How to deal with unprotected tenancy deposits in the UK

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Introduction

When renting a house, a tenant may have to put down a tenancy deposit or security deposit which may or may not be protected. Sometimes a tenancy deposit can be unprotected unlawfully in which case necessary action must be taken to make sure a tenant’s right is protected.

There are also times when it is not necessary to protect a tenancy deposit. As a result, it is vital a tenant knows what to do when it comes to the law and understands their rights specific to the tenancy agreement they signed. This article goes over what you should do if a tenancy deposit isn’t protected and what kind of deposit schemes there are in the first place.

A landlord checking if a tenancy deposit is protected

What should you do if a tenancy deposit isn’t protected?

If a tenancy deposit was not protected at the start of a tenancy then the landlord should have protected it on behalf of the tenant and this is the landlord’s mistake. It is a landlord’s duty to protect the deposit in a tenancy deposit scheme and notify the tenant of where the money is and who it is protected by within 30 days. However, this is only the case in assured tenancy agreements.

If a tenant thinks their deposit hasn’t been protected then it is their job to contact the landlord to see if the deposit has been protected or not and then take action legally if they find it hasn’t. A tenant would do this by contacting their local court or contacting the local citizens’ advice bureau. Which can be found here.

How can a tenant know if their tenancy deposit is protected

If you’re not sure the deposit for your tenancy has been protected, you may be able to check the tenancy deposit scheme’s website which may tell you about the details of your deposit. With a few details from your tenancy agreement like the postcode of your residency and the date you started your tenancy, you may be able to find it.

Sometimes, depending on the type of tenancy deposit scheme, you may have to enter the details of joint tenants if you have signed a joint tenancy.

If this fails, you may be able to find the contact details of someone from the tenancy deposit scheme and you may have to ring in or send an email to reach out and check the status of your deposit. Finally, if you have this kind of relationship with your landlord or property manager, you could ask them to produce evidence of the protection of your deposit on your behalf.

What should you do if your tenancy deposit is not protected?

The good news is, if the deposit you paid to a landlord, property manager or letting agent is not protected, you still have a right to ask for it back. You just have to provide evidence that you paid it and also that you have the right to get it back by showing you have a property that is still in good condition.

It is best practice to record this by saving the emails asking for the deposit or recording the phone calls. This way, you will have evidence of when you asked for the deposit back if the case was to go to court.

Usually, if you have rent arrears or there is damage to the property that is your fault then these are legitimate reasons for your landlord to withhold your deposit and never give it back. This would have been written in your tenancy agreement.

If a landlord or someone tries to take money from the deposit for other reasons like doing renovations to the property or repairing things that were broken when you arrived then this is wrong. You should report this to court at the same time you dispute that the deposit wasn’t protected in the first place.

A tenant saving for a tenancy deposit

This can be seen as further reason to believe your landlord didn’t have the right intention when renting out the property and was planning to keep the deposit in the first place. This emphasises the need to record the property’s condition before you move in and after. 

Taking photos is something you shouldn’t be afraid to do as it’s the best evidence you have at proving the deposits are being unlawfully withheld.

What should you do if your tenancy deposit wasn’t protected within the first 30 days?

In the first 30 days of paying off your deposit, as a tenant, you should have received confirmation that your deposit has begun to be protected. If this didn’t happen it would warrant you to file a claim for compensation which can result in you receiving a financial amount that is relative to the amount you paid for the deposit.

The landlord or someone in charge of the property should protect your deposit within 30 days, give you written confirmation this took place and also ensure the deposit is protected in a government-regulated tenancy deposit scheme.

It could be that this goes on for significantly longer than the length of your tenancy agreement and realise you haven’t received confirmation that your tenancy deposit is protected or it was never protected at all. This would be where you would be within your rights as a tenant to take the property owner to court by filling out an N208 form here and providing details to your legal services, taking things further than compensation.

What should you do if the deposit was unprotected and then protected?

If the deposit was taken out of a tenancy deposit scheme such as the Deposit Protection Service, MyDeposits or the Tenancy Deposit Scheme, this is a violation of the terms of an agreement with a tenant. Under no circumstances should a landlord take a deposit unless there was a legitimate reason for doing so. 

Nonetheless, it could be that the landlord is moving the deposit from one tenancy deposit protection scheme to another one and in between there is a period where the l deposit is unprotected. In this case, you would have to wait for the deposit to transfer before you can gain access to the deposit as a tenant. This shouldn’t take any more than a few days.

What is the responsibility of the landlord when it comes to tenancy deposits?

Landlords are responsible for managing the deposits on the behalf of tenants. As a result, they must set the amount of deposit that is owed, and the time limits associated with paying deposits back and paying them in the first place. They must also ensure they follow laws that govern this process.

What is the Deregulations Act of 2015?

The Deregulations Act of 2015 is an act in legislation passed in 2015 that states a landlord doesn’t have the right to evict a tenant if they have raised legitimate concerns about the condition of their living situation.

An infographic showing a tenancy deposit being protected

This can relate to the building safety, the building regulations of their tenancy agreement, whether they feel they have not been provided with the agreed services as part of their agreement and of course if their tenancy deposit isn’t protected.

This also meant that a landlord had 90 days since the legislation was approved by the government to ensure all tenants in a periodic tenancy have their deposit protected in a tenancy deposit scheme.

It used to be the case that this type of tenancy didn’t need deposit protection but landlords must now follow these rules if they want to keep their right to evict tenants under section 21.

Tenancy deposit protection rules

We know that a tenancy deposit must be protected but what are the exact rules around how a landlord must ask for a deposit from a tenant? They refer to the practices below.

What are the tenancy deposit limits?

If you are a landlord and you want to charge a deposit, it would be the case you can only keep up to five weeks’ rent. This also means you cannot charge more than £50,000 for more expensive rent. For example, if rent is £20,000 per week for a more expensive home, you won’t be able to charge more than 2.5 weeks’ worth of rent as a deposit bringing the total up to £50,000.

What are the time limits for deposits?

A landlord must protect a deposit and show written evidence to a tenant within 30 days of the payment of a deposit. Regardless of if the tenant has moved into the property or not, the deposit must be protected in time

How do pet deposits work?

Because of the additional risk involved with keeping pets in a property, some landlords will ask a tenant to pay an additional deposit that also has to be protected in a deposit protection scheme.

This additional deposit will be used in case there are damages to the property caused by pets such as pet hair stuck in the carpet or damage to wooden furniture from clawing or biting.

What information should a landlord share with a tenant?

It is vital that as well as a landlord sharing where the tenancy deposit is being protected, they also share the amount of the deposit clearly so the tenant can pay and if there are any deductions at the end of the tenancy.

It could be that a tenant only has part of their deposit removed because there aren’t that many repairs that are needed in the property so explaining exactly how much and how often this has to happen is essential.

What happens if the rules of a tenancy deposit are broken?

Like most legislation in property, there are consequences if you break the rules. As a landlord, the failure to protect a deposit or the unlawful withholding of the deposit from a tenant could result in you having to pay compensation or lose your rights to evict a tenant from a property.

A tenant receiving compensation after their tenancy deposit wasn’t protected

Compensation

Compensation is commonly paid if there is a more minor offence that has been done regarding tenancy deposits. For example, protecting a tenancy deposit later than required (after 30 days of the deposit payment) or not providing the correct information to a tenant.

In order for this to happen a tenant will have to take a landlord to court and prove they have broken the terms of their tenancy agreement about the deposit or not complied with the Deregulations Act of 2015.

Losing section 21 rights

If a landlord doesn’t protect a tenant’s deposit, they could be in breach of their tenancy agreement which wouldn’t allow them to evict a tenant under section 21. Also if a landlord has kept a deposit unfairly or charged tenants fees that they shouldn’t be paying for as part of their deposit, this also means a section 21 notice is invalid. 

Usually, in these cases, a landlord will have to bring a tenant to court in order to evict them and both sides will have to give their evidence. This may result in the tenant being given some extra time to leave the property where they don’t have to pay rent.

Losing section 8 rights

If a landlord wants to evict a tenant using section 8 because there is damage to the property, they have the right to withhold the deposit and wait for the tenant to be evicted by going to court. The reason why you’d have to go to court and cannot give notice for eviction straight away is that the deterioration of a property isn’t a mandatory ground for eviction.

However, with the right evidence, it shouldn’t be too hard for a landlord to make a good case and win.

To conclude

Overall, the topic of tenancy deposits is complicated because each landlord can effectively come up with their own rules for the deposit they charge. However, there are still general guidelines a tenant and landlord have to follow, one of which ensures that a tenancy deposit is always protected. So, as a landlord or tenant, familiarise yourself with the rules before charging or paying a deposit on a property.

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andreas gerazis

Andreas Gerazis

Experienced landlord

Andreas is a certified landlord with extensive knowledge about the UK property market as he has been actively investing for half a decade. Founder of the first three-in-one property management software, Lofti Proptech, Andreas has a brilliant understanding of the details surrounding what it takes to grow and run a thriving property portfolio.