Help with eviction please - specialsubject maybe?

[homewoes]

I've asked for help here before and have had great advice, and I remember specialsubject always knowing her stuff. any advice appreciated

We were served a Section 21 asking us to leave our flat. We took advice from Shelter (and on here) about it and also the fact our deposit hasn't been protected.

Shelter told us if we overstayed the date given in the Section 21 and our landlord went to court to evict us, it would be thrown out because he hasn't protected our deposit. They also confirmed we can take him to court and he could be told to pay a penalty of 3 x our deposit.

We have found somewhere new to live but it is not available until after the date on the Section 21, meaning we would overstay by a few weeks. (yes technically we could put our stuff in storage and stay in a hotel but that would be £4,000 which we don't have)

I wrote to our landlord a polite note (not mentioning deposit etc) saying I hope we could agree to a new date, with us of course paying rent and I mentioned a few other bits and bobs. He shot an email straight back saying no, he's got the decorators in the day after (amazing, considering he's been totally uncommunicative our whole tenancy, refusing any repairs, decoration issues etc)

Anyway, so what do I do now? I have drafted a letter based on a Shelter template - a letter before action about the deposit protection saying we will go to court about it. I also want to add a note in saying something like 'The Section 21: Notice Requiring Possession eviction notice you served on XdateX is therefore invalid, therefore we do not have to vacate the property by XdateX.'

Is this a good/bad idea? WWYD? Would you keep the two issues separate? Or should I do it all in one big hit?

The landlord appears not to know anything about his rights, our rights etc and what happens if we overstay and he comes into the flat and empties it? I don't know if he has keys.

Thank you and sorry for it being so long.

(blush). I am just a landlord (who makes bloody sure to do the right thing), not a legal expert, and have never had to evict anyone, but as you called...

this is also long!

• you are quite right about everything. Even if the section 21 was valid, it is not actually a notice to quit but a notice that legal action will commence on its expiry.

-even if it was valid, if you don't go he can't come straight in, remove your stuff, send the boys round etc. He would have to do it legally with the bailiffs.

But it isn't valid because the deposit wasn't protected.

so write that letter and send two copies from separate post offices with proof of posting. Do not use recorded delivery because he can then refuse to sign. (This advice is from landlordzone, normally used for serving notice on tenants).

the deal is: you stay until the convenient date, continuing to pay pro-rata rent and treating the property in a tenant like manner. He lets you do this and returns your deposit in full. You don't take him to court.

if he refuses: you still stay (as you are legally entitled to do), paying rent etc. But then you do take him to court for deposit non-protection.

also consider changing the locks, doing no damage and keeping the old locks. When you do leave, put the old locks back and make good. Keep copies of all paperwork, and do communicate in writing.

I think you hold all the cards and Shelter seem to agree. The legislation is there to protect tenants. Oh, and he can't protect your deposit now, far too late.

If he were a decent landlord doing the right things, I would be encouraging you to leave on time - I'm sure you could get accom and storage for a few weeks for a lot less than £4k. In that case the eviction would be valid and you would get a judgement against you. But it isn't and you won't.

But this whole thing is so unneccesary. He could have met legal obligations, negotiations as to departure could have been agreed and it could all be so easy. But a landlord who breaks the law and doesn't fix things gives the rest of us a bad name.

The only thing to add to Special's post is that if the landlord refunds your deposit, he can then serve the notice. You'd still have the right of action for his failure to put it in a scheme, but that is a separate issue to whether you're obliged to vacate in accordance with the Section 21 Notice.

So although the notice he has served is not valid, he can serve a replacement (although he'd had to give you at least 2 month's notice again) if he gives you the deposit back. If the aim is to stay in the property for as long as possible, maybe delay telling him that the notice is not valid until the timescales work for you.

ah yes, good point. Seen this on landlordzone when a landlord wants a tenant out and hasn't protected the deposit. The advice (with a well-deserved flaming) is indeed to return the deposit and serve notice again.

the two months expires on the date the rent is normally paid.

Having had to evict a tenant (deposit wasn't an issue, he actually wanted to be evicted to get a council house ) I can assure you that there is very little a LL can do if a tenant overstays their S21. LL will just have to bide time.

Great advice again from the above... to reiterate you hold all the cards.

You can not be evicted as it stands, if he does return the deposit, he will have to reissue S21, you will then have 2 months plus at least another 2 months whilst he completes paperwork for the court and you get a hearing date.

Thank you everyone - this is very useful! What would I do without mumsnet?

We don't want to stay indefinitely. We have tried hard to find somewhere to go asap but had two unsuccessful offers before finally finding somewhere. It's less than a month 'extra' we need to stay. Deposit paid and lease signed on the other place.

So do you think I should send my letter as proposed in my op? Mainly about the deposit but mentioning the section 21 as invalid?

Or should I reply to my landlords note simply saying 'no' to the request to stay with 'we have checked and as it appears our deposit is unprotected the section 21 is invalid therefore we do not need to leave by XdateX'

And then start court stuff without going into it in detail in the letter....?

in your position (but I'm not you!) I would make it clear that I knew that the section 21 is invalid and that I could take the landlord to court. And then offer the obvious solution I outlined, which means there's no court action. On the basis that this makes it easier for everyone.

there is simply nothing he can do to get you out at the moment if you are paying the rent. Until he returns the deposit and issues a valid section 21, you don't have to go anywhere. He has no options.

Just let him know the S21 is invalid and you will be leaving on such and such a date so he can rebook his decorators for that day. You can ask him what he proposes to do about the return of your deposit as it would be good to have an idea and, if he replies by email, may be useful ammunition if you do indeed decide to sue him.