Can you counter claim at a Section 21 Court Hearing (if deposit is not protected)?

[brucemcg]

Hello,

 

My current landlord served me a Section 21 notice that expires in two months time. However, my deposit is not currently protected so from what I have read, his section 21 notice is invalid.

 

What I need to know is this: If he continues with action and makes a court date for the Section 21 notice, am I able to counter-claim for 3x deposit and return (or protection), as well as making the S21 void at a hearing?

 

I need to know if there is any kind of monetary counterclaim ability in a Section 21 hearing as there is in a Section 8 hearing, because I am eager to counterclaim for the deposit penalty (or at the very least, its protection or return) but I cannot really afford to start the proceedings myself as I am on income support/housing benefit + I don't want to tip off the landlord early that he can't evict me with Section 21 until he finds out the hard way because my deposit isn't protected.

 

Thx for your help everyone

[raydetinu]

No joy here I am afraid, Section 21 is just a notice of possession, which if not responded to may lead to him applying to the court for eviction. You can respond with counterclaim that deposit not protected and 3x deposit claimed, however it seems as long as it is prior to any court action he is not liable to the penalty.

You could wait to the hearing and then defend that it is not valid because the deposit is not protected. Case thrown out.

I pressume your contract is an AST about to end or its now become periodic!

Now armed with this he can protect and then reissue valid 21.

At best a delaying tactic only in the end.

You might, a biig maybe, have a claim for the deposit not being protected and not complying with the hosing act after the tenancy ends.

However if you loose that action it will cost you big time anf recent cases are not good ( lost ).

Suugest you search on here and make up your own mind.

[brucemcg]

Hi raydetinu,

 

Thx for the reply. By what you are saying, does that mean that there is definitely an option for monetary counterclaim if he applies to the court for eviction under section 21 even though it's a no-fault eviction process that doesn't claim for anything like arrears, etc?

 

i.e. Are you 100% sure that if he takes further action and applies to the court for eviction under s21, I can actually counterclaim for 3x deposit + protection/return AND have the case thrown out due to invalid s21 notice? I know that in all probability he would protect before the court date, but the s21 would at least be void for another two months, wouldn't it?

 

And if he DOESN'T protect the deposit by the court hearing date, would the judge then have to award me 3x penalty + return/protection as well as making the notice invalid?

[brucemcg]

Anyone?

[raydetinu]

Yep S21 would be invalid and he would have to protect it, then reissue with due notice; it is just a notice of possession.

He will have to get a court order to evict.

As things are the 3x rule is unlikely to be applied and any court action may result it high court costs to yourself!

As said your only way woulod be to claim that the LL has not conformed to ACT in its entirety, Including supplying the information wihin the prescribed time frame. but again if he protects before it goes to court he will probably get away with it. ( it realy is a lottery on the judges interpretation in The County court! there has been some high court action on thses points but still no actual preccedent set yet, all different )

Suggest you see other posts on the subject.

[The Carpet Cleaners]

I would say that all you would really achieve is 2 months longer in the place where you live, and really annoy the landlord who will promptly protect the deposit, issue another section 21 and then claim more damage than you agree to at the end of the short lived tenancy, put your whole deposit in dispute and tie it up for months whilst you have to find somewhere else to live without the use of your deposit.

 

I would say the odds of getting a counter claim in are between 0 and 1 out of 10.

[brucemcg]

Thx for the replies.

 

Well my other option at this point would be to move out with an unprotected deposit and try to chase the landlord for it back after the tenancy. From what I've read, including a recent ruling posted today on this board, it'll be extremely difficult for me to try and get my deposit back after the tenancy ends.

 

Surely I won't be liable for any costs - if the LL tries to evict me with a invalid s21 then even if I don't get the 3x penalty, I won't be liable for any costs because his court action was invalid in the first place (not to mention, I'm on income support so I don't know if a judge would issue any against me)?

[raydetinu]

If LL wont return Deposit you can still sue him for it to be returned through the courts.

or Just dont pay the last month/ few months rent to cover it ( not strictly legal) but he would have to sue you and then you can counterclaim for the deposit; so uinlikely.

[Steve__M]

With a Section 21 notice a landlord would probably apply for an "Accelerated Possession" which is supposed to be a straightforward yes/no procedure without a court hearing. I presume therefore there is no opportunity for counterclaim. Only for defence.

 

What you do now probably depends on your circumstance and your relationship with your landlord. If you are determined not to move you could stick it out. Assuming that the LL applies for accelerated possession after you fail to move out in 2 months, then fails to get it, then protects the deposit and reissues Section 21 it could be 5-6 months before you are at risk of being evicted.

 

Or you could negotiate with LL to get the deposit back and go quietly.

[Ed999]

My advice is applicable only if the rented premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you [and your spouse/partner/children if any] had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord) and you were over 18 years of age when the tenancy was granted.

 

 

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, if you were granted a shorthold tenancy -

 

- Tenancy Deposit Scheme

 

- Tenancy Deposit Protection - First High Court Decision

 

- TDS eligibility, implication of breach and legal questions answered

 

 

While the deposit is not protected, any section 21 notice given to the tenant is invalid, so will not end the tenancy. But a section 8 notice can validly be given (e.g. for rent arrears).

 

 

The Court of Appeal decided in the case of Tiensia v Vision Enterprises that if the Landlord protects or repays the deposit even as late as the day of the court hearing, or at any time before judgement (if later), the court will not be able to award the penalty of three times the amount of the deposit.

 

This was NOT overturned by the High Court decision in Potts v Densley. In Tiensia the landlord had protected the deposit at a time when the tenancy still existed. In Potts, the Court rejected the tenant's argument that it was too late for the landlord to protect the deposit once the tenancy had ended [see paragraph 55 in the Judgement].

 

 

In a further development, the Court of Appeal has decided, in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected by the landlord, that section 213 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its payment into a TDS scheme) are available to the Court. As this can only be the case if the tenancy is still on-going, the penalties for non-protection of the deposit are NOT available to the tenant after the tenancy has come to an end: the tenant CANNOT succeed in a claim for three times the deposit once the tenancy is over.

 

The practical effect of this is that the tenant must make his claim at the BEGINNING of the tenancy. Remember, a shorthold tenancy can't be brought to an end by the landlord, by notice, in the first six months; and can't be ended by a section 21 notice at any time after that, either, if the deposit is not protected.

 

 

In Potts, the tenant might still have won, if she had raised the related point that the landlord had failed to provide her with the prescribed information pursuant to section 213(5). But she failed to do so (she based her claim solely on the landlord's failure to pay the deposit into an authorised scheme), thus she lost the case.

 

 

Suing for the penalty, or merely threatening to do so, might cause the landlord to return the entire deposit to you without any deductions, thus resolving a dispute, if the tenancy has not ended.

 

The Act expressly states that the parties to the tenancy cannot agree not to protect the deposit. So it's futile for the landlord to raise this defence - but many still try to!