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Custodial schemes

This content applies to England

Return of the deposit under a custodial scheme, and potential disputes, including in cases of absent or uncooperative landlord or tenant.

Agreement

If the landlord and tenant agree on the amount to be returned to each at the end of the tenancy, they will need to notify the scheme administrator.[1] If the scheme administrator is satisfied that they have reached the agreement, it must repay the relevant amounts to the tenant and/or landlord within 10 days.[2]

If the return of the deposit has been the subject of a dispute, the dispute may be finally resolved by using either:

  • the scheme's dispute resolution procedure[3]
  • the courts, in which case the court's decision must be final (ie there must be no appeal outstanding and the period for bringing an appeal must have expired).[4]

When a dispute is finally resolved, the scheme administrator must arrange for repayment of the relevant amounts to the tenant and/or landlord within 10 days.[5]

Absent or uncooperative landlord

If a deposit is retained under a custodial scheme, and:[6]

  • at least 14 days have elapsed since the day on which the tenancy ended
  • the landlord and tenant have not agreed upon the amount to be paid to each
  • the tenant has no means of contacting the landlord,[7] or the tenant has served notice on the landlord claiming a specified amount but the landlord has not responded within 14 days,[8] and
  • the tenant believes that s/he is entitled to be paid a specified amount

then the tenant may make an application to the scheme administrator for repayment of the specified amount.[9]

The application must be accompanied by a statutory declaration made by the tenant stating:[10]

  • the date on which the tenancy ended
  • that s/he and the landlord have not reached agreement on the amount to be returned, including details of any communications between her/him and the landlord since the tenancy ended
  • either that s/he cannot contact the landlord, including details (addresses, email addresses, telephone numbers, etc) of the attempts s/he has made to do so, or that s/he has notified the landlord that the s/he is requesting a specified amount and a copy of the notice
  • any information s/he has regarding the landlord's whereabouts
  • that s/he gives her/his consent to the use of the dispute resolution service where appropriate
  • that s/he considers that s/he is entitled to the amount claimed
  • that s/he understands that s/he may be prosecuted under the Perjury Act 1911 if s/he knowingly or willingly makes a false declaration.

The application will be dealt with as detailed below when a landlord or tenant is missing or uncooperative.

Absent or uncooperative tenant

If a deposit is retained under a custodial scheme and:[11]

  • at least 14 days have elapsed since the day on which the tenancy ended
  • the landlord and tenant have not agreed upon the amount to be paid to each
  • the landlord has no means of contacting the tenant,[12] or the landlord has served notice on the tenant claiming a specified amount but the tenant has not responded within 14 days, and
  • the landlord believes that s/he is entitled to be paid a specified amount in respect of an amount of unpaid rent or damage to the premises or property (other than damage caused by fair wear and tear)[13]

then the landlord may make an application to the scheme for repayment of the specified amount.

The application must be accompanied by a statutory declaration made by the landlord stating:[14]

  • the date on which the tenancy ended
  • that s/he and the tenant have not reached agreement on the amount to be returned, including details of any communications between her/him and the tenant since the tenancy ended
  • how the amount claimed has been calculated
  • either that s/he cannot contact the tenant, including details (addresses, email addresses, telephone numbers, etc) of the attempts s/he has made to do so, or that s/he has notified the tenant that s/he is requesting a specified amount and a copy of the notice
  • any information s/he has regarding the landlord's whereabouts
  • that s/he gives her/his consent to the use of the dispute resolution service where appropriate
  • that s/he considers that s/he is entitled to the amount claimed
  • that s/he understands that s/he may be prosecuted under the Perjury Act 1911 if s/he knowingly or willingly makes a false declaration.

The application will be dealt with as detailed below.

Procedure when landlord or tenant missing or uncooperative

When the scheme administrator receives an application (as detailed above) from either the tenant or landlord because the other party is absent or uncooperative, the scheme administrator must give the other party a copy of the application and statutory declaration and a notice.[15] The notice must:[16]

  • ask the other party if s/he accepts that the applicant should be paid the whole or part of the amount claimed
  • if s/he accepts that the applicant should be paid part of the amount claimed, the amount s/he accepts should be paid
  • if s/he does not accept that the applicant should be paid the whole of the amount claimed, whether s/he consents to the dispute being resolved by the scheme's dispute resolution service
  • warning the other party that if no response is received within 14 days the whole of the amount claimed will be paid to the applicant[17]
  • if s/he responds after 14 days to say that s/he does not accept that the whole of the amount claimed should be paid to the applicant, s/he will be treated as having given her/his consent to the dispute service being used to resolve the dispute.

If the other party responds within 14 days stating that s/he accepts that the amount claimed should be paid to the applicant, the scheme administrator must pay the amount claimed to the applicant within 10 days of receiving the response.[18]

If the scheme administrator receives a response from the other party within 14 days stating that s/he does not accept that the applicant should be paid the amount claimed, the scheme must refuse the application, inform the applicant of the other party's response, and not pay any amount until the dispute is finally resolved (see above).[19]

If the scheme administrator receives a response from the other party within 14 days stating that s/he accepts that only part of the amount claimed should be paid to the applicant, the scheme administrator must pay that part to the applicant within 10 days of receiving the response, and treat the other part in accordance with the paragraph above.[20]

Where the scheme administrator receives a response from the other party within 14 days disputing the amount claimed, but does not indicate whether s/he consents to the use of the dispute resolution service, then such consent will be treated as having been given, and the scheme administrator must inform the applicant that such consent is treated as given.[21]

If the scheme administrator does not receive a response from the other party within 14 days, it must pay the amount claimed to the applicant within 10 days.[22]

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. Visit Shelter Cymru for more details about the law in Wales.

[1] para 4(2), Sch.10 Housing Act 2004.

[2] para 4(3), Sch.10 Housing Act 2004.

[3] para 4(4A), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[4] para 4(4), (6), and (7), Sch.10 Housing Act 2004.

[5] para 4(5), Sch.10 Housing Act 2004.

[6] para 4B(2), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[7] para 4B(3), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[8] para 4B(4), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[9] para 4B(1), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[10] para 4B(6), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[11] para 4A(2), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[12] para 4A(3), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[13] para 4A(5), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[14] para 4A(7), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[15] para 4C(1), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[16] para 4C(2), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[17] para 4C(8), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[18] para 4C(3), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[19] para 4C(4), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[20] para 4C(5), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[21] para 4C(7), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

[22] para 4C(6), Sch.10 Housing Act 2004, as inserted by art.3 Housing (Tenancy Deposit Schemes) Order 2007 SI 2007/796.

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