Deposit scheme

[storm4385]

Please help me if you can.

I have had tenants' deposits in my possession for a couple of months or so and i failed to register them in any deposit scheme. I've been given different advice on what to do, now that there are cchanges coming into effect on April 6. Do I return the deposits to the tenants and run with a zero deposit? Or do I register the deposits, individually, with the deposit protection scheme? Note that one particular tenant is alreaby in considerable arrears with me after only 10 weeks as a tenant with me.

[Carryon Regardless]

Go on the DPS website, register as a LL, follow the guidance and register the deposits as soon as.

Don't forget to provide the prescribed info to T's after protecting.

It's all a ball ache but far preferable to being caught out.

Once protected you have a chance to recover from the deposit.

If you attempt to keep a deposit after a tenancy has ended you may find a disgruntled T goes for the compensation.

Once protected you can use a S21 for repossession.

If you do a search here you will find more info regarding the protection and why you should.

[snorkerz]

You will have to follow CORs' advice (both bits) BEFORE 5th May 2012. If you miss that deadline then you will not only be unable to serve a valid s21 without returning the deposit but you will also be liable for the civil penalty of up to 3 times the deposit value. All previous case-law loopholes close for good 30 days after the new law comes in.

[Richlist]

Its my understanding that the Legislation ALSO now requires that any unprotected deposit.....even those on tenancies commencing BEFORE April 2007, when deposit protection came into force....NEED TO BE PROTECTED before 5th May 2012.

All you landlords with long running tenancies and unprotected deposits .....please note !!!!!!

[Grampa]

Taken from the TDS Website:

I've been told that the changes apply to tenancies still running that started prior to the tenancy deposit legislation coming into force in April 2007. Is that right?

No. The Localism Act changes the time limits and penalties, but it does not extend the 2004 Housing Act legislation to cover Assured Shorthold tenancies that were in existence before April 2007. Only deposits taken for all Assured Shorthold Tenancies starting or renewed after that date have to be covered by a tenancy deposit protection scheme. Members who wish to take a conservative approach may wish to protect all deposits held in respect of ASTs by 6th May, even if they were taken before April 2007.

Disclaimer on the same website:　 This document is for guidance only and we are unable to predict how a Court may interpret the legislation. This guidance will be updated as further information comes to light from decisions made by the Courts and from the Department for Communities and Local Government.

 We also recommend that users of the TDS scheme seek their own independent legal advice in so far as the Localism Act changes may apply to specific circumstances faced by them. We are unable to accept any liability for losses incurred through a failure to do so

[Richlist]

Thats TDS opinion only and is not necessarily shared by others. TDS have added disclaimers to their opinions which say it is for guidance only and those affected should seek legal advice.

Of course, if you feel lucky, perhaps want to take a chance and not bother seeking legal advice.......thats up to you !

My understanding of the Act is that it refers to ALL tenancies.Grey areas of legislation are usually decided by case law. I wouldn't want to be the one making historical case law in the courts.

[kerbut]

Well, I am lost now, I read what Richlist had written and panicked a bit as I have one family who have been tenants for 15 years , I obviously retain that deposit (unregistered) as it is pre April 2007. I phoned mydeposits and they told me there is no need to register it under the new rules .

[Grampa]

I think to be safe you should protect. I am still digging round various companies to find out for sure, if that is possible..

But if so it isnt just protecting the deposit and giving precribed info, a new ast will be needed as well to comply with what ever deposit scheme you use.

Update:

Just called the DPS website and spoke to some idiot who seemed unsure himself then just said yes it needs to be protected. They havent even updated their website regarding the new law.

It is a sorry state of affairs if the 3 approved deposit schemes cant agree.

[Grampa]

Another example of a badly worded unclear law.

[Richlist]

duplicate

[Richlist]

Here is the link.......it clearly says it affects shorthold tenancies in place on or after 6th April 2012

http://www.legislati...article/16/made

[Melboy]

As I understand it deposits before April 2007 do not require to be registered.

I also have a tenant from that period still renting.

No doubt the fog will lift in the fullness of time when somebody gets the legislation sorted out but until then I shall just wait for the outcome.

[Carryon Regardless]

Following the RL revelation I attempted to read up on it some last night, my conclusions are inconclusive. There is confusion and differing opinion out there.

I don't believe the 'amendments' were designed to capture 'all' tenancies but with my theory of many conspiracies can see how those designing would be happy to slip that one in discretely.

At April 6 (2012) deposits are to be protected within 30 days of receiving that deposit. With pre 2007 tenancies it's more than likely that any deposit has been held for longer than 30 days so by the 6th April it's too late to be compliant with the law anyway. So we have today to protect and provide prescribed information to the T.

Problem 1, clearance of funds at the DPS takes a few days.

Problem 2, I can't get to see my T's in time anyway they aren't available even if I had the wish to facilitate this, 2 of my tenancies are relevant to this.

Problem 3, I can't be a**ed.

I can see that to protect is the safer bet but can also see little point as satisfying the latest legalised corruption can't be done.

What did I miss this time ?

Edit: A thought,

what we are discussing are the amendments to the legislation that came into being and was applicable to tenancies post April 2007.

As these are amendments to that legislation is anyone able to show that it is stated that one of the amendments is to encompass 'all' tenancies,

otherwise the amendments should only be applicable to those tenancies covered by the 2007 legislation.

[Grampa]

I am no expert on reading legalese but I dont think it is clear due to the amount of bodies who state you dont need to protect.

From Landlord Law blog:

"If it is because you took the deposit before 7 April 2007, ie before the rules came into effect so it is exempt, consider protecting now anyway – there is an outside chance that the wording of the new rules may cover older deposits."

"Because the new regulations are retrospective and will apply to existing deposits (save possibly pre 2007 deposits and those for non ASTs). AND the rules are being tightened up, so that you will no longer have the option to avoid claims by protecting out of time.

So they are sitting on the fence then

[Carryon Regardless]

My 2 deposits are £300 and £350, remember these are old deposits.

If my understanding is ok my worst case is to refund the deposit pre repossession.

[Melboy]

My 2 deposits are £300 and £350, remember these are old deposits.

If my understanding is ok my worst case is to refund the deposit pre repossession.

Me too COR. I have an old deposit of £500 which I would just return to tenant as he has been in occupation for 7 years and he is your perfect tenant. Keeps the place spotless and pays his rent on time.....what more could you ask for.

[Richlist]

Sorry folks......I seem to have stirred up a hornets nest.

I only have everyones best interests in mind.

I also have tenancies in place going back before April 2007...I haven't decided what to do yet. I have until MMay 6th (30days) to decide.

Off to sunny Spain for a few days.....hopefully you lot will have sorted out the issue/ questions by then and I will have made my mind up wether to protect the deposits or not.

Here's the Pain Smith position......seems they don't know if pre April 2007 deposits are affected either :-

http://blog.painsmit...e-localism-act/

[Carryon Regardless]

You view that you have 30 days till 6th May.

But by the 6th April your 30 days are up as you've had the deposit for years.

I take it your joining the other ex pat criminals on the Costa Del Sol RL ,

they will catch you, they will extradite you. Mind with the US extradition treaty you might well end up in Cuba, after all you have slagged off a couple of Yanks on the forums.

Enjoy.

[Grampa]

I have now spoken to the people who do our legal training who are of the view that it doesnt need to be protected but acknowledge the law isnt clear and if we are worried about it protect.

I have also spoken to the people we get our legal doc's and eviction advice from who are confidant the deposit doesnt need protecting and say they have spoken to some goverment dept who are of the same view. (nothing in writing though)

We have decided to protect anyway and give a new up todate contract once we get permission from the landlord as our current AST are so much better anyway.

My main concern was if we didnt protect and had to evict and the judge didnt know either it could go either way.

[Richlist]

Thanks for the update Grampa.

I think in your position (lettings agent) your decision is the one I'd go with.

I've given my agents a heads up this morning as they must also have lots of long term tenancies that they manage.

[Richlist]

You view that you have 30 days till 6th May.

Yes.....as the legislation is effective 6th April 2012 and said legislation provides 30 days the general consesus is that we all have until 6th May to protect deposits.

But by the 6th April your 30 days are up as you've had the deposit for years.

Yes and up to the 6th April I wasn't required to protect the deposits. From 6th April I have 30 days to follow the new procedure.

[Carryon Regardless]

Doesn't this confirm what a shambles the whole situation of tenancy law is ?

And probably many other areas of law also.

We make a mistake we are accountable, and f**k how we can be caused to pay.

Our legislators have been creating situations of confusion for, well a flippin long time. They screw up and we still pay.

There are countless number of LL's who still aren't aware of the 2007 deposit legislation, imagine how many more will be unaware of these amendments. Those that are aware, many are organisations and professionals with training, can't understand the requirements, but we are wrong when we don't meet the ambiguous requirements.

For law to work at best it needs to be respected, for that it needs credability. They've failed again, prats.

More importantly it's a sunny day out there, with the snow on the hills (loads of it here) it's a lovely view from my office.

Easter starts tonight, down t'pub with pals.

I've not had a drink all week and I know it's time cos I can't stir my tea without splashing it everywhere.

[storm4385]

Thanks for the replies.

It seems that there are ambiguities and so many uncertainties.

Would someone please confirm that, to make the best of my situation (my tenants have all been in place from Dec 2011 and Jan2012), I should register with DPS and then give all relevant details to each set of tenants.

Will I still be able to evict a tenant who is already badly in arrears after just over 2 months?

[Grampa]

Deposit protection isnt a issue when evicting using the s8 (rent arrears/owing) process. But I guess they could counter claim the x3 the deposit (if deposit not protected) which could bring any arrears/rent owing below the 2month/8 weeks limit.

Not sure if this is possible, LAW is the one to answer that I think.

[snorkerz]

Deposit protection isnt a issue when evicting using the s8 (rent arrears/owing) process. But I guess they could counter claim the x3 the deposit (if deposit not protected) which could bring any arrears/rent owing below the 2month/8 weeks limit.

Not sure if this is possible, LAW is the one to answer that I think.

That was possible but I think that since s214 claims became part 8 claims it is no longer an option.

http://england.shelter.org.uk/forums/index.php?showtopic=237&st=0&p=573&#entry573