Tenants Deposits

When you take a deposit you are required to not only protect the deposit within 30 days but also give the tenant prescribed information regarding the deposit. This is called Initial requirements.

By not fulfilling these requirements, the Landlord may face a compensation claim of up to three times the deposit. These are:-

The deposit rules and serving a section 21 notice.

A section 21 notice cannot be served unless the deposit was protected within thirty days and it cannot be protected late. Please do not think that you can, you cannot.

 

Instead, it must be returned, or the tenant (not the landlord) can use the deposit against rent arrears or other agreed deduction e.g. a repair.

 

The agreed deduction is done by approaching the tenant with a letter for them to sign which says 'Dear Landlords name, please use my deposit of £1000.00 against my arrears of £2000.00 which reduces my arrears to £1000.00. Or please use my deposit of £1000.00 against the damage to the kitchen units.

The least ambiguity the better and this must be signed and dated by the tenant. Please don't use a text message, you need a signature. This paper trail is essential to show that the deposit has been 'spent' and does not 'exist' when the notice is served.

 

Do not serve the notice at the same time, it must be after. We always allow two day so there is no argument. No convincing paper trail, no order. Not sure about this please call Eddie 07853250959.

Deposit prescribed information

You can serve the prescribed information late for the purposes of serving a valid section 21 notice. This rule is contained in The Localism Act. But you must not serve the section 21 notice at the same time because any issues must be dealt with 'prior' and therefore the notice must be served after. We allow a couple of days to avoid argument. Serve either by hand or by ordinary post and obtain a certificate of posting.

It seems unfair that the landlord has to return the deposit even if the tenant is in arrears. We see it as a punishment for not adhering to the deposit rules. Having returned the deposit, there are no deposit issues and the best way to look at it is not that you are giving the tenant his money back but that you are enabling a trouble free eviction process.

Please call if you have a specific situation and would like to discuss it.

The serving of documents

If the tenant is going to claim he didn't get it then there is no best method of serving a notice because which ever way it was served it will end up as a defence and therefore a hearing.

I recall all those years ago when I first began helping landlords with bad tenant how this subject was my biggest concern. You serve a notice two months goes by it gets to a court process to find that the tenant has no scruples. 

If he says he didn't get it and it was hand served then its your word against his but you have probability on your side. It would be better to have a witness and a photograph with a time and date on it. Even a bit of email evidence to someone 'I have just hand served the notice' adds to the probability.

It is safer to assume he is going to say he didn't get it.

We serve notices by sending one each by ordinary post and one by recorded delivery. Some do sign for it and scruples dangle so low off the planet that we have had cases where they say they didn't get it even though they signed for it. 

The strategy is to avoid the argument in the first place and to be aware that this first action is a first line of defence. So more than one by ordinary post adds to the weight and psychology that it is no use saying I didn't get it because I have two.

Having a condition of service in the tenancy agreement really helps. Any notice is sufficiently served if left at the property, or sent by ordinary post with a certificate of posting or sent by recorded delivery. If there are no conditions of service in the tenancy agreement it opens the door to a defence and the lack of the condition reduces your position. 

Please don't put and served by recorded delivery because you are creating a term which needs all forms of service to apply. 

On some web sites I have read that serving by hand is considered to be the 'the best' way of serving a notice. Yet hand service has always produced in our experience the hardest and most difficult hearings. Whereas having a third party deliver the letter with a certificate of posting and a recorded delivery slip gives third party evidence. If you serve by hand also serve by post. This is likly to avoid the I didn't get it claim.

 

More on serving a section 21 in England here. 

And for serving a section 21 in Wales here

The Process Experts Ltd              Email eddie  at  theprocessexperts.co.uk

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Greenfield

Oldham OL3 7NH                                       

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