What rights does a landlord have if the tenant has stopped paying rent but the landlord has not protected their deposit?

[QuestionQuestionQuestio]

Asking on behalf of a friend. What rights does a landlord have if their tenant has stopped paying their rent but the landlord did not protect the deposit?

Legally you have to protect the deposit.
So not sure what happens if you don't?
If there is a tenancy agreement, they can serve a section 21 and evict them.

I'd tell your friend to pay the rent and get advice from shelter

I think your "friend" needs to be careful - if they haven't protected the deposit (which is extremely dodgy) the tenant can get compensation.

Your friend can take the landlord to court, regardless of whether they've paid their rent or not, and claim up to three times of the deposit back.

Info here:

www.gov.uk/tenancy-deposit-protection/if-your-landlord-doesnt-protect-your-deposit

www.citizensadvice.org.uk/housing/renting-privately/ending-your-tenancy/taking-your-landlord-to-court-if-they-havent-followed-the-deposit-rules/

The landlord can be fined, and will be unable to serve eviction papers.

www.citizensadvice.org.uk/housing/renting-privately/ending-your-tenancy/taking-your-landlord-to-court-if-they-havent-followed-the-deposit-rules/

england.shelter.org.uk/housing_advice/tenancy_deposits/what_to_do_about_an_unprotected_tenancy_deposit

If your LL is the friend and presuming the tenant is an assured shorthold tenant then they can serve a s8notice regardless of whether they have protected the deposit. They can google s8 to find out more about this,

If your friend is the tenant- then same applies, s8 can be served- LL does not need to have protected deposit for this to be valid, only need to prove the grounds they are relying on, possible counterclaim regarding deposit compensation
Look at Shelter website for accurate legal advice not mumsnet

Is your friend the landlord? If so then they need to get it sorted ASAP and will probably need to get legal advice as the time limit for protecting it is 30 days from the start of the tenancy.

They cannot issue a valid Section 21 eviction if the deposit is not protected.

If they issue a Section 8 for rent arrears then the tenant can counter sue (and will very, very likely win).

Friend is the landlord. The tenant signed a year long tenancy agreement when they first moved in but nothing since and they've been there 4 years. The tenant has recently lost their job.

Landlord has no rights in this situation.

How do they get the tenant out?

Huge , expensive mistake for the landlord not protecting the deposit, will take months and at a huge cost to evetunally evict, not to mention big fine for not protecting deposit

I thought that all deposits had to be protected since way back.
Was there a reason LL didn't do this?

Stupidity!

Your friend has broken the law and it is going to be a huge ball ache now to get the tenant out. Personally I think this is a good thing as your friend is going to learn a costly lesson so that they don't make this mistake again - no one should be a landlord unless they understand their responsibilities.

Firstly, your friend cannot issue a Section 21 eviction as it won't be valid.

They can issue a Section 8 eviction on the grounds of rent arrears but it'll only be valid if the tenant has reached the trigger points for arrears (two months arrears for monthly paid, eight weeks for weekly paid, three months if they pay quarterly). If the tenant pays anything that reduces their rent arrears below the trigger point, even by just £1, then the Section 8 is no longer valid.

Basically as soon as your friend goes in front of a judge to try remove the tenant they are going to be fucked because a judge has the power to award between 100% and 300% of the deposit in compensation to the tenant on top of the deposit itself, so 4x whatever the amount it is. There are no win-no fee solicitors who will help the tenant with this and any costs will be recovered from your friend if/when they lose - the majority of tenants win these claims.

Your friend needs to speak to a solicitor about how to proceed with minimal financial loss. It might also be best to try and negotiate with the tenant if they are usually a good tenant who pays on time and this non-payment is just down to losing their job, see if a payment plan can be worked out to recover the loss or if they've applied for benefits to help with rent, etc.

And for the love of God, put the deposit in a scheme now. If/when it goes before a judge they will look more favourably on a (very) late protection than no protection at all.

The landlord needs to return the full deposit asap. They can then file for a S21. That's assuming they've done everything else that they are legally required to do, which is questionable if they couldn't even protect the deposit.

The tenant will have the option to take the landlord to court for 3 times the value of the deposit. As they did return it, chances are that the penalty will just 1x the deposit.

The landlord can take the tenant to court to try to get the due rental back. If they don't have a job though, that's not so helpful but to get them a ccj.

Or they can reach some sort of agreement to avoid both sides going to court.

Serves the LL right imo, deposit should have been protected and they should know the rules.

They have to hope that the tenant might not realise about their deposit, very unethical. Sounds like the tenant is more 'can't pay' than 'won't pay' if they have lost their job. What is the relationship between them, could they agree some kind of payment plan while the tenant searches for a new job and/or makes a benefits application?

the tenant has the same rights as if they had signed a new contract - it becomes a rolling contract. Not protecting the deposit means it will be virtually impossible to evict them legally. Either negotiate a lower rent while looking for a job/ waiting for UB. If the rent was reasonable the local offer [UB] will cover it.

Not protecting the deposit means it will be virtually impossible to evict them legally
That's not true at all. The deposit just need to be restituted to proceed with eviction. That gesture will most likely highlight the option to sue the landlord, but they can't evict without giving it back.

The tenant has a statutory periodic tenancy if their AST has expired. Unless the contract says otherwise, the landlord would normally be able to give the tenant 2 month's notice without any reason. Obviously that doesn't mean that the tenant will leave...

The landlord can still serve a section 8 notice to evict the tenant for non-payment of rent even though the deposit hasn't been protected.

The landlord can still take any unpaid rent from the deposit.

However, the tenant can then counter sue the landlord for not protecting the deposit. The minimum amount the tenant will be awarded in compensation is 1 x the deposit, up to 3 x the deposit.

The 3 issues (eviction/deducting rent from the deposit/compensation for the deposit not being protected) will all have to be dealt with separately.

Has the tenant not applied for UC? That should cover some of the rent. It can take time to be processed though.

I would probably protect the deposit ASAP and talk to the tenant about whether they have put in a claim for UC.

The tenant has been there for 4 years. If they’ve been a decent paying tenant all this time and no other problems, then the LL should work with them to try to keep them housed, IMO, not jump straight to kicking them out. (I speak from a LL’s point of view).

How long ago did they lose their job? How much rent is owing, and what is the tenant’s plan at this point - housing benefit/UC, new job etc?

Immediately return the deposit and serve section 21. Hope that the tenant doesn’t sue.

Have they been a good tenant during the course of the 4 years before they lost their job and can no longer afford the rent? Are there any options other than kicking the tenant out when they've fallen on hard times, that your friend can choose? Especially considering they have not met their obligated legal responsibilities as a landlord by not protecting the deposit.

Your friend is an idiot, there is no excuse for not adhering to the legal obligations, not like they are new rules put in place.

If they didn't have it together enough to know to protect the deposit, did they comply with their other obligations such as annual gas safety checks? An unprotected deposit is only one way of making a section 21 invalid.

If they didn't have it together enough to know to protect the deposit, did they comply with their other obligations such as annual gas safety checks? An unprotected deposit is only one way of making a section 21 invalid.

If it was truly just stupidity stopping the LL from protecting the deposit, he needs to look at seeking legal advice and rectifying now, it will save ££ in the long run.
I would also be advising he isn’t fit to be a LL if he is going to be cutting corners like this