Here is a question to the blog clinic from Heidi who is a tenant
We are currently tenants in a spacious one bedroom flat. I am currently expecting my first child, two weeks after the fixed term of our contract runs out.
We want to stay put until the baby is around 6 months old, as she’ll be in our bedroom to start with anyway and I got made redundant in May, so we are relying on my partners salary.
Reading my tenancy agreement I can’t see any problem with it. We can’t sublet, but obviously our child is not a lodger! We can’t keep pets, but a baby isn’t a pet. We wouldn’t be overcrowded as children under 1 don’t count as requiring space.
Do we have to let our landlord know and can they evict us for having a baby?
I realise that section 21 exists, so they could get rid of us with no reason. However, we were never given the prescribed information for deposit protection, which I believe would buy us some time.
There are no other issues with the tenancy, rent is always paid on time and we keep things in good order. I may just be being paranoid, but after a couple of renting nightmares I’m just worried about having to move at 38 weeks pregnant or with a newborn.
Answer
I am not aware of any reason why you should have to tell your landlord about this. As you say, for the first few months of its life a baby will not require a lot of extra space.
Your landlord will however no doubt find out about this (presumably he will carry out inspections from time to time) so I would not deliberately conceal it.
Eviction options
So far as evicting you is concerned, this is not a legal ground which your landlord can use to base an eviction.
Realistically there are two main grounds landlords use – the rent arrears ground and section 21. Your landlord cannot use the rent arrears ground if your rent is paid promptly, but can he use section 21?
If he failed to serve the prescribed information then no valid section 21 notice can be served at the moment. However unlike the situation where the deposit is unprotected, you can correct a failure to serve the prescribed information by serving it out of time.
Until he does this however you are safe from section 21 claims.
Doing a deal
Note that as the landlord is also in breach of the deposit rules, you are entitled to go to court and claim a penalty of between 1 and 3 times the deposit sum.
If it looks as if your landlord is going to be difficult, you could always say that you will agree not to bring any such claim if he agrees to grant you a further six months fixed term.
A last resort
Note by the way that even if the worst happens and your landlord does evict you, as you have a child (or are evicting a child if this happens before the baby is born) you will have a legal right to be rehoused by the Local Authority.
This is because (unless you move out voluntarily) you will be deemed to be in ‘priority need’.
Thank you so much, this is exactly what I needed to hear! As time has moved on since I emailed, assuming they don’t correct their deposit mistake so the first section 21 is invalid, the earliest we would need to be out would be after the baby is a couple of months old, which is much more manageable!
It also means I can now ask the landlord about an up to date gas safety certificate without worrying, which is another weight off my mind.
Of course it may raise absolutely no problems with him whatsoever and hopefully it’s just me being a right worryguts. But after two bad renting experiences it’s very much a case of once bitten, twice shy.
Heidi,
Presumably you did your own research there to clarify that your deposit is for-sure protected, and the scheme that it’s registered with? Only, I know of many folk who just take their letting agent’s / landlord’s word for this and leave it at that.
Tessa said…
“However unlike the situation where the deposit is unprotected, you can correct a failure to serve the prescribed information by serving it out of time.
Until he does this however you are safe from section 21 claims.”
I have heard of landlords – intent on serving an S21 – serve the prescribed information at the same time.
Firstly, you must check when your deposit was registered with whatever scheme AND then check the date on any S21 you have. Your deposit must be protected before the S21 is served to be valid.
I was not aware that it required that the tenant must also have received the prescribed info as Tessa says….if this can be confirmed please?
It is also important the date of the S21 as this must give you at least 2 Months notice before it can be acted upon. If it is invalid, then you can delay telling him this to buy some extra time.
I would also make absolutely sure you have something in writing to allow you to stay, before you hassle about the gas cert.
Tessa is right on all hr advice here Heidi.
I’d just add the baby is none of the landlord’s business and I wouldn’t make any special provisions on that score with him at all.
Next move out to suit yourself, if you do move out, and when you are elsewhere and within 6 years of date you paid the deposit, hit him with a s213 claim.
PI HAS to be served within the 30 days. Serving it at same time as s21 makes the s21 invalid – the PI must be served first, not same day.
Brief clarification to Tessa’s info on the role of the Local Council in respect of rehousing.
Under the 2010 Localism Act the Council can now discharge duty towards a homeless family by making an offer of a 12 month Assured Shorthold Tenancy rather than a secure council tenancy. However in some circumstances the council may be able to offer a deposit or deposit gurantee, although this is often reserved for “vulnerable people”.
“Unreasonable” refusal would mean the council does not to provide further assistance.
I remember now – landlord I was reading about served the PI day before she served the S21. But outwith the 30days.
Thank you all, very helpful!
The deposit is definitely protected as I’ve checked all the websites. It’s just the prescribed information that we haven’t received.
To be honest, as long as I’m treated fairly I’ve no intention of claiming against the landlord for not serving the information. The money is protected which is the most important thing. In some ways it feels like I’ve actually got the best of both worlds, in that the money is safe, yet he hasn’t complied enough to serve a section 21 at this stage.
I was reminded of this again, from the blog in April 2013. (I hasten to add, this was the post I was racking my brains to cite properly..).
http://www.landlordlawblog.co.uk/2013/04/09/my-landlord-has-returned-my-unprotected-deposit-can-i-still-claim/
The full deposit (no PI as I alluded to) was just returned to the tenant – to facilitate an S21, now deemed valid. And in spite of the penalty claim that wd still stand.
If Heidi’s landlord did the same then, the S21 wd be valid?
That is an interesting case and I often refer to it.
However Heidi’s case is different. In that case the landlord had not protected the deposit at all – which is why the deposit money had to be returned.
Here the deposit HAS been protected, its just the PI which has not been served. And the rules say that in those circumstances all the landlord has to do is serve the PI.
This will not protect him from a claim for the penalty but he will be able (then) to serve the s21 notice.
But if the landlord has the deposit in one of the insurance only schemes (as opposed to a custodial one) it wd be just sitting in his own bank account; very easy access, easy to lay his hands on?
Which is the tragedy of the insured schemes and why only Custodial should ever have been authorised by CLG – instead of caving into pressure from vested interest groups, Landlords (Mydeposits) and agents (TDS)
Agreed IO. Thankfully custodial is all we have in Scotland. I’d be grateful for your reflections on this Tessa? I’m of the opinion that in such a scenario, the landlord cd easily just hand the deposit back to Heidi if he really wanted her out.
The landlord does not have to refund the deposit as a condition of using section 21 – that is only necessary if he failed to protect at all.
If it is just the prescribed information which has not been served, then all he has to do is serve it.
So if I were advising the landlord I would advise him to hang on to it but serve the prescribed information.