Here is a question to the blog clinic from Vera (not her real name):
My tenants moved from one flat to another the deposit is protected with the DPS but under the previous address. The tenants agreed to this and a letter stating this was attached to the tenancy agreement.
I have issued a section 21 due to non payment of rent but they did not go so we have now been to court yesterday and the tenants have stated that the deposit was not protected. The Judge has made the decision for a re-trial in one month and has asked for witness statements.
She also requested that the deposit was changed to the new flat (done). How will we stand when it goes back to court. Do I need to serve a further section 21 due to the change of deposit address?
One of the problems about the various regulations that beset renting property, is that they are not optional, and the parties cannot agree between themselves to avoid them. Or if they do, this will not be enforceable.
I had a word with my contact at the DPS about your situation and he said:
As far the DPS is concerned this would constitute a new tenancy and the landlord should have requested repayment of the old tenancy and re-submitted the deposit under the new address.
So the fact that the tenants at the time agreed that this need not be done, will not really help you.
Although the tenants’ deposit has not been at risk as it has been held with the DPS all the time, my view is that these proceedings should be withdrawn.
Note that you need to be VERY CAREFUL when withdrawing court proceedings, as the normal rule is that this will automatically make you liable to pay the other parties legal costs.
In this situation solicitors will generally try to avoid this happening by trying to get the other side to agree to a consent order withdrawing the proceedings.
You may want to get a decent firm of specialist housing solicitors to help you with this.
So far as new proceedings are concerned, the new tenancy deposit rules provide that section 21 notices will not be effective if served if the deposit has not been protected within 30 days.
If the deposit is deemed repaid to you at the time you re-let the property then you are probably out of time to re-protect it (as I assume this was done more than 30 days after they changed their property). In which case you may need to refund the deposit before you can use section 21 to evict your tenants.