Failed to use DPS for deposit

Hi All,

My tenant moved in last year in December 2020. At the time i did not use the DPS for his deposit, yes my mistake. I did do the EPC and gas certs, however i have not renewed them since.

The tenant has fallen on hard times and recently cannot afford the rent anymore and is in arrears by over 4 months, i have asked him to leave but he said he cant afford to leave either, as in he doesnt have the money for the deposit for a new house.

I believe he moved out of the property due to a separation from his wife. His wife is not on the tenancy contract. He himself has also lost his tenancy contract.

Will i have much of a leg to stand on if i issue a section 8 if this goes to court, considering i didnt use the DPS and he doesnt have the tenancy contract?

If i signed an agreement to cancel his contract and make a new one with his wife, thereafter actually using the DPS for the deposit, does the new contract supersede the old one?

Is there anyway i can have a very small contract that expires days after she signs it so that i can begin the legal eviction notice?

Deposit not properly secured and an expired gas cert. Did you serve the How to Rent guide and Prescribed Information? You can’t serve a S21. Your tenant can report you to the local council who will hammer you for the lack of gas certificate and you can be fined up to x3 the deposit amount for not securing the deposit. I believe his wife has a deemed tenacy. He has a valid tenancy irrespective of where the piece of paper is. He has the keys. If he can prove he paid you a deposit and rent, that is sufficient. Get a solicitor and some landlord training.

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“serve the right to rent guide”?

Yeah i have seen the mistakes i have made and yes i need landlord training. Mistake, mistake and mistakes. Learning as we go along.

But can someone help me on what i can do next?

You should have taken legal advice and rectified the problems 4 months ago.

If you suspect him moving out now you should get him to surrender the lease and cut your losses

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Did a quick Google for you re the deposit … I didn’t protect my tenant’s deposit in time, what should I do now?

Re the gas cert - get it done NOW. It is a criminal offence not to have one. Faulty gas appliances can kill and if you don’t have a valid gas cert, you could be up on a manslaughter charge, never mind the potential of a substantial fine or jail term just for not having one.

Your EPC is valid for 10 years.

Did you get an EICR (electrical report)? If so, that is valid for 5 years normally. If not, get that done now too. There is a penalty of up to £30k for not having that too. New EICR Rules: Electrical Checks Become Mandatory for Rented Property from 1st April 2021 | OpenRent Landlord Hub

Presumably, you didn’t serve the Right to Rent guide mentioned above either? In which case, serve that now too.

I know people complain about Rent Now but I always use it because it helps you to stay compliant. It secures the deposit and serves the correct notices and serves the right to rent guide. It also prompts you for the other documents (gas cert, EICR etc) and you can upload those to the portal too so there is no doubt that the tenant has had them.

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If you use s8 grounds 8,10,11, the court will likely deduct a 3x deposit penalty from the arrears so in order to qualify as 2 months owing at the time of the court case, you will need 5 or 6 months arrears.

Alternatively, you can refund the deposit now or get written agreement to use it against the arrears and then serve all the other required documents and then use a s21 notice.

I would agree with other suggestions about speaking to a solicitor first

Thanks everyone. So if i get a written agreement saying i will use the deposit against the rent will this stand in court?

Where can i get such an agreement from?

Does anyone suggest any decent lawyers that would be helpful in my case?

Thanks

Yes it will. You just need the tenant to write to you on this basis or sign something simple. Doesnt need to be a complicated document.

Incidentally, the rent owed now amounts to 4 months in rent.

Do not add avenues of possible complication. Send him a NOTICE that you will apply his deposit to his rent arrears. List his rent arrears. Give him 7 days (or 14 days if you feel generous) to reply. Let him know that if he does not agree then he must write to let you know, and to give you his proposals for repayment. If he has not written back by a certain date, you will apply his deposit to the outstanding rent. In the deposit section of any new tenancy reserve the right to apply the deposit against the rent.

I’m not sure that a court would regard that as consent @Allan6.

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Because it is a Notice: that is notification under common law. If he does not reply then its perfectly reasonable to claim tacit consent in that he failed to give repl, even to acknowledge receipt…

It has to be active consent. The landlord would need to show the court a signature from the tenant or email from them if allowed by the tenancy agreement.

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Allan6 - Silence is NEVER consent, whether in Landlord & Tenant law, contract law, tort, or any other area of the law. You can set deadlines after which lack of a reply will open the door to actions, but that’s all.
Aisha1 - I hope that by now you have found someone to do the Gas Safe inspection and issue a certificate. That’s absolutely vital. It won’t get you out of the hole you are in but it will stop things getting any worse. I hope you have also found a solicitor to advise you.

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Aisha,
You have some problems and I suggest you speak with Possession Friend . uk
Your not going to extricate yourself from this by a few online blog comments.

No offence intended to you Allan6. ‘Tacit consent’? sounds like the kind of thing a rapist would plead when the victim didn’t refuse (probably because they were in fear of their life and couldn’t get the words out or had been gagged). No judge in the land would give this any weight. Lack of denial of consent does not equal approval - not ever.

The doctrine of notices still exists in common law. Perhaps you would like to examine that further? I offered honest advice as a professional landlord. You are entitled to your opinion which has been made clear.