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Possession


>> Grounds for possession: Housing Act 1988 (as amended)

The Housing Act 1988 as amended by the Housing Act 1996 lays down certain circumstances (grounds) under which a landlord applying for possession of a residential property may be successful. The grounds for possession fall into two categories: mandatory, where the tenant will definitely be ordered to leave if you can prove the ground exists, and discretionary, where the court can decide one way or the other (i.e. the Judge has a ‘discretion’ whether or not to make the order).

Mandatory grounds - 1 to 8: Grounds 1 to 5 are prior notice grounds which means they can usually only be used if you notified the tenant in writing before the tenancy started, that you intended one day to ask for the property back on one of these grounds. For example Ground 1 can be used if the property let was or is intended to be after the let, your own home. Ground 2 relates to a mortgagee’s right to possession and if the property is subject to a mortgage you will often be required to serve this notice on your tenants. Ground 3 relates to lets for out of season holiday homes, grounds 4 and 5 are not relevant to most private landlords. 

Ground 6 relates to recovery of possession when the landlord needs to carry out substantial building works.  It cannot be used by landlords by purchase.  You should seek legal advice if you are looking to use this ground.

Ground 7 can be used to recover possession after the death of the tenant where the tenancy has devolved under their will or intestacy.

Ground 8 relates to serious rent arrears and is the main mandatory ground which will be used by landlords.  This ground will be satisfied if both at the time of service of any Section 8 notice (see further below) and at the time of the court hearing, the tenant is in arrears of rent of either two months or eight weeks. So if the monthly rent is £400 or £100 per week, the arrears must total £800 or more at these two dates. If the tenant brings the arrears down to less then two months before or at the hearing for possession the ground will not be made out. However you will have the rent!

Note that it is unwise to use this ground if the tenant has a valid ground for complaint against you, as they could seek to defend and counter claim on this basis. It is wise therefore to resolve any disputes, for example regarding disrepair, before proceeding to recover possession based on the rent arrears ground (this will not apply however to claims for possession under the section 21 route).

When an order for possession has been obtained under a mandatory ground, the order will normally be effective in 14 days. The judge’s powers to stay and suspend the order are limited to six weeks, and can only be used if the tenant would otherwise suffer hardship.

Discretionary Grounds - 9 to 17: As a general rule landlords will not wish to use any of these grounds as most landlords seeking possession will want to be certain that they will obtain this (or in the case of the serious rent arrears ground, the rent). There are number of potential disadvantages of basing a claim for possession solely on discretionary grounds:

  • They give a window of opportunity for the tenant to defend
  • The tenant may be able to obtain legal aid to defend
  • The judge will normally be sympathetic towards the tenant as they will potentially be made homeless which is a serious matter. Judges do not like making tenants homeless, particularly if there are children
  • If you lose, you will probably be ordered to pay your tenant’s legal costs, and
  • Where possession is obtained under a discretionary ground, the judge can suspend the order for possession if he thinks it appropriate (which he frequently will) which means that even though you may have an order for possession you may not be able to actually get your property back.  Even if the tenant breaches the order, judges will often re-instate a suspended order if they consider it reasonable

The discretionary possession grounds include:

  • The provision of suitable alternative accommodation
  • Rent arrears of less than two months and persistent delays in the payment of rent
  • Other breaches of the tenancy agreement
  • Deterioration in the condition of the property and its furniture
  • Creating a nuisance to neighbours
  • Using the property for illegal purposes
  • Lettings to employees
  • False statements at the time the tenancy was granted

Most landlords, if they have got as far as considering going to court for possession, will want to obtain this as quickly and easily as possible.  For this reason it is best to avoid the ‘discretionary’ grounds for possession and just to use one of the mandatory grounds.

If the judge decides in the end to exercise their discretion not to make an order for possession, you can also be ordered to pay the tenant’s legal costs.  If the tenant has obtained legal aid to defend your claim the costs could be very substantial.

If you use the mandatory ground then he has no discretion and he cannot delay the date for possession by more than six weeks.

The two types of claim most commonly used by landlords to recover possession are claims based on the serious rent arrears ground, ground 8 [see section 6.2.2 below] or a claim under section 21, normally using the accelerated procedure. If you wish to bring proceedings based on any other ground then you should take legal advice. 

Note also, that if your tenant has a complaint against you, such as for disrepair, it is best to sort this out before issuing proceedings as otherwise your tenant can counter claim on this basis and this will delay, or perhaps even prevent altogether, the obtaining of your order for possession. 

If you are acting in person you should always seek legal advice if your claim is defended.

>> Possession for rent arrears

Ground 8 is a mandatory ground which means that provided you are able to prove the ground at court, the judge cannot refuse you an order for possession.  What you will have to prove under ground 8 is that :

  • You have served a possession notice properly drafted in accordance with section 8 of the act
  • The tenant is in arrears of rent of two months worth or more at the date of service of that notice, and
  • At the date of the court hearing

There are two ‘discretionary’ grounds for possession based on rent arrears of less than two months. However, using these grounds alone is not advisable as the Judge does not have to grant an order for possession (the making of an order is in his ‘discretion’), and if he does grant an order he has the power to suspend it on terms.

Whichever type of procedure you use, note that none of them are quick - even the so called ‘accelerated’ procedure can take up to 10 weeks before an order is made, during which time you will probably not be receiving any rent. You should therefore take action on rent arrears as soon as possible.

>> Section 8 notices

Before bringing proceedings for possession based on any of the above grounds, it is necessary to first serve a notice in accordance with the provisions of section 8 of the Housing Act 1988 (see further on this below).  In most circumstances the Judge can waive the requirement of this if he considers it reasonable to do so, but he cannot waive this in the case of claims for possession based on ground 8 (Rent Arrears).

So far as section 8 notices are concerned, the period of notice is usually either two weeks or two months, depending on which ground for possession you are using (Serious ground 14 cases can go to court immediately after serving the notice.)

The notice periods for each ground are given in the list of grounds for possession. You must give notice on a special form called ‘Notice seeking possession of a property let on an Assured Tenancy or an Assured Agricultural Occupancy’, available from law stationers, and rent assessment panel offices, from some of the online services providing legal information, documentation and support for landlords. Note that the ‘Assured Tenancy’ in the title of this form includes assured short-hold tenancies which, technically, are a variant of assured tenancies. 

The form asks you to state which of the grounds for possession is being used, each should be written as it appears in the legislation (many forms will have this pre-printed and you just delete the parts which are not relevant). Note that if the ground is copied incorrectly and/or if any part is left out, this will make the form invalid.

>> Possession prior to expiry of agreement

If you wish to obtain possession of the property during the fixed term of an assured or assured short-hold tenancy, you can only seek possession if:

  • One of the grounds for possession in schedule 2 of the Housing Act 1988 (as amended) apply [see section  6.2.1 above], and
  • The tenancy agreement has a clause in it providing for this (this is sometimes known as a forfeiture clauses, even though forfeiture cannot be used for assured/assured short-hold tenancies), or
  • By activating a properly drafted break clause and then using the section 21 procedure. Note that break clauses, to be valid, must be available for use by both the landlord and the tenant, not the landlord alone

>> Procedure for possession

You can apply to the court to start court proceedings as soon as the notice expires. You can do this yourself or, if you are unfamiliar with court work, instruct a solicitor. Alternatively, some online legal services for landlords provide ‘do-it-yourself’ kits for a modest price. If you use a solicitor, make sure it is one who is experienced in this area of work. There are several firms who specialise in this work and who should be able to offer a fixed fee. Your landlord association will be able to recommend a suitable firm or many of them will advertise on the internet e.g. via online landlords services such as:

www.landlordzone.co.uk

As this type of claim involves a court hearing, it is best to get at least some advice before starting unless you are familiar with court work.

Note that the most common reason for possession claims being rejected by the court is that they are signed by a letting agent. Only the landlord personally or his solicitor can sign the court papers. Your letting agent can help you draft the paperwork but he cannot sign on your behalf (unless there is a properly drafted power of attorney which must be produced to the court).

After proceedings have been issued at court you will usually have to wait at least a month for a court hearing. The tenant is not required to vacate the property until there is a court order requiring them to do so (although they will sometimes do so).

If the court orders possession on one of the mandatory grounds, the tenant will have to leave on the date specified in the court order - this is called an absolute possession order. Normally the order is 14 days from the date of the court hearing, but the judge can delay this by up to six weeks if the tenant is able to show exceptional hardship. However the judge is not allowed to exceed this six week limit.

If the court orders possession on one of the discretionary grounds, it can either grant an absolute possession order or it may allow the tenant to stay on in the property provided the tenant meets certain conditions - for example, paying back an amount of rent arrears each week.

This is called a suspended possession order and the tenant cannot be evicted provided that he or she meets the conditions.

You cannot evict the tenant yourself. If the tenant refuses to leave after the date specified in the order, you must seek a warrant for eviction (request for Warrant of Possession of Land N325) from the court and pay an additional court fee. The court will arrange for bailiffs to evict the tenant. You will need to attend this appointment to take possession from the bailiffs.

If the tenant breaches the conditions of a suspended possession order you may apply to the court for an absolute possession order or a warrant for possession, depending on the terms of the suspended order. Frequently the tenant will then apply to the court for a ‘stay of execution’ which is usually granted by the judge. 

You can continue to accept rent from your tenant at any time during this process, from service of the notice to eviction. The old rule that you could in some circumstances invalidate your right to possession by accepting rent does not apply for assured/assured short-hold tenancies.  Indeed you must accept rent if it is offered to you - you cannot artificially continue a rent arrears claim by refusing to accept the rent. 

If a possession order is made, technically this ends the tenancy.  However the court will order that you are entitled to receive rent until the tenant actually vacates the property, on a daily basis. This used to be called ‘mesne profits’ but is now normally called an occupation rent. 

If possession is ordered on the grounds of rent arrears, the court will normally order the tenant to pay back the rent owed at a rate appropriate to their circumstances. If asked to consider it, the court may also award a sum to cover interest on the outstanding rent.

>> Claims for rent alone

If you do not want to bring a claim for possession, or if the rent arrears are less than two months /eight weeks, you can also bring a claim for a judgement, often referred to as a CCJ

>> Section 21 notices

The provision of notice under the notice procedure set out in section 21 of the Housing Act 1988 allows you to recover possession of the property from the tenant at the end of the fixed term.

A section 21 notice is by far the best course of action to use if you wish to evict your tenant for any reason, be it rent arrears, or disruptive/anti-social behaviour, or simply because you want the property back for your own use. Indeed there
is no need to mention in the court papers the real reason why you are seeking possession.  The requirements for an order for possession under section 21 are:

(1)  That the tenancy is an assured short-hold tenancy

(2)  That any fixed term of the tenancy has expired

(3)  That a notice properly drafted in accordance with the provisions of section 21 has been served on the tenant, and

(4)  That the proper notice period was given  to the tenant and has expired at the time proceedings are issued.

If these requirements are met, and assuming there is a written form of tenancy agreement, you will be able to use the ‘accelerated possession procedure’ [see section 6.2.8].

The main advantage of the section 21 procedure is that for cases where the requirements are satisfied, the judge cannot refuse to make an order, so the tenant cannot prevent you recovering possession by paying off all or part of any arrears. 

A section 21 notice needs to be served at least two months before proceedings are issued and proceedings cannot be issued before the expiry of the fixed term of the tenancy. However it is often wise when granting tenancies, if you suspect that a tenant may not be satisfactory, to only grant a shorthold fixed term for perhaps three months (certainly not longer than six months). You may want to serve a section 21 notice towards the start of the tenancy, however though it does not appear to have been tested, it may be that if you serve a section 21 notice near the start of the tenancy, the tenant will most likely be able to leave at any time without giving you notice. (Because you can’t one minute ask a tenant to leave, then complain when they do!)

A section 21 notice should not be served on the same day that the tenancy documents are signed as it will then be open to the tenant to argue that it was served on them before the tenancy was signed.  You cannot serve a notice to end a tenancy which has not begun yet. Section 21 notices should be served at least one day after the tenancy has started. 

The notice needs to be properly drafted. A letter asking the tenant to leave will not be valid. It is best to use one of the forms available from law stationers or some of the online landlords legal services. You may even prefer to have it drafted by a solicitor, the fact that it is served under cover of a solicitors letter may make your tenant think twice. The notice:

  • Must be in writing
  • Must state that possession is required under section 21 of the Housing Act 1988
  • Must have a notice period of at least two months
  • If the fixed term of the tenancy has not expired, the notice must not expire before the end of the fixed term
  • If the tenancy is a periodic tenancy, and the notice is served during the periodic tenancy, the notice period must be at least two months and the date specified in the notice must be the last day of a period of the tenancy. So for example, if the rent is payable on the 15th day of every month, then the periods will be from the 15th to the 14th of every month. The date on the notice must be the 14th of the month. The notice period therefore will be between two and three months depending on when in the month the notice is served.
  • If you serve a notice ‘during’ the fixed term and it expires in a periodic tenancy, then, because the notice was served during the fixed term, there is no requirement to end the notice on the last day of a period of the tenancy. It may end on any day in this case (as long as it is at least two clear calendar months)

It is very easy to get the expiry date of the notice wrong for periodic tenancies and this is a common reason for judges refusing to make orders for possession.  Many of the printed forms you can buy will include some ‘saving wording’ which should mean that the notice will still be valid even if you get the date wrong. However, even a notice with the saving formula can be invalid if the date you entered was wrong. Therefore, the safest option is to use a notice that does not include a calendar date. In an important court case, a judge clarified the position for landlords serving section 21(4) notices:

“Because of the wording of section 21(4) if an actual date is to be given in the notice it must be ‘the last day of the period of the tenancy’ and there is an obvious risk of a minor arithmetical error giving rise to the argument that the notice is invalid which is no doubt why the printed form suggests as a possible wording that the notice will expire ‘at the end of the period of your tenancy which will end after the expiry of 2 months from the service upon you of this notice’. In my judgement, that is a form of words which does meet the requirements of section 21(4) because the tenant knows or can easily ascertain the date referred to.” (Kennedy LJ at 69M).

Try to use one of these forms if possible. Do not delete the special wording or alter it in anyway. 

You should make at least four copies of the notice and you may serve one on the tenant by hand in the presence of a witness. However, the best way to serve the notice is by ordinary post but you must get a free of charge ‘certificate of postage’ which is available from all post offices. This will prove that you posted the notice and is therefore sufficiently served. Recorded delivery is not always satisfactory as the tenant can refuse to accept delivery. Always make sure you keep a copy of the notice for yourself because you will need to send a copy to the court (along with proof of postage) should you need to commence possession proceedings in the court. The ideal scenario would be to both post a copy, getting a certificate of postage and hand deliver a second copy.

When the notice has expired, you will be able to issue proceedings for possession using the accelerated procedure.

>> When an assured shorthold tenancy can be ended

If the tenancy started on or after 28 February 1997 it is automatically an assured short-hold tenancy (assuming that no notice has been given to the tenant to the contrary) you have a right to recover possession using the section 21 procedure.
 
Note that when using this procedure the judge cannot grant an order for possession during the first six months of the tenancy. For example if you grant a tenancy for a period of two months from 1 January and issue a section 21 notice on the second day of the tenancy, you will be able to issue proceedings for possession shortly after the fixed term has expired, i.e. in early March.
 
However, when making the order for possession the Judge cannot order that possession be given earlier than 1 July.  Realistically this is not normally a problem as by the time the court papers have been drafted and issued and gone through the court system, the six month period will be nearing its end anyway.

This six month ‘moratorium’ (as it is called) does not apply to second or subsequent tenancies of the same property. However if the tenant is renting a room in a shared house and moves to another room, this will count as a new tenancy and the six month moratorium will apply, even though he may have lived in another room in the house for some time.

>> Accelerated possession procedure

If you are looking to recover possession of your property under the ‘no fault’ section 21 procedure, the best way of doing this is via the so called ‘accelerated’ procedure. The accelerated possession procedure is fairly straightforward and inexpensive and does not normally involve a court hearing. The court will make its decision by looking at the documents that you and the tenant provide, unless it considers that a hearing is required.

You can only use this procedure if the following applies:

  • The tenancy is an assured shorthold tenancy
  • You have a written tenancy agreement (you cannot use this procedure for oral tenancies)
  • You have served a properly drafted section 21 notice and the notice period has expired.
  • Needless to say, as the judge will be deciding this case on the paperwork, it is important that your paperwork is perfect

You should apply to the county court using the special form for accelerated possession proceedings. More information can be obtained from the Court Service or the Court Service’s website. If you are at all uncertain, it may be wise to use a solicitor, particularly if you require possession urgently, as judges are unforgiving of landlords mistakes. There are several firms who specialise in this work and who should be able to offer a fixed fee. Your landlords association will be able to recommend a suitable firm or many of them will advertise on the internet e.g. via online landlords services such as:

www.landlordzone.co.uk

The tenant should leave the property on the date specified in the court order. However, if the tenant refuses to leave, you still cannot evict the tenant yourself. You must apply for a warrant for eviction from the court, which will involve an additional fee. The court will then arrange for bailiffs to evict the tenant.  You will need to attend this appointment to receive possession from the bailiffs.

>> End of a fixed-term assured tenancy

When an assured tenancy comes to the end of a fixed term, any replacement tenancy agreed with an existing assured tenant will automatically be on assured terms whatever the tenancy agreement says. To avoid any misunderstanding with the tenant, it is helpful to state in the replacement tenancy agreement that the tenancy is not a short-hold tenancy (make sure before doing this however that it really is an assured tenancy otherwise by adding this notice you will be creating one).

If you do nothing, the tenancy will automatically run on from one rent period to the next on the same terms as the preceding fixed term assured tenancy.

When an assured tenancy ends you can:

(i)  Agree a replacement fixed term assured      tenancy (if the tenant will agree to this)

(ii)  Agree a replacement assured tenancy on a periodic basis called a contractual periodic tenancy

(iii)  Do nothing and allow the assured tenancy to run on with the same rent and terms called a statutory periodic tenancy.

If you choose option (i), you will only be able to regain possession during the fixed term on one of grounds for possession in the Housing Act 1988 (as amended), grounds 2, 8, 10 to 15 or 17 although after the fixed term has ended, possession may be applied for on one of the grounds in the grounds for possession list. You do not have an automatic right to regain possession of an assured tenancy at the end of a fixed term.

Note that because they have security of tenure, if an assured tenant refuses to sign a new tenancy agreement, realistically there is nothing you can do to force them to sign. 

>> Rent act and common law tenancies

Some types of tenancy do not fall within the statutory code set up by the Housing Act 1988 and different rules for possession apply in these cases. These are mainly tenancies which are protected under the Rent Act 1977 and common law tenancies.

Rent Act tenants: Rent Act tenants are very difficult to evict, as they have long term security of tenure. Generally they can only be evicted if they are in arrears of rent or if suitable alternative accommodation is provided for them.

If the tenant is in arrears of rent, it is possible to bring proceedings for possession on the basis of forfeiture. If you do this you do not need to serve any form of notice on the tenant first (although it is advisable to warn them that possession proceedings are immanent if they do not pay).  Although for Rent Act tenants, there is no mandatory rent arrears ground, Judges will normally make an order for possession if the rent is greater than two months (8 weeks). However the Judge has unlimited powers to suspend or stay the order as he thinks fit.

If the tenant is not in arrears, the only other eviction ground which has any chance of success  is that suitable alternative accommodation is available to the tenant. Note that the accommodation must be on a protected tenancy (which it will be if the suggested accommodation is to be provided by the same landlord) or equivalent (if provided by another landlord).  Offering a tenancy on an assured short-hold basis will not be sufficient. 

There is a lot of case law on the question of suitable alternative accommodation and if you are considering using this ground it is advisable to seek legal advice, certainly before buying any replacement property.

Common law tenants: Provided the proper procedure is followed, evicting common law tenants is not difficult. As discussed in section 2.1.5 above, these are normally:

  • Lets to companies
  • Lettings by resident landlords
  • Lettings at a rent of over £25,000

You will not normally be able to evict during the fixed term unless there is a break clause in the tenancy agreement or the tenant breaches the terms of the tenancy agreement. However after the fixed term has expired, you can end the tenancy at any time by serving an old style ‘notice to quit, which can be obtained from most law stationers or online legal services.  This must give a notice period of not less than four weeks. Once this has expired, if the tenant has not vacated, you can apply to the court for an order for possession which you are entitled to as of right. You do not need to give any reason for asking for possession.

During the fixed term the tenancy can be forfeited on the basis of rent arrears as described for Rent Act tenancies above.  It is technically possible to forfeit the tenancy for other breaches of the tenancy agreement but this is not often done. If you wish to do this, you should seek legal advice from a solicitor experienced in eviction work. 

>> Unlawful eviction

The Protection from Eviction Act 1977 makes it a criminal offence for any person to unlawfully deprive a ‘residential occupier’ of the right to occupation of the premises. This means that the only legal way you can evict a tenant is by obtaining a court order. Any term in the tenancy agreement that says otherwise will be void. 

‘Residential occupier’ is defined in the Protection from Eviction Act 1977. It covers virtually everyone living in residential accommodation and will certainly cover all tenants who rent from private landlords.

The act does specify certain classes of occupier where this does not apply, in particular lodgers who share living accommodation with their landlords, but even here eviction must not involve any force. 

The procedures for lawful eviction of tenants are laid out in the various Housing and Rent Acts as detailed above.

To lawfully evict a tenant you must first serve the appropriate Notice, then obtain a Possession Order that must only be enforced by the County Court Bailiff.

>> Harassment

It is a criminal offence under the Protection from Eviction Act 1977 for any person to harass a residential occupier in such a way that as a result they could be expected to give up their accommodation.

The key elements of harassment are defined as:

  • Acts likely to interfere with the peace and comfort of the Residential Occupier OR
  • The persistent withdrawal of essential services

AND EITHER

  • Is committed by any person with the intention of causing the Residential Occupier to leave OR
  • Is committed by any person with intent to stop the Residential Occupier pursuing their legal rights (for example, complaining about disrepair) OR
  • Is committed by a Landlord or Agent who knows or has reasonable cause to believe that a likely result of their acts is that the Residential Occupier leaves, or causes them not to pursue their legal rights

Common acts of harassment can include:

  • Threats of violence or unlawful eviction
  • Disconnecting gas, electricity or water
  • Deliberately disruptive repair works
  • Frequent visits, at unreasonable hours
  • Entering the property without the tenant’s permission

Local authorities may prosecute landlords who harass tenants. The penalties are the same as for unlawful eviction [see section 6.2.11]. If therefore you receive a letter from your local authority regarding alleged harassment by you of one of your tenants, you should take this very seriously. Be very careful with your dealings with that tenant and keep a detailed record of all meetings and telephone conversations. 

Tenants can claim special and general damages through the civil courts against landlords who harass them which can be substantial and costly.

>> Outstanding bills

If the accounts for gas, electricity, water, telephone etc. are in the name of the tenant, then payment is a matter between the tenant and the supplier, and the supplier cannot require you to pay. When the tenant moves in, you should notify all the suppliers of the name of the new tenant and the date when the tenancy started. You need to pay the bills for any services used during a void period. As there are so many different suppliers, it is helpful to notify the new tenant of the name of the existing suppliers if known.

If you think there could be a problem for the tenant to pay quarterly bills, you can suggest they get pre-payment ‘card’ meters fitted, although this can be more expensive.

If the gas or electricity company is trying to charge you, when you have notified them of the name of the new consumer (tenant), you can complain to Energy Watch on their dedicated helpline:

0845 906 0708

Via Type talk on: 18001 08459 06 07 08

Or via email at:: enquiries@energywatch.org.uk

Their website is: www.energywatch.org.uk

If you are paying the bills yourself, because you are renting out rooms, then you should include the estimated cost of the fuel in the rent. That way there should be no outstanding bills to worry about.

If for some reason you keep the supplies in your name but want the tenant to pay, you’ll need to ask the suppliers to provide a bill promptly at the end of the tenancy so you know how much the tenant owes. This arrangement should be avoided, if at all possible. If you want to be able to offset the final bill against any deposit you may hold, you need to make it clear in the tenancy agreement that the deposit can be used in this way.

>> Meter readings

During the final inspection when the tenant is moving out, you should take meter readings yourself and agree it with the outgoing tenant, in case there is a dispute. You should also ask which companies are supplying gas and electricity etc.

>> Damage and return of deposit

At the end of the tenancy you should go through the inventory and schedule of condition (preferably in the presence of the tenant) to identify missing items, breakages and any damages that the tenants will need to pay for out of their deposit. The cost of such items should be assessed and a schedule drawn up. Tenants are not liable for fair wear and tear of the furniture, fixtures and fittings.

Under the Tenants’ Deposit Protection Regulations you will be required to provide evidence of damage or breakages in order to make a claim against the tenant’s deposit. Deposits should be returned to tenants as soon as possible. [See section 2.3.2, Tenancy Deposit Protection Schemes]

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