General Interest News

The way in which we provide some of our services will change from Monday the 23^rd March 2020 following the Government’s advice on how to limit the spread of the Coronavirus pandemic.

We want to protect the health, safety and wellbeing of clients, visitors, businesses and our staff while we continue to provide services. That is why, is line with the current Government advice, we are making some changes to how you can interact with us.

Meetings shall now largely be conducted over the phone where possible to limit the amount of face to face contact. Also, where possible, letters and documents will be sent via email as there will be no staff in the office building since we are all working from home. We will however continue to collect post from the office.

We will continue to attend court and police station appointments unless the Government announces changes to how the courts and police stations operate.

To contact our offices please call 01775 722261 as usual and you will be directed to our receptionist who will take a message for you and pass that on to the relevant person. That person shall then call you back if needs be.

For new matters, please dial 01775 722261 or email enquiries@maplessolicitors.com as usual.

There are further contact details such as email addresses under ‘Our People’ on our website at www.maplessolicitors.com.

We apologise for any inconvenience this may cause, however we shall continue to provide our services to the same standard as expected. If there are any issues arising from this, then please contact us as indicated above.

Best regards

Maples Solicitors LLP

Introduction

Since the 6th April 2007 all deposits taken by landlords or letting agents for Assured Shorthold Tenancies (“AST’s”) in England and Wales must be protected by a Tenancy Deposit Protection Scheme.

There are two types of Tenancy Deposit Protection Schemes available for landlords and letting agents, namely insurance-based schemes and custodial schemes.  The schemes are intended to:-

(i)         Allow tenants to get all or part of their deposit back when they are entitled to it and make any disputes easier to resolve; and

(ii)         Encourage tenants and landlords to make a clear agreement from the start on the condition of the property.

The schemes are required to provide a free dispute resolution service.

What is a Deposit?

A deposit for the purposes of this legislation is any money intended to be held (by the landlord or otherwise) as security for the performance of any obligations of the tenant, or the discharge of any liability of his arising under or in connection with the tenancy.

Quite often to try and evade the rules on Tenancy Deposit Schemes, landlords or their letting agents will instead take a payment of rent in advance from the tenant.

On occasions the Court have accepted that this is a payment of rent in advance rather than a deposit, but on other occasions the Court have not accepted the position.  The Court have in effect deemed that the payment of rent in advance is really a deposit and should have been treated accordingly.

If a landlord is going to take a payment of rent in advance then to minimise the risk of a Court determining that it is really a deposit it is essential that the Tenancy Agreement is worded very carefully.  For example the Tenancy Agreement must make it absolutely clear that it is rent paid in advance.  If say there is a payment of three months’ rent in advance, then the landlord should not be allowed to demand or require any other payment of rent during the three month period.  It is also good practice to expressly state that the rent is non returnable (either in full or in part) and that in this example the tenant (provided he has kept up to date with payments of the rent) would not have to pay any rent for the last three months of the Tenancy Agreement.

If these sorts of clauses are included within the Tenancy Agreement, then this will greatly reduce the risk of a Court determining that a payment of rent in advance is really a deposit.

Insurance-based schemes

Here the tenant pays the deposit to the landlord, who retains it and pays a premium to the insurer.  Within 30 days after receiving a deposit the landlord or agent must give the tenant the details as to how their deposit is protected including:-

(i)         The contact details of the Tenancy Deposit Scheme selected.

(ii)         The landlord’s contact details.

(iii)        How to apply for the release of the deposit.

(iv)        Information explaining the purpose of the deposit.

(v)         Information and guidance explaining what to do if there is a dispute about the deposit.

At the end of the tenancy if an agreement is reached about how the deposit should be divided then the landlord or agent returns all or some of the deposit.  If there is a dispute then the landlord must hand over the disputed amount to the scheme for safe keeping until the dispute is resolved.  If the landlord fails to comply then the insurance arrangements will ensure the return of the deposit to the tenant if they are entitled to it.

Custodial Schemes

Here the tenant pays the deposit to the landlord or agents and the landlord or agent then pays the deposit into the scheme.  Within 30 days of receipt the landlord or agent must give the tenant the details about how their deposit is protected as with insurance-based schemes (see above).

At the end of the Tenancy Agreement if an agreement is reached about how the deposit should be divided then the scheme will return the deposit divided in the way agreed by both parties.  If there is a dispute then the scheme will hold the deposit until the Dispute Resolution Service or Court decides what is fair.

The interest accrued by the deposits in the scheme will be used to pay for the running of the scheme and any surplus will be used to offer interest to the tenant or landlord if the tenant is entitled to it.

What happens if the landlord fails to comply with the rules of Tenancy Deposit Schemes?

If the landlord fails to comply, then an application can be made to the Court and possession of the property by the landlord can be barred.

Either the tenant or the party that agrees to pay the deposit, who may be a guarantor or former tenant, may apply to the Court if the landlord:-

(i)         Has not complied with the initial requirements of the scheme or has failed to give the tenant information about the scheme within the 30 day deadline; or

(ii)         Having claimed that a particular scheme applies, the scheme’s administrator has not confirmed this.

If either is proved then the Court must order the party that appears to be holding the deposit to repay it to the applicant (e.g. the tenant) or (where the tenancy has not ended) pay it into a designed account under the authorised custodial scheme within 14 days beginning on the date of the Order.

The 30 day deadline is an absolute time limit and a tenant can make a claim from 31 days after deposit payment if the requirements relating to deposit protection have not been met.

The penalties for non compliance apply even if the tenancy has ended or where the landlord or agent protects the deposit after the deadline.  The Courts will however take into account that protection has occurred when determining the level of penalty.

The penalty is a sum between 1x and 3x the deposit within 14 days of the Order date.

In addition a landlord who has not complied with the rules cannot use the accelerated possession proceedings triggered by serving a Section 21 Notice (two months’ notice) in respect of an AST.  If the landlord fails to provide the prescribed information then it can serve a Section 21 Notice once it has done so.  However failure to comply with the initial requirements cannot be remedied in the same way so that the landlord can serve a Section 21 Notice.  The only options are for the landlord to return the deposit (or an agreed sum) or the bringing and disposal of a claim by the tenant in respect of the landlord’s failure to comply with the scheme (which will obviously involve the landlord having to pay a penalty).

Investor/successor landlords

An investor or successor landlord purchasing a property will not be free from the penalty/sanctions referred to above even if it protects a tenant’s deposit where the seller landlord has failed to do so. In these circumstances it is advisable for the investor/successor landlord to obtain an indemnity from the seller for any loss it suffers as a result of the seller’s non compliance.

If you are either a landlord or a tenant that requires advice about a Tenancy Deposit Scheme and or possession proceedings for a residential property then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or arrange an appointment at 23 New Road Spalding Lincolnshire PE11 1DH

Maples Solicitors announces the retirement from the firm of its two longest serving Partners, Mr Philip Crew & Mr Malcolm Charlesworth after a combined 61 years service with the firm!

Philip joined Maples in August 1979, and was admitted to the Solicitors’ Role in January 1980.

On 1st January 1982 Philip became a Partner in the Practice. Philip has obtained over 30 years’ experience of handling a range of property issues and used his skills and experience to provide a first class residential conveyancing service. Philip was also heavily involved in the work of the Probate Department during his last few years with the firm.

Malcolm was admitted to the Solicitors’ Roll in April 1974, and joined Maples in 1980. Malcolm became a Partner in the Firm on 1st January 1982.

Malcolm is a Member of the Law Society Child Care Panel and also the Law Society Personal Injury Panel. He spent over 30 years’ dealing with matters from Personal Injury to Family Law.

Maples would like to wish them both all the best for the future!

Our offices will be closed from 5pm on Friday 23rd December 2022 until 8.45am on Tuesday 3rd January 2023.

We would like to take this opportunity to wish everyone a Happy Christmas and a Prosperous New Year!

Maples Solicitors LLP are delighted to announce the opening of our new office in Doncaster from 1^st November 2022.

This office will be headed up by our Property Partner Gemma Mayer with the assistance of Paralegal Sabrina Pallucci.

Gemma is local born and has over 10 years’ experience in Commercial, Agricultural and Residential Property matters.

Gemma commented “after growing up locally and attending Liverpool John Moores University, the Law took me to Lincolnshire where I spent 12 years practising in a variety of different property matters. In early 2021 my family and I took the decision to move back “home” and on returning to the area I thought, what could be better than doing what I love, in a part of the country that I love, and that is where the decision to open an office in Doncaster came from. The rest of the Partners at Maples have been fantastic in supporting me with this idea and we hope this is the first step to a long and successful stay in the area”.

As well as Gemma’s expertise in a variety of property matters, Maples are also able to assist you with a range of other legal services from making a Will, to Matrimonial issues, to Employment issues and virtually everything in between.

Please do not hesitate to contact our switchboard on 01775 722261 who will be happy to help.

Maples Solicitors LLP - “A Personable Approach to Law for over 190 years”

Maples are today celebrating a breathtaking victory in the opening Spalding Young Professionals Group event held last night at Spalding Rugby Club.

Eight teams turned up for the event, including fellow Legal Firms, Accountants and Land Agents from the area.

With the top three placings very tight Maples edged to Victory by 2 points. Well done to Gemma Turton, Chris Ayre, James Turner, Daven Naghen, Jamie Dobbs and Donna Sandison who represented Maples on the night.

We would like to pass on our compliments to the hosts for a well put together evening and look forward to taking part in any future events.