) or will there be need for legal services at this stage.also can notice 21 be served alongside the court possession order, to avoid wasting time after 2 months of serving possession order, and realising that not. 21 was required again, as first one did not stand becoz bond not protected? would welcome more views please. many thanks khan Link to comment Share on other sites More sharing options...
www.landlordaction.co.uk Posted October 10, 2007 Report Share Posted October 10, 2007 i let out my property on the 14th april 2007, on a ast,but was unaware of the bond deposit scheme, hence took 2 months advance rent as i had done on previous tenancies. i also took £125 deposit for the dishwasher i had in the property,if the tenant so wished to use. i served notice 21 on the 2nd aug 2007,giving over 2 months notice to vacate the property. the tenant as taken advice from SHELTER that i cannot evict,as no bond deposit scheme set up, but i have all intentions of repaying advance on leaving. i have contacted DPS and have been advised that bond can be deposited even now, regardless of the fact tenancy expires in 10 days, which at least holds up that you have intention of paying the bond back. the preferred timescale is 14 days. can any plz advise whether this will hold up if i had to evict, and request a court order, or will i have to restart again with notice 21 again.. yours view will be grreatly appreciated.. a new landlord Link to comment Share on other sites More sharing options...
www.landlordaction.co.uk Posted October 10, 2007 Report Share Posted October 10, 2007 Khanezab The Landlord will needs to register it now by visiting http://www.depositprotection.com. Once registered he needs to make tenant aware and apologise to the tenant for delay saying he was not aware of the new legislation. Also make the Landlord aware that it will be to the tenants discretion whether he wishes to commence his own court action against the Landlord because he has failed to comply with this legislation. It is imperative for the Landlord to get this money registered as soon as possible. Please note failure to register the deposit does not invalidate the notice but Court action can not commence until this procedure has been carried out and the tenant must be notified. Regards Johnathan Link to comment Share on other sites More sharing options...
khanzenab Posted October 10, 2007 Author Report Share Posted October 10, 2007 Khanezab The Landlord will needs to register it now by visiting http://www.depositprotection.com. Once registered he needs to make tenant aware and apologise to the tenant for delay saying he was not aware of the new legislation. Also make the Landlord aware that it will be to the tenants discretion whether he wishes to commence his own court action against the Landlord because he has failed to comply with this legislation. It is imperative for the Landlord to get this money registered as soon as possible. Please note failure to register the deposit does not invalidate the notice but Court action can not commence until this procedure has been carried out and the tenant must be notified. Regards Johnathan thanks johnathan, i have already deposited the ,money with dps and have had email confirmation that fund are active. ( 3rd oct 2007) the expiry date is 14th oct 2007 for end of 6 months ast...however i do query whether the 2 months advance rent should be seen as bond on the property. can you please clarify more... i have given tenants a receipt stating 2 months advance taken dated 7/04/97, a week before tenancy start date.. interesting, you say, "failure to register the deposit,does not invalidate the not.21. plz, plz, johnathan,can you please let me know where you have got that info. from, as i do need support evidence to back notice 21 will stand..i served notice 21 on the 2nd aug 2007, giving tenant over two months notice Link to comment Share on other sites More sharing options...
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