Deposit warning: Landlord narrowly avoids £83,760 fine after failing to protect

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Given that the deposit protection rules were introduced in 2004, most landlords are aware of them by now, but people still fall foul of the rules, says Tom Entwistle.

The legislation introduced by the Housing Act 2004 gives tenants and their lawyers something of an incentive to ‘catch out’ landlords who don’t comply with the rules. They can get compensation which is a multiple of the deposit paid, depending on the severity of the breach of the rules.

The tenant can claim and the judge can award anything from one to three times the original deposit in compensation for the tenant.

The Rules:

• Landlords or their agents must protect the deposit in an approved deposit protection scheme at the right time, i.e., within 30 days of taking it.
• The landlord / agent must serve on the tenant certain “prescribed information” – as set out in the legislation including details about the property, the deposit paid and how it is being held. This information must be served on the tenant and whoever provided the deposit.

Despite the rules being reasonably clear and simple landlords occasionally get taken to court over breaches of the legislation and receive quite heavy fines because of it.

What many people fail to realise is that where tenancies have been renewed and the deposit has not been legally protected, the fines can multiply. It is not uncommon for tenancies to be renewed several times over a period of years, so fines can be payable for each and every breach when the deposit has not been protected.

Howard v Dalton

Such was the story in the case of Howard v Dalton (2019), and this was rather an extreme example of multiple fines adding to an exceptionally large amount.

Ms Howard was the tenant of Mr Dalton and entered into a tenancy agreement in 2007 paying an initial deposit of £900. On signing the agreement, she paid a further £845, obtaining a receipt which said “deposit remainer”.

Ms Howard was a long-term tenant entering into a further seven tenancies over a period of years.

The deposit was not protected by the landlord and neither was the prescribed information served on the tenant. The deposit was not protected until 2014 and the prescribed information was never served.

Ordinarily, had the deposit been protected on the first tenancy and the information provided there would have been no requirement to re-protect or re-serve the notice on the subsequent tenancies.

The landlord was vulnerable to a claim.

Sure enough, Ms Howard brought a claim for compensation and the claim was defended by Mr Dalton. The surprise for the landlord was the amount of the claim.

Ms Howard’s claim included fines for 8 tenancies and for failing to protect a deposit of £1745. She claimed that the failure to protect and the failure to serve the notice amounted to 16 separate offences all subject to a fine of 3 times the deposit amounting to £83,760.

The district judge went along with the claim. It was held that there had been two breaches (failure to protect and failure to provide prescribed information) for each of the eight tenancies, so 16 breaches in all. The court awarded the tenant compensation amounting to three times the deposit of £1745 for each breach, making a total of £83,760.

The landlord, perhaps picking himself up off the floor, appealed.

Appeal court decision

It was a fact that the 2007 tenancy deposit had not been protected until 2014, there was no argument over that. The fact that no deposit had been protected meant that no prescribed information, a key requirement, could have legally been served.

The court identified that within S.214 Housing Act 2004 was provided a claim for damages for either a breach of s.213(3) or s.213(6) – it could be one (failure to protect) or two (failure to serve) it could not be both. The penalty was therefore to be one fine per tenancy.

Fortunately for Mr Dalton, Ms Howard had failed to mention in here pre-action correspondence that the eight tenancies involved would be relied on at the trial when claiming compensation. 

Mr Dalton raised this point at the appeal trail, and the judge agreed it was a valid limitation. The judge also applied the 6 years statute of limitations rule which reduced the number of tenancies under consideration to four. Furthermore, the judge decided that the second payment of £845 was in fact a rent in advance payment.

Further still, the judge reduced the fine multiple from three to two times the deposit, not giving any reason for this but these fines are at the court’s discretion, making a total fine and the compensation figure that Ms Howard was to receive at £7,200.

While this fine was much less that it could have been, it is still a substantial amount and a warning to landlords and agents to take great care over deposits. Courts will come down heavily on landlords who blatantly breach the deposit rules, but clearly they are reluctant to impose fines which are so high they would cause unnecessary suffering and distress.

Read more about deposits.

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Revised Right to rent requirments from 21st June

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The temporary adjustments to the right to rent check introduced on 30 March 2020, due to COVID-19, are ending. From 21 June 2021, you must check the prescribed documents as set out in the right to rent code of practice and the landlord’s guide

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Longer notice periods for tenants until at least October

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Renters will continue to be supported as national COVID-19 restrictions ease, with longer notice periods in place until at least October, Housing Minister Christopher Pincher announced.

As part of a phased approach, notice periods – previously extended to 6 months as an emergency measure during the pandemic –

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BREAKING: Government reveals ‘positive’ evictions ban wind-down plan

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The government has announced plans to wind down the evictions ban, offering light at the end of the tunnel for the thousands of landlords waiting to evict tenants.

In a significant concession for desperate landlords won by the NRLA, housing minister Christopher Pincher (above) has signed off changes to evictions legislation that will see bailiffs restart their work on 1st June.

Many experts had worried that the bailiff evictions ban might be extended once more in expectation of economic problems as the furlough scheme comes to an end later this year.

Notice periods

Bailiffs re-starting will coincide with a reduction in the eviction notice period landlords must give to tenants from the current six months to four months.

But most crucially, the relaxation of restrictions is to include Section 21 notices, a significant concession to landlords given the hard campaigning by many tenant groups such as Shelter to have them banned.

It had been expected that ministers would only allow the evictions process to re-start for mandatory grounds not the ‘no fault’ grounds that Section 21 notice enable.

Returning to normal

Pincher has also signed off on notice periods for Section 8 notice ‘grounds’ evictions returning to normal on October 1^st.

This will be between two weeks and two months, depending on the grounds being claimed.

Also, on 31^st May the ‘serious arrears’ grounds period will be reduced from six months to four months, enabling landlords to begin proceeding earlier, with a further reduction expected in August. Some exemptions will apply (see below).

Unprecedented action

Minister Pincher says: “From the beginning of the pandemic, we have taken unprecedented action to protect renters and help keep them in their homes.

“As COVID restrictions are eased in line with the Roadmap out of lockdown, we will ensure tenants continue to be supported with longer notice periods, while also balancing the need for landlords to access justice.

“Crucial financial support also remains in place including the furlough scheme and uplift to Universal Credit.”

Ben Beadle, Chief Executive of the NRLA says: “Having operated under emergency conditions for over a year, today’s announcement from the Government is an important step in ensuring the sector’s recovery.

“It does nothing though to address the rent debt crisis. With the number of private tenants in arrears having increased threefold since lockdown measures started, more are at risk of losing their homes as restrictions ease.

“We want to see tenancies sustained wherever possible and call on the Chancellor to step in and provide affected tenants with the financial support they need to pay off rent arrears built as a result of the pandemic.”

Tim Frome of Landlord Action (left) says: “It is good news for landlords that bailiffs will be restarting from 1^st June for landlords who have possession orders. It is likely the bailiffs will be very busy clearing the backlog so we wait to see how the courts cope,” says

“The government setting out a timetable for the resumption of previous possession notice periods by 1^st October will hopefully give some certainty and enable us to advise landlords on their options.”

More detail

From 1 June, notice periods that are currently six months will reduce to at least four months. Notice periods for the most serious cases that present the most strain on landlords will remain lower:

• anti-social behaviour (immediate to 4 weeks’ notice)
• domestic abuse in the social sector (2 to 4 weeks’ notice)
• false statement (2 to 4 weeks’ notice)
• over 4 months’ accumulated rent arrears (4 weeks’ notice)
• breach of immigration rules ‘Right to Rent’ (2 weeks’ notice)
• death of a tenant (2 months’ notice)

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Should I risk changing the hearing date?

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Hi, I have been given a court review hearing date to recover my property. The review hearing is 7th June, however, today I have received a letter from my tenant saying she is going to move out on the 13th of June.

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TECH launch: Platform promises to take hassle out of gas, electricity and EPC inspections

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New online platform Symple promises to take the hassle out of arranging property certifications and inspections.

The system guarantees that landlords’ inspections always get done on time by liaising directly with registered service providers who can manage these jobs on the platform.

Landlords upload their property details and the last date of inspection and it reminds them when a property certificate is up for renewal.

They can renew a property certificate online and Symple arranges for the inspection to be carried out by a local provider, so landlords don’t have to worry about finding and chasing tradespeople to do the job.

Accredited

All providers and energy assessors must be accredited and are vetted before they can accept work.

Symple’s system – at symple.co.uk – also handles the delivery of all certifications and ensures landlords receive them ahead of the due date. Landlord registration is free and covers single or multiple properties.

Founder Simon Dresdner (pictured) says he knew there had to be an easier way for landlords to book their gas safety, electrical installation and energy performance inspections and an easier way to never forget when they’re due.

“That’s when the idea for Symple was born,” he adds. “We want to help take a few of those worries away and make life easier for our users. All they need to do is confirm their order and we’ll do the rest.

“That includes ensuring the work is carried out on time, as arranged. We guarantee certificates will be in their inbox by the due date or they’ll receive it for free.”

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UPDATE: Do you or your tenants need a ‘breathing space’ to repay debts?

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The government has shown concern during the pandemic about people who have debts they cannot immediately repay.

As the country continues on the way to recovery from the pandemic crisis, and is moving back to something like normality, many people are experiencing long-term debt problems.

As a way forward the government has introduced legislation designed to alleviate the pressure on these people and help them recover their debt fee position.

The Debt Respite Scheme (Breathing Space Moratorium and Mental health Crisis Moratorium) (England and Wales) Regulations 2020 were passed last November to help those people through the crisis who are in serious debt. It becomes effective from 4^th May 2021.

This situation could easily apply to landlords as to tenants, but it is something landlords and agents should be aware of should their tenants fall into this category.

Sensitivity

There is some sensitivity around this matter as landlords and agents are not allowed to initiate conversations about an individual’s private affairs such their debt situation, but it is perfectly acceptable to respond if the tenant raises the matter.

It is also acceptable where, discussing other matters such as repairs, damages or rent arrears where this naturally leads to the tenants claiming that debt is the real issue. Advice can be offered and a knowledge of the various debt services can be useful.

This legislation covers all forms of debt, not just rent arrears but in order for a debtor to qualify for a debt “breathing space” they must go through the correct channels, that is a FCA approved debt advisor, private advisory service, or a local authority debt advisory service.

Eligibility tests

The decision to offer a breathing space rests with the debt advisor though there are some mandatory eligibility requirements set in the legislation which are not open to discussion or negotiation.

Condition one is that the debtor can maintain the current repayment amounts as they fall due, though they are not in a position to address the existing arrears amount. The idea is that after the breathing space the existing debts will not be any larger that at the commencement of the breathing space.

The breathing space period will be reviewed at regular intervals and can be revoked if the debtor fails to maintain the current payments. No interest or late payment charges can be applied to the debts during the breathing space.

Condition two is that during the breathing space the advisor works with the debtor to plan a longer-term way of getting out of debt. The breathing space is designed to take the stress off the debtor in the short term, giving them the space to think, to plan and to act to reduce their debt position. During this period landlords and agents are not allowed to contact the debtor about debt repayments.

Warned

Landlords and agents are being warned in this regard not to send out letters or even standard letters that inadvertently make demands which go against the principle of the breathing space, adding more unnecessary stress for the debtor.

The ‘standard’ breathing space lasts for some 60 days and during this time not only must the landlord or agent refrain from making demands, they are prevented from initiating eviction proceedings under Section 8 of the Housing Act 1988. Any proceedings under way at the time of the grant of a breathing space must be notified to the court. A section 21 application, unless it is motivated because of a debt, may succeed.

Only one breathing space is allowed within any 12-month period.

Landlords and agents are advised to consult with the debt advisor to make sure the whole of the debt is included in the arrangement.

In the case of a mental health debt breathing space, the request for this must originate from the mental health professional treating the individual. Unfortunately for the landlord intermediate payments during the mental health crisis would be suspended, but it is expected that mental health breathing space grants will be quite rare.

Read more about the breathing space scheme.

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BOOM! Rental market activity jumps as Covid rules relaxation prompts city revival

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UK rents outside London are up 3% since this time last year, signalling the highest level of growth in four and half years.

Rents are rising fastest in the North East (+5.5%) and the South West (+5.3%) – the strongest rates of growth in a decade amid increased demand and constrained supply – according to Zoopla’s quarterly Rental Market Report.

It reveals that rental performance outside London was driven by a 59% rise in demand during April compared to the same month in 2017-19.

It says Covid’s impact was felt most acutely in city centre rental markets where stock moved over from short-term lets and more rental stock came back to the market amid easing demand.

Rents are still down by 0.7% in Leeds, -1.1% in central Manchester, -3.2% in central Edinburgh and -9.9% in inner London.

Soaring demand

But the city centre downturn is starting to reverse as the economy opens up; renter demand was up 26% in central Edinburgh, 12% in central Leeds, 7% in inner London and 5% in central Manchester in the month after Easter.

Zoopla says demand in the capital is being fuelled partly by a sharp improvement to affordability, with rents down -9.4%.

Agents are reporting an increased number of longer-than-average tenancies – in excess of 12 months – being agreed.

Chestertons says demand is so strong that some properties are being let off-market, while those that have been listed, secured new tenants within two weeks and often after just one viewing. 

Rental property supply in most markets is failing to keep up with demand.

The number of properties bought using a buy-to-let mortgage was 45% lower in 2020 than in 2015, and the number of homes in the sector has fallen slightly since 2016 as landlords rationalise their portfolios in the face of tax changes and additional regulation.

Zoopla’s head of research, Gráinne Gilmore (left), says: “Demand will continue to rise in city centres as offices start to re-open and this, coupled with increased affordability levels in many cases, will start to counter the negative pressure on rents seen over the last 12 months.”

Read the report in full.

Read more: London’s rental market due a revivial.

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Landlord boiler service tackled by industry watchdog over misleading ad

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A boiler service and sales company that works with landlords has amended its advertising after a member of the public complained that the firm’s online price list was misleading.

The ad appeared on the website of Manchester-based firm 24/7 Home Assist Ltd, which trades as 24/7 Home Rescue. It included a price list which stated “£4.49/month Free Boiler Service” and “£9.45 Free Boiler Service”.

As part of the ad, landlords were told that the service included a “30 Day Rolling Contract* No more frustrating home care experience, like fixed contracts, unreliable engineers, and hidden plan charges”.

The member of the public, who understood that the plan automatically changed to an annual contract after an annual service, which included an £144 cancellation charge, challenged whether the claims “30 Day Rolling Contract*” and no more fixed contracts” were misleading.

Misleading claim

They also challenged whether the claims “Free Boiler Service” and that there were no more hidden plan charges were misleading.

The UK’s Advertising Standards Authority (ASA) code for advertisers says that: “Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.”

After being contacted by the ASA compliance team, 247 Home Assist agreed to amend the ad and assured the ASA that all future ads will include significant limitations and qualification.

On that basis, the case was resolved by the ASA without having to proceed to a full adjudication.

24/7 Home Rescue offers landlords and homeowners both a low-cost monthly boiler repair service and a ‘no up front cost’ boiler purchase and maintenance package.

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Covid, rent arrears and binning Section 21 – a lethal cocktail for the PRS

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The State Opening of Parliament took place today [11 May] and as expected, the Government has reconfirmed its commitment to reform in the private rental sector.

Although not mentioned specifically, Her Majesty the Queen promised to ‘enhance the rights of those who rent’. This undoubtedly means that the Renters’ Reform Bill, which will scrap the use of Section 21 evictions, will happen soon.

Even though this is inevitable and has been for some time, the scale at which the pandemic has accelerated rent arrears is really quite frightening and I am deeply concerned what this will do to the rental market if it goes ahead too early and without greater thought and detail into strengthening the Section 8 process.

We’re now more than a year on from the start of the pandemic and the strain on the private rented sector is starting to show. In a recent poll carried out by Client Money Protect (CMP), nearly a third of letting agents (32 per cent) said that more than 50 per cent of their portfolio of tenants have fallen into rent arrears:

• 21 per cent said between 30 and 50 per cent are affected
• 19 per cent of agents said it is 15-30 per cent of their portfolio
• 28 per cent have between 0-15 per cent of tenants affected by rent arrears.

Obviously, the pandemic and the current eviction ban is playing a huge part in these rising rent arrears, but it does not bode well for when things start to go back to normal, only for tenants to be faced with the end of furlough and landlords to be hampered by the removal of Section 21.

The vast majority of landlords and letting agents are working hard to keep the lines of communication with their tenants open and be accommodating wherever they can.

In some instances, mediation has helped to successfully reach a way forward, whether that involves the tenant looking for another property, being offered a rent reduction or implementing a repayment agreement. 

In my view, there needs to be a significant amount of time, post-pandemic, for the market to readjust. 

Back to normal

Landlords and tenants need time to get back to normal and see if they want to remain in their current tenancy contracts, courts need time to clear the backlog of repossession cases, which are currently stacked up, and significant consideration and alterations must be put into making Section 8 fit for purpose. 

Reporting on the extent to which tenants are in arrears, 21 per cent of letting agents reported to CMP that arrears have reached six months or more. A further 18 per cent reported tenants being between three and six months in arrears.

If this is a taste of what landlords can expect, then it is inevitable that more landlords will start to leave the market, particularly at a time when prices in the sales market are at record highs.

Many landlords will be looking at this right now and considering their options. We even know of landlords selling their properties with tenants in situ just because they want out.

Devastating

I know there are many tenants who have been badly affected by the pandemic, unable to work or had their wages/hours cut and for these people building rent arrears has been unavoidable, which is devastating for all involved. 

Unfortunately, there are also a lot of tenants who have played the system to their advantage and avoided paying rent simply because they know there is nothing their landlord can do about it.  No landlord wants to make someone homeless, but more has to be done to check the tenants’ viability to pay rent.

Without Section 21, landlords will be much more exposed to these kinds of serial rogue tenants who know how to use the system’s loopholes to remain in properties for free.  This will also have a dramatic knock-on effect to referencing, making it even more difficult for honest hard-working tenants to find properties.

Affordability problems

Affordable rental properties are difficult to come by and many agents are already inundated with enquiries every time a new property comes available. All that is going to happen, is the majority of tenants won’t even get a look in, as landlords and agents will be forced to cherry-pick only those in the very strongest and proven financial position.

In Bristol, for example, 30 percent of households are privately rented, and rents have gone up 52 per cent since 2011, but wages have only risen 24 per cent. This is only going to get worse if the pool of rented properties is reduced because landlords do not feel supported in the sector.

Tenant charities are calling for the Renters’ Reform Bill to be brought forward but I would urge government to consider such a move very carefully whilst there is so much uncertainty following the pandemic.

As I have said before, when it comes to tenants and landlords, one does not work without the other, so we need a PRS which is fair for all.  

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