Return of tenancy deposits from custodial schemes

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

This content applies to England

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 disputed, 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 (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 they are entitled to be paid a specified amount

then the tenant can 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 that:[10]

  • the tenancy ended on a certain date 

  • the tenant and the landlord have not reached agreement on the amount to be returned, including details of any communications between them since the tenancy ended

  • either the tenant cannot contact the landlord, including details of the attempts they have made to do so, or that the tenant has notified the landlord that they are requesting a specified amount and a copy of the notice

  • any information they have regarding the landlord's whereabouts are included

  • they give their consent to the use of the dispute resolution service where appropriate

  • they consider that they are entitled to the amount claimed

  • they understand that they may be prosecuted under the Perjury Act 1911 if they knowingly or willingly make a false declaration

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 they are 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 that:[14]

  • the tenancy ended on a certain date

  • that the landlord and the tenant have not reached agreement on the amount to be returned, including details of any communications between them and the tenant since the tenancy ended

  • the amount claimed has been calculated in a certain manner

  • either that they cannot contact the tenant, including details of the attempts they have made to do so, or that they have notified the tenant that they are requesting a specified amount and a copy of the notice

  • any information they have regarding the tenant's whereabouts are included

  • that they give their consent to the use of the dispute resolution service where appropriate

  • that they consider that they are entitled to the amount claimed

  • that they understand that they may be prosecuted under the Perjury Act 1911 if they knowingly or willingly makes a false declaration

Procedure when landlord or tenant missing or uncooperative

When the scheme administrator receives an application 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 they accept that the applicant should be paid the whole or part of the amount claimed

  • if they accept that the applicant should be paid part of the amount claimed, the amount they accept should be paid

  • if they do not accept that the applicant should be paid the whole of the amount claimed, whether they consent to the dispute being resolved by the scheme's dispute resolution service

  • warn 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 they respond after 14 days to say that they do not accept that the whole of the amount claimed should be paid to the applicant, say that they will be treated as having given their consent to the dispute service being used to resolve the dispute

If the other party responds within 14 days stating that they accept 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 they do 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.[19]

If the scheme administrator receives a response from the other party within 14 days stating that they accept 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.[20]

Where the scheme administrator receives a response from the other party within 14 days disputing the amount claimed, but does not indicate whether they consent to the use of the dispute resolution service, then such consent is 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]

Last updated: 17 March 2021

Footnotes

  • [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.