Unsecured deposit situation

[Widdymax]

Does anyone know if a precedent(sp?) has been set regarding the deposit protection scheme. My tenants moved in before April 2007 so it wasn't necessary to register their deposit. Had a few bumpy moments with these tenants but stuck with them. However, if I do need to issue a section 21, what would be my legal position regarding the unregistered deposit. Have had 2 different answers from 2 property lawyers so a bit confused.

[Richlist]

Absolutely amazing !!!!

Why would anyone ask a solicitor a question and then....unhappy with the answer, go and get a second opinion?

If I were in your shoes I'd ask my solicitor for his opinion and then ACT on it.....not go see another solicitor. To compound the situation you are now prepared to ask invisible, unknown people from an internet forum for their opinion. I find it quite incredible.

I know the answer but I'm not going to bother to answer it cos you will probably still be asking the question this time next week.

Use the answer from the first solicitor, act on it and if he is wrong then take action against him/her for damages/ out of pocket expenses.

[Widdymax]

Thank you for your answer. To clarify, I have been to a Landlord's property expo where there were stands with solicitors, agents etc. vying for our business. I asked a couple of them this same question and received two completely differerent answers. I thought I might throw it out to other landlords on a forum in the hope that someone might just wish to pass on their experience/knowledge.

[Carryon Regardless]

Here we have seen a good few sent in the wrong direction by those that purport to know, solicitors and the like.

My view is that life is to short to take on a battle that could have been avoided, I commend you desire to get correct information.

We here though do purport to know so the reliability of the answer may be questionable, but you will get mine. When others read I'm sure theirs will follow.

As protection of the deposit isn't required for your rental I don't see how you could be penalised for not protecting it.

I hope this helps, I like to be helpful where I can

[Widdymax]

Thanks for your reply COR,it is exactly what one of the solicitors told me (provided that no new AST's have been issued), However the other solicitor said that it could be considered a new agreement if at the end of the fixed term, the tenancy became a periodic tenancy. If this happened after April 2007, there could be a problem when issuing a Section 21. Thats why I was wondering if anyone had info on whether a precedent had been set yet for a case like this. Richlist says he knows the answer. Perhaps he could be so kind as to enlighten me?

[Carryon Regardless]

A fixed term AST rolls into a SPT, I can't see how this can be viewed as a new agreement as the terms of the original AST 'roll over'.

I would question where a 'new agreement' has been created.

[Grampa]

I see where the second solicitor is coming from with his comment about SPT but he is incorrect regarding the deposit. But saying that you only need a smart arsed solicitor to argue the point in a court hearing and you could find yourself on the wrong side of a x3 claim.

As you havent served a s21 yet why dont you protect the deposit anyway you have nothing to lose.

[Melboy]

I have a tenant who has been in a property of mine prior to 2007 and I do not have his deposit protected because by law it was not required and there is nothing stated to say that the law has been changed to cover pre 2007 deposits. No new AST has been raised since that ruling came in either.

Mel.

[Grampa]

I agree with you Mel but i am sure I have come across some case law which stated a SPT was a new tenancy. And after a recent court case I went to regarding the setting aside of a section 8 possession for disrepair the judge was adamant it couldnt be set aside but a very clever solicitor told the judge she was wrong and the judge rolled over without a fight..

So you never can be too carefull and the law isnt black or white.

[Carryon Regardless]

Agreed the law is definitely an ass, and makes an ass of all apart from the vultures.

Now the argument that a SPT is a new tenancy would mean repossession could always be successfully defended.

We issue a S21, but by the time it's 'expired' there has been 2 new tenancies, at least. The repossession is then for a tenancy that has since terminated so a new S21 would be needed, but pointless.

[Guest caravanj]

Does anyone know if a precedent(sp?) has been set regarding the deposit protection scheme. My tenants moved in before April 2007 so it wasn't necessary to register their deposit. Had a few bumpy moments with these tenants but stuck with them. However, if I do need to issue a section 21, what would be my legal position regarding the unregistered deposit. Have had 2 different answers from 2 property lawyers so a bit confused.

If an AST becomes a periodic tenancy then the periodic tenancy has the same legal status & conditions as the preceding AST so on that basis I don't see why you would have had to use the protected deposit scheme.

[Richlist]

OK.....lets try to put you all out of your misery:-

It should be self explanitory and I've underlined those bits that seem to relate to the OP

This from the DPS site

If you choose to secure your deposits with The DPS, you can secure deposits taken before 6th April 2007 but you do not have to under the terms of the legislation. The legislation only applies to Assured Shorthold Tenancy (AST) agreements signed and deposits taken on or after 6th April 2007, and tenancies which are renewed for a further fixed term after 6th April 2007. It does not apply retrospectively.