From 6 April 2012, there is a new procedure to be followed in respect of serving a section 21 notice if a deposit has been received but not protected within 30 days. In addition, prescribed information must be considered before serving a section 21 notice.
Deposit Protected but no (or incorrect) Prescribed Information Given
Prescribed information is relatively straight forward if a deposit has been protected perfectly fine, but the prescribed information has not been given, or not all the information has been provided. In this case, the information may be given at any time even after the 30 days and the section 21 notice may be served after. [section 215(2) Housing Act 2004] (not linked as not yet updated on the government legislation website).
Please note that despite the guidance below, if a tenant makes a claim, the landlord will have to pay compensation if 30 days has been missed and there is no defence to this. The amount payable will be between the amount of the deposit and up to three times deposit [section 214(4) Housing Act 2004].
Follow these steps for prescribed information
- Download our assured shorthold tenancy agreement for the scheme of your choice (F002 – Deposit Protection Service, F003 – MyDeposits).
- Ignore the first pages which are the tenancy agreement and the last two pages which are the guarantee agreement. This leaves you the prescribed information only.
- Complete all the prescribed information completing all boxes (including for example, telephones, emails, post tenancy address etc.)
- Print 3 copies. Retain one in your file. Post other two to the tenant obtaining a proof of postage from the post office (free of charge). A covering letter should ask the tenant to sign both copies and return one to you. Don’t worry if they don’t return a copy (that’s why you’ve put one in your file). The law requires you give the tenant “the opportunity” to sign the prescribed information.
- If there is a “relevant person” (person who paid the deposit on behalf of the tenant) then, send a further copy to them asking them to sign.
- Allow at least 3 – 4 days for delivery.
- Serve section 21 notice
Deposit Not Protected Within 30 Days
Where the deposit either hasn’t been protected at all, or wasn’t protected within 30 days, then, no section 21 notice may be served until a new procedure is followed as described in the newly added sub-section 2A of section 215 Housing Act 2004.
Now, a section 21 notice may only be served if:
(a) the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or
(b) an application to a county court has been made under section 214(1) and has been determined by the court, withdrawn or settled by agreement between the parties.
In reverse, (b) above is dealing with the situation where the court has already ordered payment of the penalty to the tenant in respect of a failure to protect the deposit. Therefore, if the landlord has had the penalty imposed, he may then serve a section 21 notice without doing anything further.
The part that is of main interest is (a) above. Now, if a deposit has not been protected within 30 days, the landlord must either repay the deposit in full to the tenant or agree deductions with the tenant perhaps for example by offsetting the deposit from unpaid rent.
It is submitted, the agreement part will be strict, so for a landlord to simply say it was agreed verbally will not be sufficient in our view. We have prepared a useful form for the purposes of obtaining an agreement for deductions from the tenant (F053).
Please note
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We have delivered a section 21 notice to our tenents but we did not register the deposit. Does this invalidate the notice.
Yes, the notice is invalid.
Is it possible (if so how) to register a deposit with a scheme after the assured short hold tenancy agreement date has expired and the tenancy is on a rollover tenancy.
I wish to do this prior to issuing a section 21 notice.
No, you must repay in full or agree deductions (e.g. agree in writing to deduct from rent arrears)
Assuming deposit has not been protected in time, Can you tell me if the deposit has been returned to the tenant (with agreed deductions to offset arrears) can a certain type of s21 notice then be served on the tenant to leave? If so what type of s21 please?
Yes, a section 21 can be served after repayment. For which one, see our wizard here.
i’m a tennant, I moved in, in 2003 and my deposit was never protected, my landlord has served me with a section 21, the estate agents i rent with told me that the tenancy depoit law doesn’t apply to me due to the date i moved in- is this true?
Absolutely, deposit protection schemes only apply to tenancies which commenced after 6 April 2007
No it does not,it also apply to tenants that moved in before 2007.
This article was dealing with changes introduced in 2012 by the Localism Act. The changes you are discussing were made by the Deregulation Act in 2015 for which please see here.
If the deposit was not secured and I wish to pay it back to the tenant in full so I can proceed with a section 21. How do I go about doing this? What is the best method? How can I document that the deposit has been returned as to provide proof to a court? I do not have bank details for the tenant, he has always paid in cash. And what if he refuses the refund?
This is precisely the type of thing we can help subscribers to the Guild with. Please consider joining the Guild and we will be able to assist.
Send a cheque to the tenant, saying that you are returning his deposit. No need to say any more. Write on the reverse of the cheque “return of full deposit paid” and get proof of posting. If the cheque is paid into his account and it clears, there’s your proof.
I have only deposited my tenants deposit as I was unaware that this had to be done how long do I have to wait to serve a section 21 please? Is it 30 days
To keep it fair on those that are paid members, we can only reply if you are a subscriber to the Guild. Please consider joining and we will then be able to assist.
Many thanks
Guild of Residential Landlords
I didn`t protect the tenants’ deposit on time. Yet, the tenants are not paying the rent 3 months. How can i evict them? If I go for the deposit protection now, can I still evict them by Section 8? Thanks.
Me and my partner is renting the room, our deposit was not protected by agency, less them mouth ago agency send us an email that landlord want his flat back,a nd they give us one mounth notice to leave the flat. Is anythhing we can do at this situation? Thank You
My letting agent prescribed me with the wrong deposit scheme at the beginning of my tenancy. After I moved out and having problems to agree about the amount of deposit I should get back, I realized I wasn’t protected with that scheme. I asked them and they have said it hasn’t been a mistake in their part, they had provided me with the correct information and my deposit has been protected from the beggining of my tenancy. My question is: has they broken the law? Have they lost their rights? Or they have done everything properly? Thanks
Please consider joining the Guild of Residential Landlords and then we can look at this in more detail and advise accordingly. That makes it fair on those that are members.
i moved into my rented property and it took landlady 6 months to put my desposit in dpsi have just moved out 14 months and she wants all my deposit back for general wear and tear has she broken the law by leaving it so late i need to stop her taking all my deposit i was a good tennant and kept house clean and tidy and never missed a weeks rent
hi there is no deposit taken from the tenant, now how and which form i need to serve s21 notice?
Our wizard will determine the appropriate notice needed and check all steps have been completed: http://www.landlordsguild.com/possession-notice-guidance