Landlord wants tenants out but deposit is lost

Here is a question to the blog  clinic from Lesley who is a tenant

We have rented our current home for nearly 3 years. The landlord has decided to sell the property but issued us with a section 8, stating they wanted repossession of the property which is at the end of Feb. We are not in arrears and have been excellent tenants so I know the section 8 is wrong and should of been done through a court, I am sure it should of stated a section 21 !!

The other problem we have is that we have just found out that the agents didn’t deposit our rent into the DPS and has run off with a lot of money from other tenants and landlords and is currently wanted by the police !!

We sent a letter to the landlord asking where our deposit is and obviously we want it back to help with our next move. Its been 2 weeks and the landlord has yet to answer. I want to know were we stand, though I know responsibility lies with the landlord to repay us.

There are several things here.  Lets look at the repossession issue first.

If a section 8 notice is served it should state the ground the landlord will be using if he wants to evict you.  He can’t just get possession (using a section 8 notice) just because he wants possession.  He has to cite one of the ‘grounds’ set out in the Housing Act 1988.

The normal ground is serious rent arrears, but if your rent is up to date, he can’t use that.  I suspect that the notice he has served on you may be worthless but it is impossible to say without seeing it.

As you rightly say, the procedure he probably needs to use is the section 21 procedure (which requires a different notice).  However your landlord has a problem there, as he cannot use it if the deposit is unprotected.

So far as the deposit is concerned, you are not entitled to the return of this now, only once you have vacated (assuming there is no damage).

You say that the deposit has not been protected with the DPS – there are two other schemes the agent could have used though, so you need to check with them first.

However if the deposit is not protected with any of them, then you are entitled to bring proceedings for the penalty of 3x the deposit.  Then the landlord will either have to arrange to protect the deposit (even though he does not physically have it, he is responsible to you for it) or be ordered by the court to pay the 3x penalty.

However for the reasons in this blog post, you won’t get the penalty if the landlord arranges protection before the court hearing date (but at least the deposit will be protected).  This post has some guidance on how to bring a claim.  Or you could keep your deposit claim in reserve to use as a ‘counterclaim’ if he brings a claim for possession against you under his section 8 notice.

Or alternatively you could just leave things, if you are pretty certain that the section 8 notice is unusable (but get some legal advice on this though),  so that the landlord cannot use section 21. Unless he arranges for the deposit to be protected. In which case he will need to serve a notice on you telling you this.

In any event *do not move out*.  The landlord can only evict you if he has a court order for possession, and from what you say it sounds as if he is not entitled to this just now.  I am worried about the section 8 notice though so please take some advice on that.

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If YOU have a problem, why not put it to the blog clinic?  However there are a lot of questions submitted, so if you need an answer quickly remember that members of my Landlord Law service can ask me questions in the members forum area, and will normally get an answer with 24 hours.