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Section 13 Received 3 Months Late!


madmax2
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I've just received my first section 13(2) notice to increase rent. rent is paid on the 5th of every month by direct debit.

cover letter says " blah blah from 5 march rent shall now be...xyx"

envelope is postmarked 4th january! i received it today in the letterbox!!! (it appears to have been delivered to one of the neighbours, not registered or signed for, but the time of delivery to our letterbox doesnt correspond to when the postman comes)

as i havent received it until today, and the 5th march has come and gone i havent been able to contest the increase, additionally, i reckon i am 2 months behind in paying my increased rent difference.

i intend to write to the landlord

1) explaining what has happened

2) perhaps contesting the increase (seperate issue)

but i cant find any legal guidance on this....as far as i can tell by law i just have to accept the increase, as i didnt respond within time. has anybody had experience with this? or can assist with advice?

additionally, as we have been here for 8 years on an Assured periodic tenancy, would this increase (if accepted) be sufficient that the landlord would have to move our deposit to a protection scheme, or would it not apply unless we physically sign a new agreement?

Edited by madmax2
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I've just received my first section 13(2) notice to increase rent. rent is paid on the 5th of every month by direct debit.

cover letter says " blah blah from 5 march rent shall now be...xyx"

envelope is postmarked 4th january! i received it today in the letterbox!!! (it appears to have been delivered to one of the neighbours, not registered or signed for, but the time of delivery to our letterbox doesnt correspond to when the postman comes)

as i havent received it until today, and the 5th march has come and gone i havent been able to contest the increase, additionally, i reckon i am 2 months behind in paying my increased rent difference.

i intend to write to the landlord

1) explaining what has happened

2) perhaps contesting the increase (seperate issue)

but i cant find any legal guidance on this....as far as i can tell by law i just have to accept the increase, as i didnt respond within time. has anybody had experience with this? or can assist with advice?

additionally, as we have been here for 8 years on an Assured periodic tenancy, would this increase (if accepted) be sufficient that the landlord would have to move our deposit to a protection scheme, or would it not apply unless we physically sign a new agreement?

(1) Check your tenancy to see what it says on the issue of service of notices.

(2) If your tenancy remains periodic, then the LL is under no obligation to protect your deposit. However, if you sign a new agreement, the position is less clear because whilst the relevant provisions of the HA 2004 do not appear to require a LL to protect a deposit in such circumstances, the Govt guidance says the opposite. Personally, I think the Govt guidance is wrong.....

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The Government guidance is right. The provisions of the HA 2004 require that deposits that are paid in connection with shorthold tenancies are protected - which would mean that any deposits paid or already held at the start of a new AST come under the new requirements (if created on or after after 7 April 2007). If one fixed term AST come to an end and a new AST is created, the deposit, even if already held, must be protected. It would be a bureaucratic nonsense to ask landlords to return a deposit and demand it's payment again on the same day that an AST comes to an end and a new one is created.

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The Government guidance is right. The provisions of the HA 2004 require that deposits that are paid in connection with shorthold tenancies are protected - which would mean that any deposits paid or already held at the start of a new AST come under the new requirements (if created on or after after 7 April 2007). If one fixed term AST come to an end and a new AST is created, the deposit, even if already held, must be protected. It would be a bureaucratic nonsense to ask landlords to return a deposit and demand it's payment again on the same day that an AST comes to an end and a new one is created.

Your faith in our Lords and Masters is quite touching, but I'm afraid you will have to come up with better reasons than you have provided so far. For the sake of good form, I should point out that there are several non seqiturs and other errors of both fact and law in your (very short) post, the most glaring of which is that you have, in effect, added the words "already held" to the HA 2004. Unless an amending regulation has been passed of which I am unaware which inserts those words into the Act, then I'm afraid you've rather run away with yourself.

It may well be, as you put it, a "bureaucratic nonsense" to require a LL to return and then re-receive a deposit upon renewing a tenancy, but there is no need for him to do so unless he wishes to voluntarily put his head in the TDP noose.

I will cut and paste below my reasoning (set out in another post) on why such deposits are not within the provisions of HA 2004. If you can provide cogent legal arguments as to why my position is incorrect, please feel free to post them......

From this thread: http://www.housepricecrash.co.uk/forum/ind...15&start=15

I'm glad that I'm not alone in taking this view - ie: that tenancies started before 6th April 2007 but renewed after that date do not attract TDP.

Without boring you all with the technicalities, my argument goes a little something like this.....

1) The deposit (paid before 6th April 2007) is held on trust by either by the landlord or the agent.

2) On the renewal of a tenancy post 6th April 2007, the deposit remains held by either the landlord or the agent in a bank account and is not, in any meaningful way, "paid" to them by the tenant.

3) The effect of signing a new tenancy when the deposit remains in the LL or LA's bank account is NOT that the money is paid to the LA/LL, but that instead, there is a declaration of new trusts over the deposit money on the terms of the tenancy agreement.

4) The TDP provisions of HA 2004 only apply to deposits "paid" after 6th April 2007 and so do not apply the above type of transaction, which is, as argued above, a declaration of new trusts over the deposit.

I had a good deal of correspondence with the ODPM (or whatever they were calling themselves that week), the TDP providers and the various letting industry professional bodies this time last year. Not a single one of those bodies could come up with any better argument than "well, the Govt guidance must be right". At that time, as far as I could tell, at least one of the TDP providers didn't even have any legally trained staff and it appeared that they did not have access to lawyers. However, I am aware that they now have a contract with a firm of solicitors to provide them with legal advice, so I wonder if they have re-considered this matter.

BTW 1: I also caught them out on the issue of demanding the LL's address for TDP purposes, but at least they dropped that ultra vires demand fairly quickly.

BTW 2: small point of clarification - when the LL has not protected the deposit or provided the prescribed info, the court does not necessarily have to order the LL to repay the deposit to the tenant, it can instead make an order that he deposit should be paid into the Custodial Scheme.

Edited by agent46
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Your faith in our Lords and Masters is quite touching, but I'm afraid you will have to come up with better reasons than you have provided so far. For the sake of good form, I should point out that there are several non seqiturs and other errors of both fact and law in your (very short) post, the most glaring of which is that you have, in effect, added the words "already held" to the HA 2004. Unless an amending regulation has been passed of which I am unaware which inserts those words into the Act, then I'm afraid you've rather run away with yourself.

It may well be, as you put it, a "bureaucratic nonsense" to require a LL to return and then re-receive a deposit upon renewing a tenancy, but there is no need for him to do so unless he wishes to voluntarily put his head in the TDP noose.

I will cut and paste below my reasoning (set out in another post) on why such deposits are not within the provisions of HA 2004. If you can provide cogent legal arguments as to why my position is incorrect, please feel free to post them......

From this thread: http://www.housepricecrash.co.uk/forum/ind...15&start=15

I'm glad that I'm not alone in taking this view - ie: that tenancies started before 6th April 2007 but renewed after that date do not attract TDP.

Without boring you all with the technicalities, my argument goes a little something like this.....

1) The deposit (paid before 6th April 2007) is held on trust by either by the landlord or the agent.

2) On the renewal of a tenancy post 6th April 2007, the deposit remains held by either the landlord or the agent in a bank account and is not, in any meaningful way, "paid" to them by the tenant.

3) The effect of signing a new tenancy when the deposit remains in the LL or LA's bank account is NOT that the money is paid to the LA/LL, but that instead, there is a declaration of new trusts over the deposit money on the terms of the tenancy agreement.

4) The TDP provisions of HA 2004 only apply to deposits "paid" after 6th April 2007 and so do not apply the above type of transaction, which is, as argued above, a declaration of new trusts over the deposit.

I had a good deal of correspondence with the ODPM (or whatever they were calling themselves that week), the TDP providers and the various letting industry professional bodies this time last year. Not a single one of those bodies could come up with any better argument than "well, the Govt guidance must be right". At that time, as far as I could tell, at least one of the TDP providers didn't even have any legally trained staff and it appeared that they did not have access to lawyers. However, I am aware that they now have a contract with a firm of solicitors to provide them with legal advice, so I wonder if they have re-considered this matter.

BTW 1: I also caught them out on the issue of demanding the LL's address for TDP purposes, but at least they dropped that ultra vires demand fairly quickly.

BTW 2: small point of clarification - when the LL has not protected the deposit or provided the prescribed info, the court does not necessarily have to order the LL to repay the deposit to the tenant, it can instead make an order that he deposit should be paid into the Custodial Scheme.

Er...I heard it from the horses mouth, i.e. I've seen first hand the emails between drafting lawyers, policy officials and ministers and even had an informal conversation with the policy lead minister (Baroness Andrews). Seems a pretty good reason to believe it?

And you have misunderstood my post. I did not add the words 'already held' into the HA 2004 - I'm pointing out that what the HA 2004 does say is that deposits that are paid "IN CONNECTION" with shorthold tenancies are protected. Therefore, if a contract is renewed and the deposit has not been returned but is being retained "IN CONNECTION" with the new tenancy agreement, then it can be deemed as having been paid from the start of that new agreement. Otherwise, on what grounds is the landlord holding the money, when that tenancy agreement has expired?

Meg Munn was the minister who attended the Delegated Legislation Committee debate to approve the draft Housing (Tenancy Deposit Schemes) Order 2007) in the Commons, to enable it to come into force. Here is her reply to a similar question fielded by James Duddridge MP earlier in the debate:

"Roll-over of tenancies and when the proposals will come into force were also mentioned. Only deposits relating to assured shorthold tenancies entered on or after the 6 April 2007 need to be protected; continuing tenancies will not be covered unless there is a new agreement. If a new assured shorthold tenancy is created, however, the deposit protection scheme will apply"

http://www.publications.parliament.uk/pa/c...07/70307s01.htm

What I'm trying to point out is that the government's guidance is the 'plain english' version of the policy that ministers wanted made law and that it's CLG lawyers and Parliamentary Counsel's job to transpose that policy into law in a way that allows that to happen, either by using existing legislation or by introducing amended legislation. I don't have any legal training myself (nor do policy officials or most ministers), but government lawyers (Parliamentary Counsel) receive 7 years training before drafting legislation - perhaps you can enlighten us as to how much training you've had?

I find it odd that you say that the TDP providers "didn't even have any legally trained staff and it appeared that they did not have access to lawyers. However, I am aware that they now have a contract with a firm of solicitors to provide them with legal advice, so I wonder if they have re-considered this matter." Fact is, they would have been in discussion with CLG housing lawyers at the time of drafting the Bill and subsequent amending SIs - far more qualified and in a far better position to give advice than some firm of solicitors??

Finally, re:

BTW1 - Eh???? The landlord's address is required as part of the prescribed information: Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (made 13 March 2007 and came into force 6 April 2007).

BTW2 - Er, yes, I know that, but how is it relevant to this post? I'm pointing out that renewed tenancies (where a new contract is signed for a new AST), do fall under these regulations, if the deposit is retained from the previous AST.

All I can say is that I'm glad that I'm renting via an agency where common sense has prevailed and that on the recent renewal of my fixed term contract, they saw fit to follow the government guidance and place my deposit into one of the schemes. Perhaps you can let us know the name of your agency, so that I can make a mental note never to use it?

Incidentally, it's about the only piece of legislation that the Government has introduced that I have had faith in - I'm assuming that judges will interpret it in the way that it was first intended (in it's plain english version), but good luck if you do try on any legal challenges - could be expensive for you though?

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Er...I heard it from the horses mouth, i.e. I've seen first hand the emails between drafting lawyers, policy officials and ministers and even had an informal conversation with the policy lead minister (Baroness Andrews). Seems a pretty good reason to believe it?

And you have misunderstood my post. I did not add the words 'already held' into the HA 2004 - I'm pointing out that what the HA 2004 does say is that deposits that are paid "IN CONNECTION" with shorthold tenancies are protected. Therefore, if a contract is renewed and the deposit has not been returned but is being retained "IN CONNECTION" with the new tenancy agreement, then it can be deemed as having been paid from the start of that new agreement. Otherwise, on what grounds is the landlord holding the money, when that tenancy agreement has expired?

Meg Munn was the minister who attended the Delegated Legislation Committee debate to approve the draft Housing (Tenancy Deposit Schemes) Order 2007) in the Commons, to enable it to come into force. Here is her reply to a similar question fielded by James Duddridge MP earlier in the debate:

"Roll-over of tenancies and when the proposals will come into force were also mentioned. Only deposits relating to assured shorthold tenancies entered on or after the 6 April 2007 need to be protected; continuing tenancies will not be covered unless there is a new agreement. If a new assured shorthold tenancy is created, however, the deposit protection scheme will apply"

http://www.publications.parliament.uk/pa/c...07/70307s01.htm

What I'm trying to point out is that the government's guidance is the 'plain english' version of the policy that ministers wanted made law and that it's CLG lawyers and Parliamentary Counsel's job to transpose that policy into law in a way that allows that to happen, either by using existing legislation or by introducing amended legislation. I don't have any legal training myself (nor do policy officials or most ministers), but government lawyers (Parliamentary Counsel) receive 7 years training before drafting legislation - perhaps you can enlighten us as to how much training you've had?

I find it odd that you say that the TDP providers "didn't even have any legally trained staff and it appeared that they did not have access to lawyers. However, I am aware that they now have a contract with a firm of solicitors to provide them with legal advice, so I wonder if they have re-considered this matter." Fact is, they would have been in discussion with CLG housing lawyers at the time of drafting the Bill and subsequent amending SIs - far more qualified and in a far better position to give advice than some firm of solicitors??

Finally, re:

BTW1 - Eh???? The landlord's address is required as part of the prescribed information: Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (made 13 March 2007 and came into force 6 April 2007).

BTW2 - Er, yes, I know that, but how is it relevant to this post? I'm pointing out that renewed tenancies (where a new contract is signed for a new AST), do fall under these regulations, if the deposit is retained from the previous AST.

All I can say is that I'm glad that I'm renting via an agency where common sense has prevailed and that on the recent renewal of my fixed term contract, they saw fit to follow the government guidance and place my deposit into one of the schemes. Perhaps you can let us know the name of your agency, so that I can make a mental note never to use it?

Incidentally, it's about the only piece of legislation that the Government has introduced that I have had faith in - I'm assuming that judges will interpret it in the way that it was first intended (in it's plain english version), but good luck if you do try on any legal challenges - could be expensive for you though?

Very quickly (I will add more later if I get chance).......

(1) My first point is that I asked for legal arguments, not anecdotal evidence of behind the scenes conversations.

(2) I don't doubt the content of the emails and the conversations you claim to have had, but given the slipshod and generally sloppy manner in which much law is passed under this present Govt, what the Parliamentary Draftsman intended and what was actually passed by Parliament are frequently two different things entirely. The Minister in question may have wished for the HA 2004 to cover renewed tenancies, but that is not what the relevant section actually says. As such, given that the words of s.213 of the Act are very clear, the Minister's wishes and Dept policy are of no consequence whatsoever and merely provide further evidence of the effect that the legislative hyperactivity of this present Govt has on the quality of law passed these days and the scanty depth of understanding of it by their own Ministers! The statute books are absolutely littered with badly drafted legislation that either fails to achieve the aim it was passed for, or simply doesn't make any sense. A good example would be some of the provisions in relation to youth sentencing that I came across when doing my Bar exams. The Court of Appeal in one case used words to the effect of "these provisions just don't make sense, but we have to do our best to interpret them although we must say that it is about time Parliament got its act together and stopped passing so much badly drafted law." (if I get time I will post up the actual words used).

In conclusion on this point - that the law is what it says in the Act in question and is not what is contained in the pronouncements of Minsters, or emails of Draftsmen is one of the fundamental and most elementary principles of the English legal system and is only ever departed from in extremely rare circumstances as an absolute last resort when the meaning of an Act cannot be determined by the usual processes of legislative intepretation and the Court has to no alternative but to fall back on citations from Hansard in order to make sense of the Act (see Pepper v. Hart). That principle really is "Constitutional Law 101" and as such, your post using arguments based on such conversations/emails etc is an absolute howler. In other words, you will find that "the Horses[sic] mouth" is in fact the HA 2004 s.213(1) and not the sources you cite.

(3) You still haven't addressed in any way the point I made that continuing to hold money in a bank account does not amount to a payment and as such, TDP does not apply to tenancies that began pre-Apr 07, but are renewed after that date. You are still jumping from premise to conclusion with no intervening reasoning process. Please note that TDP is only triggered when a deposit is "paid" or "received" - forget about Govt policy or the laudable ambitions of the Minister - simply read the relevant section of the Act; HA 2004 s.213 (1) "Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme." The words "paid" or "received" connote the transfer of legal title in money from one person (the tenant), to another person (the landlord or agent). When the money has already been paid in connection with the previous tenancy and remains in the LL/LA's bank account when the tenancy is renewed, then legal title in that money does not pass, although equitable title probably does, in the form of a declaration of a new trust. I would submit that such a declaration of trust is not a payment for the purposes of the Act. I am fully prepared to be proved wrong on this issue, but no-one so far has come up with any good, legally sound arguments to show that I am wrong.

(4) You have rather jumped to conclusions (you have a habit of doing that) in assuming that my agency hasn't been TDPing deposits on renewed tenancies. I think the Govt guidance is wrong, but that doesn't mean I want to be the one who proves it in the House of Lords at his own expense!

(5) The BTWs were in relation to the post in the other thread and if you had taken the time to follow the link to that thread, that much would have been obvious. Slightly lax editing on my part I do agree - sorry. Nevertheless, I'm afraid you are incorrect on the LL address point, or else you've misunderstood things a little. My point was that the TDP providers originally claimed that an LA who was holding the deposit and performing TDP also had to provide the tenant, by way of prescribed information, with the address of the LL. As I have said, the provider soon dropped that demand when they were persuaded that it was ultra vires (ie: beyond their powers)

Edited by agent46
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