Deposit protection

[Ineedadvice]

My property is managed by a letting agency, which took a deposit from the tenant. They then registered it with an insurance-based deposit protection scheme, and, it appears, very deliberately, arranged for the registration to be invalid. I have talked with the scheme, and it cannot be corrected with them.

The tenancy is ending and the tenant is two months behind with the rent.

We have issued a Section 21 notice, but, as I have just discovered, we do not have the proof of deposit protection needed to go to court.

I am advised that I can insist that the letting agency hand over the deposit to me so that I can re-register it, but if anyone can give me any advice as to what leverage I have to force the agency to hand over the deposit, I would be extremely grateful.

Many thanks.

[smorri11]

I'm afraid i can't really help on this - but it sounds fairly similar to a situation we had with our last letting agent

by any chance does your letting agent company name begin with a K?

[Ineedadvice]

I'm afraid i can't really help on this - but it sounds fairly similar to a situation we had with our last letting agent

by any chance does your letting agent company name begin with a K?

[Ineedadvice]

No, it doesn't begin with K. What happened in your case?

[smorri11]

They had an insurance for the deposit but failed to register the individual deposit (they told us they had registered it) - at the end of the tenancy, the tenant took legal advice and we ended up having to settle out of court!!!

[SPEEDTWIN]

It is now accepted that the agent can be taken to court for the x3 but it would depend on who the tenant named on the court papers.

To cover yourself find the funds to protect the deposit again in the custodity scheme.

How did the agent arrange for the deposit protection they did to be made invalid?

If the tenant is 2 months in arrears/owing you can still go down the section 8 grounds 8,10,11 route and then apply for a court hearing after 14 days.

So protect the deposit yourself NOW to stop any future x3 claim

Serve a section 8

You can also serve another s21 after protecting the deposit (this would be for back up in case the T brings arrears under 2 months)

When you have got your property back take the agent to the small claim court (easy when done on line) for the deposit because i would guess the tenant wouldnt be intitled to it due to arrears.

[Ineedadvice]

It is now accepted that the agent can be taken to court for the x3 but it would depend on who the tenant named on the court papers.

To cover yourself find the funds to protect the deposit again in the custodity scheme.

How did the agent arrange for the deposit protection they did to be made invalid?

If the tenant is 2 months in arrears/owing you can still go down the section 8 grounds 8,10,11 route and then apply for a court hearing after 14 days.

So protect the deposit yourself NOW to stop any future x3 claim

Serve a section 8

You can also serve another s21 after protecting the deposit (this would be for back up in case the T brings arrears under 2 months)

When you have got your property back take the agent to the small claim court (easy when done on line) for the deposit because i would guess the tenant wouldnt be intitled to it due to arrears.

[Ineedadvice]

Dear Speedtwin,

Many many thanks for this excellent advice. Much better than what I have been getting from the solicitor. I was just on the point of finding the money to register the deposit myself when I heard about a new problem.

A neighbour has told me that the tenant's flatmate told her that the letting agent also at some point offered the tenant an option to renew for a second year.

Assuming tenant has taken up this option and now has an agreement for a second year through the agency, is my position completely hopeless? Or would the court say that since I did not agree to it and had no knowledge of it, it is not valid?

I am very grateful for any assistance.

[SPEEDTWIN]

Dear Speedtwin,

Many many thanks for this excellent advice. Much better than what I have been getting from the solicitor. I was just on the point of finding the money to register the deposit myself when I heard about a new problem.

A neighbour has told me that the tenant's flatmate told her that the letting agent also at some point offered the tenant an option to renew for a second year.

Assuming tenant has taken up this option and now has an agreement for a second year through the agency, is my position completely hopeless? Or would the court say that since I did not agree to it and had no knowledge of it, it is not valid?

I am very grateful for any assistance.

You should write to the agent by recordrd delivery and state that you do not authorise any new tenancy being offered to the tenant.

You need to know about any new contract or not because it could make any s21 (after deposit protected) you serve invalid.

[Ineedadvice]

Hi Speedtwin:

About your comment "It is now accepted that the agent can be taken to court for the x3 but it would depend on who the tenant named on the court papers," can you tell me where I can find the precedent that the agent can be taken to court for the x3 - because my solicitor does not know, but I could cite it for him.

What do you mean about "who the tenant named on the court papers"?

Very many thanks.

[SPEEDTWIN]

Hi Speedtwin:

About your comment "It is now accepted that the agent can be taken to court for the x3 but it would depend on who the tenant named on the court papers," can you tell me where I can find the precedent that the agent can be taken to court for the x3 - because my solicitor does not know, but I could cite it for him.

What do you mean about "who the tenant named on the court papers"?

Very many thanks.

I mean who the tenant names as the defendant (landlord, agent or both) on the part 8 court papers. (The normal small claims route is now consided not the correct route)

I would say you have chosen the wrong solicitor if he wants you to do his work for him (ask for a discount) and send him this link

http://www.bailii.org/ew/cases/EWHC/QB/2010/217.html

I have only scaned it briefly but para 13 is quite clear. There are other cases out there as well I believe.

Another thing to consider is who was the deposit handed to. I dont think the agent could be at fault if the tenant handed it directly to the landlord.

[Ineedadvice]

Many thanks, Speedtwin.

I asked the solicitor whether I could use my own money to register the deposit and then approach the letting agency for reimbursement. He said that it wouldn't work because it would not actually be the tenant's deposit. This does not make any sense to me. Would there be any precedent for this that you could cite?

Thanks again.

[SPEEDTWIN]

That doesnt make any sense to me either because once it is protected in the tenants name and the precribed info given in the eyes of the law it would be the tenants. Unless i am missing something. Any others members have any thoughts on that point?

I still think you need to change solicitor. It may maybe time to get a 2nd opinion i have heard Painsmith are good.

http://www.painsmith.co.uk/Services

[Ineedadvice]

Hi Speedtwin,

Many thanks for your comments and for mentioning a solicitor.

Do you know of anyone with a lot of experience of dealing with overstaying tenants in the Oxfordshire area?

Many thanks.

[Ineedadvice]

Dear Speedtwin,

You have gone very quiet.

Please let me know if you know of other solicitors experienced in this area in Berks, Oxon, or Gloucs.

Very grateful for your help.

[Melboy]

Try this...........

http://www.contactlaw.co.uk/property/?clad...cfugz3woddgtjfa

.....and to ever you talk to make sure that they are aware of you requirement for a specialist Landlord/ Tenant Lawyer who can deal with your matter quickly and efficiently by experience of disputes.

[Lyndon]

Change your solicitor!

You are responsible for protecting the deposit whether the money initially came from the tenants or not! Had the agent gone bust and the money lost, you would have to reimburse your tenants. What would your solicitor's response be to that?

Tenants can sue the landlord OR the agent for failure to protect the deposit. You can, if sued by the tenants, sue the agent for their failure to act on your behalf and I suggest you contact the agent regarding this.

Is the agent a "Managing" agent? If not then they have no authority to issue a new AST without your consent.

[Ineedadvice]

It is now accepted that the agent can be taken to court for the x3 but it would depend on who the tenant named on the court papers.

To cover yourself find the funds to protect the deposit again in the custodity scheme.

How did the agent arrange for the deposit protection they did to be made invalid?

If the tenant is 2 months in arrears/owing you can still go down the section 8 grounds 8,10,11 route and then apply for a court hearing after 14 days.

So protect the deposit yourself NOW to stop any future x3 claim

Serve a section 8

You can also serve another s21 after protecting the deposit (this would be for back up in case the T brings arrears under 2 months)

When you have got your property back take the agent to the small claim court (easy when done on line) for the deposit because i would guess the tenant wouldnt be intitled to it due to arrears.

[Ineedadvice]

How do I take the agent to the small claim court (easy when done on line) for the deposit?

Can you give me a link to the website or however it is done?

Many thanks,

[holbyandbusby]

My property is managed by a letting agency, which took a deposit from the tenant. They then registered it with an insurance-based deposit protection scheme, and, it appears, very deliberately, arranged for the registration to be invalid. I have talked with the scheme, and it cannot be corrected with them.

The tenancy is ending and the tenant is two months behind with the rent.

We have issued a Section 21 notice, but, as I have just discovered, we do not have the proof of deposit protection needed to go to court.

I am advised that I can insist that the letting agency hand over the deposit to me so that I can re-register it, but if anyone can give me any advice as to what leverage I have to force the agency to hand over the deposit, I would be extremely grateful.

Many thanks.

We had a problem with an agent who didn't give us the details of the deposit registration as per the law, nor the tenants. In this instance the tenats are protected and can go to Trading standards to complain that the agent has not informed them of the deposit registration. The landlord is in the clear here if the property was managed by the agent but can ensure that it is not them who get sued if they can show that they went to some lengths to sort outthe probelm and that they are not at fault. The Agent is then liable to pay the tenant 3 times the intitail deposit back. This is managed by trading standards. However it will only get the deposit back to the LL if the tenant agrees to hand over the sum to them after this.

This is just a mine field for the LL and it is all geared in favour of the Tenant.

[holbyandbusby]

How do I take the agent to the small claim court (easy when done on line) for the deposit?

Can you give me a link to the website or however it is done?

Many thanks,

Hi there,

Small claims with the agent is easy enough but, from experience, you do need to show material loss which is caused by them. You need to have reciepts, get evrything put right professionally and you have to show that they were responsible by use of emails, letters and agreements. Get all your evidence in place after you have made the submission to small claims. You can do this on the court service website.

Before you go to the website you need to decide how much they owe you and briefly for what reason. No case gets thrown out here, so you don't need to be too clued up but you do need to have a good idea of what you want from them.

Unlike with the deposit service, you can change the amount later if you find new evidence.

Be aware that you cannot claim legal costs but you can claim loss of earnings for the day in court and post etc for the case.

Get advice from the CAB.

Be aware that your agent will probably get a lawyer, who will probably try to get it thrown out using loopholes. Use the CAB to get hold of the court proceedures for a peek - 2 big green books and go through them to find ways to anoy them back, such as asking for origonal documents using the proceedural rules, asking for them to send you documents under the proceedural rules.

[holbyandbusby]

Hi Speedtwin:

About your comment "It is now accepted that the agent can be taken to court for the x3 but it would depend on who the tenant named on the court papers," can you tell me where I can find the precedent that the agent can be taken to court for the x3 - because my solicitor does not know, but I could cite it for him.

What do you mean about "who the tenant named on the court papers"?

Very many thanks.

the information you require is in a leaflet issued by the TDS about the gvmnt guidelines to deposits.

When we had an agent not give the information about the deposit to us and chased them for over a year, we eventually sacked the agent, who wanted to continue to trade, so handed over the deposit to us to reinvest, which we did. We then told the tenant about the law and they got 3 X the origonal sum back from the agent, who can no longer hold deposits. They didn't tell us about this as they kept all the money for themselves, we found out that due to a letter from the deposit protection service they had used.