Deposit Protection Boo Boo – Landlord SOS – HELP!

I can't explain it Ray not in few enough words but ALL legal opinion has ALWAYS been in TDP terms that a reneweal is a new tenancy and therefore ALL of the TDP protocols MUST be observed.

It isn't just "how I think it is" it is hopw all informed opinion thinks it is.

The funds are not moved physically, they stay where they are. If the tenancy is a renewal (or I would argue a periodic) then you have just ''received' the funds again and so must go through the TDP processes, both parts in my view on a periodic as well as no argument on a renewal, within 30 days of that date.

This is my last post I will debate it no more because there is no clear cut answer or at least not for those who don't agree with my and others views. The debate could continue ad infinitum.

As I say why take the risk - re-protect and re-issue PI and then wait to see where eventually it ends up

Best wishes

For the avoidance of doubt, i have gone on to the DPS website and under the help section "Ask Emma" asked the question "Does a deposit have to be re registered with DPS following a tenancy renewal i.e. creating a new fixed term?"

I am 100% satisfied that under DPS you DO NOT NEED TO RE REGISTER A DEPOSIT FOLLOWING RENEWAL OF A TENANCY.

The transcript of the question and answer is below, if you dont believe me try it yourself!!

Emma Hi, I'm Emma. I'm here to answer your questions.

Please enter your question below or just click 'send' if you would like to view a list of our frequently asked questions.

If there are any terms that you do not understand, please see our Glossary.

Guest Does a deposit have to be re registered with DPS following a tenancy renewal i.e. creating a new fixed term?

Guest You want to know what to do if a Deposit is protected and the Tenant extends their agreement

Emma If the Tenant extends their agreement the Deposit will continue to be protected until the JDR process is completed at the end of the tenancy.

In view of the above, you will not need to inform us of any extensions, as the Deposit will remain protected. If, however, you do wish to update the deposit details to show the new tenancy duration, please contact us using the Online Form

I repeat YOU DO NOT NEED TO RE REGISTER A DEPOSIT FOLLOWING RENEWAL OF A TENANCY.

Andy

Sorry but you are not correct, not strictly anyway.

On a renewal the deposit must be protected. What DPS is stating to you is what is needed internally and relates to their procedures, NOT the 2004 Act and what the Statute says you have to do.

Please DO NOT ADVISE ANYONE that a deposit on a renewal does not need protecting.

I have been there before with this and I can assure you that the DPS do not know and will not give an opinion on whether or not a deposit needs to have reprotection or PI re-served in a PERIODIC tenancy.

On a renewal I can guarantee you must re-protect pressing whatever keys the Scheme needs pressing. If the Scheme has systems where you don't need to do anything, as I think with DPS, then in theory you don't need to re-protect from the angle of actually physically having to do anything TO SATISDFY THE SCHEME RULES. With TDS for example you do, and I believe Mydeposits. You have to enter the renewal date and/or end date or whatever.

This below is from the number 2 man at DPS and was in response to a question from me on the subject:-

"If you are a Landlord in England and Wales and you enter into a Tenancy and take a Deposit from your Tenant on or after 6 April 2007, or you renew an existing Tenancy whether on the same or on different terms to the previous Tenancy, the Deposit must be protected in a Government authorised tenancy deposit scheme. This rule only applies if the tenancy is an assured shorthold tenancy."

See what I mean. You will get a response from a more junior member of staff that says you don't need to protect because the protection in terms of safety of money is continuous.

But in terms of PI you need to re-issue.

@Andy - you are confusing scheme rules with legislation. Industry observer is right. If you have been following the procedures you have documented here please seek professional advice immediately from a qualified landlord and tenant solicitor or barrister as you have a major problem.

Hi Mark, DPS PI Certificate is included in all our renewal tenancy agreements and we provide a further copy of the scheme rules on renewal. DPS say we dont have to re register the deposit and it appears from research that it is only deposits under insured schemes that need to re register the deposit as it is already held in a custodial scheme.

Andy

You are correct as far as you go but you do not mention re-issuing PI only protecting the money, so again to re-emphasise.

You don't need to re-register with DPS because their Scheme is designed so you don't have to, it is continuous protection in terms of the money held by them. With the other schemes in effect the insurance needs to be renewed/extended in simple terms by giving them a revised date.

But in terms of the PI you need to re-issue that along with another copy of their T&Cs as you are doing (which is good) because TDP is a two pronged effort and DPS is only discharging one part of it for you - the ongoing protection of the money itself by automatic systems.

The two latest CoA cases both emphasised that the issue of T&Cs (or leaflets for other two schemes) and the PI were just as important as the actual protection of the money if not more so.

Why

Because if you protect but don't tell the tenant where how do they know where to go to get it back?!!!

@Josie

It might be of use for you to know that there is a stated case in law where a deposit was registered late by a landlord and the tenant tried to sue.

The Court found in favour of the landlord and stated that registering the deposit was by definition proof that it was being protected by the landlord up to the point of submitting it to the DPS etc.

Interpretation of the of the case seems to indicate that the court will allow a delay in protecting the deposit if there are genuine circumstances for doing so.

@Richard Kent the law was updated in the Localisation Act in April 2012 giving landlords 30 days to protect a deposit after receipt. Prior to that the law was ambiguous as you have suggested but now it is very clear and there is no escape if the deposit is not protected within 30 days of receipt. The penalty of up to three times deposit plus refund of the deposit was also set with the implementation of the new rules

@Mark Alexander

Right. Ok.