deposit and section 21

[jan1]

Hi Everyone,

I have just become a member and need your help. for the first time ever i let a house out last may (2011) with a 12 mth agreement, but as i have never done anything like this before i did not know i had to protect the deposit. i only found out this june (after agreement went over to a periodic one. I then protected it but i have since fell out with the tenant, who is forever late with the rent and pays what she wants when she wants. My health has changed and i decided to ask an agent to take over the running of the house and wrote the tenant a letter. i received a threatening text back telling me i have broken housing laws, rules and regs and that she could prosicute me but she isn't saying what laws i have broken.

Now i want her out of my house and need to serve her with the section 21 but someone has said i need to give her back her deposit before i can do this. is this true and what if she trashes the house after? her agreement ended on may 14th 2012 so do i give her the 2mths until 14th of ???

i have not got the money to have to pay her 3x the deposit but i will borrow it just to see the back of her but apart from that does anyone know what else i will have to pay along the way. I know the fee is £175 but what about her costs? she works and have a good job where the onlt income i have is the £450 pcm off her when she pays it.

any help is very much appreciated, thank you very much.

[LLAW96]

For the legal position see the subject "can deposits be protected late" posted on 30 August the position is set out at length there. If you tried to pay in the deposit after the amnesty period (up to 30 May 2012) it should have been returned to you. In order for your s.21 notice to be valid you will have to have returned the deposit to your tenant or entered into a compromise agreement. It is not an automatic 3 times the deposit the court now has a discretion. First thing first return the deposit to her, then serve your s.21 remembering it must be 2 months ending on a last day of a period of the tenancy and then issue your claim for possession.

[LLAW96]

In relation to the court costs, if you have a written agreement you would issue your claim under the accelerated (form n5b), this is a claim for possession on the papers only. If she raises a defence there may be a hearing. If the defence is based solely on her claim for failure to protect the deposit then you you should be granted an order for possesion, her claim would then be adjourned off to the small claims track of the county court (albeit deposit disputes should be allocated to the fast track they just dont do it) The issue of her costs should not arise. You do not seem very confident and it may pay dividends to instruct a solicitor (one who has experience in landlord and tenant law) to issue the claim for you.

[jan1]

Hello LAW,

I thank you very much for your advice and you are right i am not very confident. I have downloaded a section 21(4)(a) but it seems short and sweet so i am not sure if it will be a legal one, I want to give more than 2mths notice as I am going to a relatives abroad for 5wks from 12th dec to 14th jan 2013 so was thinking of serving the notice in november to require possession after 14th feb. Is this possible?? Her tenancy was from 15th may 11 to 14th may 12 so do i say i require possession after 14th feb. i have looked at solicitors but i don't have £2,000 or more so i will have to go it alone but i don't want it thrown out. I am having to get a solicitor to fill in the court forms which will be upwards of £600 but thats as far as i can go i'm afraid.

Can i ask also when i give her the seposit back? should it be just before i issue sec 21 or asap, sorry to be a burdon but i need as much knowledge as possible. thank you again law.

[jan1]

I forgot to tell you that i paid to protect the deposit (which i still have) it's the insurance one. do not know if this makes a differance.

[LLAW96]

There is a bit of a debate as to when the last date of a period of a tenancy on this forum once the statutory periodic has kicked in. Does your notice have a rider clause, it should say something like "The landlord requires possession of the property after the (date) or if later after the end of that period of your tenancy which will end after the expiry of two months from the giving of this notice"?

You dont need to give more notice than is required, just comply with the law and then when you return from abroad you choose the date you issue your claim. Giving longer notice than you need to will just fetter your discretion to issue your claim at the earliest possible date.

It does not cost 2k for a solicitor to issue this kind of claim. Service of s.21 notice £25.00 to £50.00, preparing the claim for possession 1hour at say £150.00 per hour. Without a hearing a competent solicitor could do this for £200.00 £300.00 max. I should know, as long as I get the correct paperwork it takes me about 36 minutes to complete the summons form, notice of acting and attachments. Its not rocket science or complicated.

You need to return the deposit before you issue your s.21 notice otherwise the notice is invalid.

[jan1]

Hi law,

On the agreement it says 1.4 PERIOD OF TENANCY. The tenancy starts on: 15th may 2011 (inc that day). The period of the tenancy is for 12 month from the start of this tenancy. unless the landlord or tenant has brought the tenancy to an end at, or before, the end of the period, the tenancy will continue on a month to month basis until terminated in terms of section 5 of this agreement.

SECTION 5 ENDING THE TENANCY: The tenancy may be ended in any of the following ways..

When the period of the tenancy as agreed in paragraph 1.4 has expired or

After the term of the tenancy as outlined in paragraph 1.4 has expired and the tenancy has continued on a month to month basis either party must give one months prior written notice to terminate the tenancy or

In the case of material breach to the agreement by either party one month's prior written notice must be given to the other party to terminate the tenancy.

I hope this helps, but I know where it says one month's notice, I have to give 2 month's.

All the solicitors and legal people i have spoken to have quoted alot of money, if i could find someone who charges the amounts you have quoted then i would deffinately go for that solicitor.

Are you a solicitor? could you do it? Her's business if you want it.

[LLAW96]

The clause I am asking about will be in the s.21 notice you downloaded.

[jan1]

SO SORRY LAW,

It says: I give notice that I require possession of the dwelling house known as xxxx after the end of the period of your tenancy which will next end after expiration of 2 month's from service of this notice upon you.

apart from her address and my address and the signature and date thats all it says.

[LLAW96]

That form of notice would be valid. You would need to have proof of service, handing to her her in person, pushing it through the door yourself. Note all of this has to be done after you have have returned the deposit otherwise your notice will be invalid. Leave it three months and then issue your claim.

[jan1]

LAW you are fantastic i appreciate all your advice. she wont take anything off me so would it be ok to take it to the post office and get proof of posting? if i gave her the deposit back in october then sent her the section 21 in november that will be fine won't it?

[LLAW96]

Proof of posting can be rebutted on evidence of the tenant. You provide a certificate saying you posted it, she files a defence saying I did not receive it. S196 Law of Property Act 1925 will not assist as no doubt she will not accept a recorded delivery envelope. You could try sending it special delivery, I find very few people reject a special delivery. Nothing beats personal service I find. If she will not accept it post a copy through the door by hand and keep a copy and record of when it was served. Take a witness with you and if need be they can verify service of the notice via a witness statement.

[jan1]

Proof of posting can be rebutted on evidence of the tenant. You provide a certificate saying you posted it, she files a defence saying I did not receive it. S196 Law of Property Act 1925 will not assist as no doubt she will not accept a recorded delivery envelope. You could try sending it special delivery, I find very few people reject a special delivery. Nothing beats personal service I find. If she will not accept it post a copy through the door by hand and keep a copy and record of when it was served. Take a witness with you and if need be they can verify service of the notice via a witness statement.

[LLAW96]

Giving the deposit back/reaching compromise over its return is a priority. If she will not take a notice from you will she take money? As a back up I presume you have her bank details and the money can be returned to her that way.

[Richlist]

Many years ago I had a tenant who I suspected would be quite awkward with regard to an S21 delivery by me in person and I realised that registered and recorded delivery might not work either.

So, I packaged up the S21 in a small box......so it looked like a parcel ......and had it delivered by a courier firm with explicit instructions to obtain a signature on delivery from the tenant. It worked, they delivered, I had proof or service.

I have no idea wether it was legal, acceptable, appropriate or otherwise. Its just that sometimes you have to think out of the box to achieve your desired goal. The point is that there are more options than just in person, registered mail and recorded/signed for mail.

[jan1]

that is my problem, i do not have her details, she has never given them to me. all i can do is send her a cheque as she won't take money off me or sign anything. she has been very difficult and never puts anything in writting and won't speak to me on the phone. she will only text me.

i have spoken to an afent to take over the running of it but she won't answer or return his calls. she owes me last month's rent and it is due again on 15th of this month, I have had alot of illnesses in the last 2 yrs so wanted to off load all this but she is making life difficult for me and thats why i now want her out.

i may post the section 21 through the door with a witness and get a special delivery to be on the safe side.

Then i just have the problem of the court forms when the time comes.

[jan1]

Thanks for that option richlist, it's a thought but knowing my luck it won't be legal and she will have me done for it so i'm abit worried at doing some things.

[LLAW96]

I like that option Richlist, not sure if most people can rum to your budget though.

[LLAW96]

run to your budget, that should have been. But its hot here and a drink would go down well.

[Grampa]

Many years ago I had a tenant who I suspected would be quite awkward with regard to an S21 delivery by me in person and I realised that registered and recorded delivery might not work either.

So, I packaged up the S21 in a small box......so it looked like a parcel ......and had it delivered by a courier firm with explicit instructions to obtain a signature on delivery from the tenant. It worked, they delivered, I had proof or service.

I have no idea wether it was legal, acceptable, appropriate or otherwise. Its just that sometimes you have to think out of the box to achieve your desired goal. The point is that there are more options than just in person, registered mail and recorded/signed for mail.

One of the reasons I joined these forums was pick up the odd tip or gem of infomation. All I can say is that is one of the best to date.

[LLAW96]

If you are going to continue as a landlord there are a number steps you will have to take in order to protect your interests, having bank details of your tenant would seem prudent. Then your only option is to send her a crossed not negotiable cheque. I take it you have thought through all of the alternatives, does she have a paypal account? has she paid by cheque at some point? her bank details will be on it, did your agent take any bank details, or verify her status by copying a bank statement? Is it possible to enter into a compromise agreement? as a last resort can you ping the money to her phone via barclays? In any event all the best, dont be bullied or scared by your tenant, you are the landlord stand your ground and take control.