In accordance with the Housing Act 2004, any tenancy deposits taken on or after 6th April 2007 must be protected in a government-approved scheme. This is a mandatory requirement which means that there may be consequences should you choose not to comply. The purpose of this is to prevent landlords from unfairly withholding the deposit at the end of the tenancy. If you have failed to put your tenancy deposit in a scheme within 30 days of the date the deposit was paid, the court can order you to pay it into a tenancy deposit protection scheme’s account within 14 days. This would be getting off lightly. The tenant may claim tenancy deposit compensation where the court can order you to repay up to three times the amount of the deposit to the tenant.
Furthermore, according to Section 215 of the Housing Act, evicting your tenant may prove to be problematic where a tenancy deposit has been paid in connection with a shorthold tenancy and the deposit is not being held in accordance with an authorised scheme. The Act states that in this instance a Section 21 notice cannot be served. If you are unsure of the process of deposit protection, Vantage Landlords Legal Services can advise you, thus saving money and hassle in the long run. Although we can draft or review a Notice to Tenant to Quit, we would initially require evidence that the deposit is protected.
Even late protection of a tenancy deposit by a landlord will not avoid liability. The tenant can still seek compensation even if they have left the property.
Another hurdle you may face when trying to evict your tenant is if you have not provided them with the prescribed information, (as mentioned in ‘Are you legally compliant in letting your property’). This should be issued on the first day of the tenancy (for tenancies beginning on or after 1st October 2015). The key documents are the ‘How to rent – the checklist for renting in England’ guide, Gas Safety Certificate, Energy Performance Certificate and the Tenancy Deposit Certificate. Instead of waiting for the time to come where you want to evict your tenant, sending them the prescribed information and waiting for them to receive it before you can take action, give it to them as soon as they move in. That way you’re protected from day one and do not have to worry.
If you find that you are not legally compliant, bear in mind that it is better late than never. Late protection of a deposit or provision of the relevant prescribed documents may not evade some kind of liability, however they can be mitigating factors in claims brought under section 214 of the Housing Act.
Next time; how to evict your tenant.