How to evict a tenant if the deposit is not protected

You may be wondering how to evict a tenant if the deposit is not protected – and the truth is, it’s not easy. The law requires that landlords put their tenants’ deposit in a deposit protection scheme within 30 days of receiving it, and failure to do so could lead to harsh penalties from the court.

Trying to evict a tenant is stressful as it is, and may become more complicated if their deposit has not been protected. But here, we’ll take a look at the procedure you’ll need to follow if you’re trying to work out how to evict a tenant if the deposit is not protected.

Can you evict a tenant if the deposit is not protected?

Let’s get straight down to it: how to evict a tenant if the deposit is not protected – can you actually do it? Basically, the rules are as follows:

• You cannot serve a valid Section 21 while the deposit is unprotected or prescribed information has not been served.
• You may still be able to use a Section 8 if you have strong grounds, such as rent arrears, but the breach of deposit rules will count against you, and the tenant could claim compensation.

If you do need to evict a tenant, you could return the deposit in full before serving the Section 21, or protect it late and settle any tenant claim. It’s important to note that the courts could still award a penalty.

Check out our related article: ‘I didn’t protect my tenant’s deposit – what now?’

How to fix an unprotected deposit before eviction

If you haven’t protected your tenant’s deposit, here’s a step-by-step on what to do next.

Work out your situation

You might find yourself in a few different situations. Firstly, confirm exactly what’s gone wrong. Did you never get around to protecting the deposit at all? Did you protect it, but miss the 30-day deadline? Did you protect it on time, but forgot to serve the prescribed information to your tenant? Or is there any top-up deposit that your tenant paid later that you didn’t protect?

It’s important to pin this down, as it affects your legal position, any potential penalties and what you need to fix before you can move forward with eviction.

Decide how you’re trying to evict the tenant

Next, decide whether you’re aiming to serve a Section 21 or Section 8. A Section 21 is usually used at the end of the fixed term or during a periodic tenancy, without having to prove that the tenant has done anything wrong. You’ll want to use a Section 8 when the tenant has breached the tenancy, for example, by building up serious rent arrears or causing significant damage.

Remember – you’ll struggle to serve a valid Section 21 notice until you’ve dealt with the deposit not being protected correctly. You may still be able to proceed with a Section 8 if you have solid grounds, but the deposit issue could still be raised against you, and the tenant could claim compensation.

Decide on your course of action

Therefore, if you want to know how to evict a tenant if the deposit is not protected using a Section 21 notice, you must fix your deposit issue first. This could mean returning the deposit in full to the tenant and ideally getting written confirmation from the tenant that they have received it. This is usually the best course of action. Alternatively, you might decide to protect the deposit late and/or reach an agreement with your tenant around any potential claim.

If you plan on serving a Section 8, start building the strongest case you can. You can do this by keeping a clear paper trail of arrears, such as a rent schedule, bank statement and copies of rent reminders. You could gather evidence of any other breaches, such as photos of damage, neighbour complaints and incident reports.

Deposit protection schemes

Every landlord should be well aware by now that deposit protection schemes are incredibly important. So, let’s fill you in and take a look at the different deposit schemes that landlords can use for tenant deposits.

The three deposit protection schemes that the government offers are:

• Deposit Protection Service
• MyDeposits
• Tenancy Deposit Scheme

If you, as a landlord, fail to use one of these deposit schemes, you run the risk of financial penalties (where the court can order you to pay your tenant up to three times the amount of the deposit) or your eviction claim being dismissed.

If you don’t use one of these schemes, it becomes much harder to evict a tenant later. Your Section 21 notice can be thrown out, and you may face a compensation claim!

Find out more in our guide to tenancy deposits.

Legal considerations

Speaking of financial penalties, let’s give a brief rundown of what this can look like. You must protect the deposit and give ‘prescribed information’ to your tenant within 30 days of receiving it.

If you fail to do so and the tenant takes you to court, a judge can order you to pay between one and three times the deposit amount as compensation for not protecting it correctly.

An unprotected tenancy deposit also renders a Section 21 invalid. This also applies if you have protected the deposit, but haven’t served the prescribed information to your tenant. You either need to return the deposit in full or resolve any claim before serving a valid notice.

Reasons for eviction

There are different reasons that you would ask your tenants to leave, whether it be because you need the property back for personal reasons, or if the tenant is failing to pay rent on time, and has done so for several months. Depending on the reason for eviction, you will either serve a Section 21 notice or a Section 8 notice – a crucial decision when you’re working out how to evict a tenant if the deposit is not protected.

Section 21 notice

A section 21 notice, also known as a ‘no-fault’ notice, is one that is served if a landlord wants to serve their tenant notice at the end of a fixed-term contract, or on a rolling periodic tenancy. As a landlord, you do not have to give your tenants a reason as to why you want the property back, but do need to provide them with at least 2 months’ notice. You cannot use a Section 21 notice until you’ve sorted the unprotected deposit.

Section 8 notice

You’re entitled to serve a section 8 notice if you want to terminate the lease early due to one of the following reasons:

• Tenants not paying rent
• Tenants damaging the property
• Tenants behaving antisocially.

Wanting to serve either of these notices becomes tricky, however, if you have not taken the time to protect your tenant’s deposit. This is due to the fact that your tenants automatically gain extra leverage as they can argue that their rights for their deposit being protected have not been met, making the eviction process more complex. It can still be used where there are serious breaches, but you’ll want strong evidence and legal advice behind you because the deposit issue weakens your position.

Learn more about how to evict a tenant.

Things to consider

There are a few other things that are worth considering when you’re looking at how to evict a tenant if the deposit is not protected in a deposit protection scheme. For example:

Seek legal guidance

Consulting with a solicitor who specialises in landlord-tenant law is crucial, especially when dealing with an unprotected deposit. They can help ensure that you follow the correct procedures and protect your rights.

Potential defences from tenants

Tenants may raise defences against eviction, such as claiming they were not properly notified or arguing that the eviction is retaliatory. Being prepared for these defences is vital. There are also possible consequences for not protecting a tenant’s deposit, such as the tenant being able to claim damages in court and delays in the eviction process.

Facing an eviction with an unprotected deposit is a stressful situation, especially when you’re worried about lost rent or damage on top of legal costs. While a tenancy deposit helps, it isn’t the only safety net. Specialist landlord insurance can protect you against risks like malicious damage, legal expenses and loss of rent. Don’t let one mistake put your whole investment at risk.

If you’re in need of landlord insurance, then make sure to contact one of our team of experts at CIA Landlords today on 01788 818 670.