Rental Deposit held by Agent [Resolved]

[loring]

Hi PlanB
I moved flat recently, my last Landlord/Agent
kept £550 from my deposit of £780. He has sent me a statement saying the £550 is for Agency Commission. I have previously requested him to advise me which deposit scheme my deposit was held but he did not reply. I checked the 2 rent deposit schemes and neither of them have any record of my deposit.
I believe I may be able to take the matter to court, can you advise me what the procedure for that is and are there any circumstances where one may be unable to claim.

[PlanB]

Re: Rental Deposit held by Agent

Hi PlanB
I moved flat recently, my last Landlord/Agent
kept £550 from my deposit of £780. He has sent me a statement saying the £550 is for Agency Commission. I have previously requested him to advise me which deposit scheme my deposit was held but he did not reply. I checked the 2 rent deposit schemes and neither of them have any record of my deposit.
I believe I may be able to take the matter to court, can you advise me what the procedure for that is and are there any circumstances where one may be unable to claim.

You can't have anything deducted from your deposit unless it was specifically spelt out in a clause in your tenancy agreement. Do you still have that even though you've moved out?

These are typically things like inventory check-out, professional clean (including curtains & carpet), chimney sweep (if there is a chimney!), fumigation if you had a pet, and of course damage. The Landlord/Agent must provide you with receipts for all these items as proof. Damage is something you can argue if you've been there a long time as this would be considered as general 'wear and tear' and that's the Landlord's responsibility and not yours unless you actually broke something like a Ming vase or spilt red wine on a marble fireplace (marble is porous!).

You say this £550 has been identified as "Agency Commission" which is not normally charged to the tenant. But if you moved out before the end of your contract it's possible that this relates to the cost of finding a replacement tenant instead of charging you the rent up to the end of the tenancy agreement. Landlords will agree to let you go early if it's at no exta cost to them. Did you vacate early?

[loring]

Re: Rental Deposit held by Agent

Hi Plan B'
When I moved into the flat no inventory was carried out.
The previous tenants had stuck posters and things for their child on the walls and whilst removing them pulled the paint off the walls in several places. The agent asked me to paint the bedroom and he paid me £150 to do so.

On moving the wardrobes I found that there was damp all along the wall, it extended about 12" up the wall and about 12" out from the bottom of the wall, the carpet had rotted in that area. The landlord renewed the carpet and I attempted to treat the wall with damp cure paint. I requested the agent to get the damp sorted out and his response was to say he would contact the landlord to arrange this. Nothing was ever done by the landlord.

The agent also agreed to install a new bathroom as the bath was badly worn and had a repair done to a hole in the bottom of the bath, the wash hand basin was cracked and the side panel to the bath was rotten due to water from the shower. He sent a plumber to measure up for a new bathroom suite and told me it would be installed the following week. It never was and he put the date back month after month and then from year to year. It has never been done and he recently told me the landlord does not want to spend money on the property.

In January this year I noticed the radiators were not as hot as they should and the flat was becoming cold, I bled the radiators but that made no difference. There was no heat in the bedroom radiator. I reported this to the agent and also advised him the boiler was becoming very noisy as well and I was unable to sleep with it running at night. He again said he would report it to the landlord. Nothing was ever done. During the gas inspection in April 2012 I asked the engineer if he knew what was wrong with the boiler and the cold radiators, he told me the radiators were full of sludge and the boiler was probably noisy because sludge was being forced through the pump instead of water. He agreed to discuss this with the agent. Again nothing was done and in June the agent himself came to look at it. He stated it was an expensive job to flush the heating system and he would talk to the landlord about it. Nothing was ever done about the heating.

I decided I was wasting my time asking the agent to repair or resolve any of the problems at the flat and I started looking for somewhere else to live. On 14th August I found a suitable property and informed the agent I wished to move on 15th September. He said that was no problem he would put it on his internet site right away. " people came to view the flat two days later and one of them agreed to take the flat and paid the holding deposit. The agent told me I would get my deposit back less a small charge he had to pay back to the landlord for managing the lease , he said it would be around £10-£20 for the 7 remaining months of the contract. The agent arranged to meet me at the flat on 17th September to do the check out, he phoned 30 mins before the appointment and cancelled, asked me to return the keys to his office and he would look at the flat the following day himself. He again phoned me on the 19th September and told me he had been to the flat, everything was OK and he would return my deposit less the small charge we had discussed previously. On the 20th he sent me a Deposit Refund Notice stating a deduction of £550 as an Agency Commission.
I apologise for being a bit long winded but I wish to give you all the relevant information so that I receive your best advice.
I am also sending you another PM.

[PlanB]

Re: Rental Deposit held by Agent

Was the letting agent managing the property since you refer to reporting problems to one If you did and the agent failed to fix things then if they are a member of the Property Ombudsman Scheme (it's compulsory for an agent to belong to a third party redress scheme and TPO is the norm) so you can take your complaint about the deposit there and have it sorted for free and without the stress of court. Check this first :

http://www.tpos.co.uk/make_complaint_rents.htm

If there was no inventory at the beginning then there can be no deductions from your deposit whatsoever for damage since there was no record of the condition at the outset was there If there was an inventory done you would have had to agree the contents and sign it otherwise it's worthless as evidence. Some dodgy Landlords try to produce them backdated without the tenant's signature

When did this tenancy start since you say the repairs weren't carried out "year after year". This matters because the Tenancy Deposit Scheme (prompted by legislation) came into force in April 2007. Any deposit taken before that date did not have to be protected retrospectively unless the tenancy was renewed. So if you stayed on as a periodic tenant (your original AST just rolled over) then your Landlord would have no statutory obligation to insure it. But then later you say there was "7 months remaining" on the lease so maybe you renewed it at some point in which case the deposit should have been placed in a scheme at the renewal

What a pity you didn't raise this before the end of your tenancy because I would have suggested that you should withhold your last month's rent against the lack of repairs, your Landlord would then have to pursue you for the rent and you would counterclaim for damages due to lack of repairs All is not lost though because you can still use this as ammunition against whatever reason is given for withholding your deposit

Update me on the tenancy dates and we'll take it from there

[loring]

Re: Rental Deposit held by Agent

Thanks Plan B
The tenancy started in May 2010.The agent manages the property for a faceless landlord who lives close to the flat, but no tenant has ever met her. According to the agent she has only visited the property once in 14 years. Very hands off, just pays the agent to be her gate keeper.
The landlord told me the bathroom would be replaced in May 2010, then June, July, August and September 2010. Then it moved to summer 2011 with the same June, July, August and September 2011. Then It moved to summer 2012.
The lease an Assured Shorthold Tenancy and was renewed in May 2011 and May 2012.
Although the landlord is an estate agent his letter heads and web site do not indicate he is a member of any body.
There was never an inventory, I know the previous tenant done the checkout for himself from an older inventory the agent sent to him, he was asked to "mark up any changes" to the old one.

[PlanB]

Re: Rental Deposit held by Agent

Since the AST started in 2010 the Landlord has a statutory obligation to insure it. And then un-insure and re-insure it every time it's been renewed since, and the tenant must be sent written details each time. It looks like yours hasn't but this doesn't mean it's not insured since some Landlords can be sloppy with the follow-up paperwork

You say you've checked with two of the schemes but there are three. Two are custodial schemes (the agent or the scheme hold the money) but the third scheme allows the Landlord to hold the deposit but insure it with My Deposits http://www.mydeposits.co.uk/tenants Try this one if you haven't already, but don't hold your breath judging by the story so far

Once you've established it's not insured you will have your bargaining power

Now the not so good news. If you still had seven months to run on your tenancy agreement when you left the property you will owe all that rent to the Landlord since it's a legally binding contract However, the Landlord is not allowed to claim the same rent twice, so if it has been re-let to another tenant then the Landlord can't pursue you for that period of time (i.e. 7 months) only for any void between the two lets That will be your difficulty but it's not without hope. At present it appears you owe your Landlord seven months rent, and the Landord owes you £550 wrongfully deducted from your deposit. So I feel this will be best sorted by pressurised negotiation than the the court where you could come off worse Don't worry because a lot will depend on who signed what and when in letters etc and I'll ask you for more info as we work through this

Start by writing to the Agent and ask for details of your deposit's insurance scheme which will make them focus. Give them 7 days to respond to your request. I'll post up some template letters from the Shelter website to help you later

[loring]

Re: Rental Deposit held by Agent

Hi Plan B
No record of the deposit being placed at http://www.mydeposits.
I will await your templates and write again. The previous time I wrote for details of the rent deposit scheme the agent did not respond.

[PlanB]

Re: Rental Deposit held by Agent

Then you have won the first round

Here's the link to Shelter with the Template letter which threatens court action if the deposit is not returned (scroll down to Point 3 "My Deposit is Not Protected"). You should send this to the Landlord with a copy to the Agent. Which one did you pay the deposit to and do you have a receipt to support this?

http://england.shelter.org.uk/get_ad...FUPHtAodwx8ArQ


Hopefully we'll soon be having some of our own Template letters on the site

Before you make up your mind about taking the Landlord to court there are other things to consider such as the ongoing rent you owe in theory. But I'd need to know more about what you agreed should happen if you left early and whether any of it was in writing/email.

One other thing which occurs to me is that you have clearly suffered from terrible disrepair and damp problems. Later I'll explain to you about how you can use this to help along your negotiations. A complaint (or a threat of ) to the Environmental Team at the local authority could get the property closed down and that could make the Agent/Landlord focus even more

[loring]

Re: Rental Deposit held by Agent

Hi Plan B
I paid the deposit to the Agent so should I write to the Agent or to the Landlord who signed the Agreement.
Does the Landlord and Tenant Act SECTION 11-16 not come into this AS the heating and damp and the bathroom were never repaired

[PlanB]

Re: Rental Deposit held by Agent

Hi Plan B
I paid the deposit to the Agent so should I write to the Agent or to the Landlord who signed the Agreement.
Does the Landlord and Tenant Act SECTION 11-16 not come into this AS the heating and damp and the bathroom were never repaired

The person named as the Landlord is the person responsible for insuring your deposit so send the letter to the Landlord if they are named on the AST with a copy to the Agent who seems to have been mis-managing the property

The deposit issue is separate from the disrepair issue in legal terms. The deposit is for a reason (as identified in your AST) and it has to go back to you unless you've breached any of those clauses. That's that.

Since you are no longer living at the property you are no longer suffering from the disrepair. I think you said that the poor living conditions were there from almost the very beginning. A question any court may ask is "if it was so bad then why did you renew the tenancy agreement and stay there?". Tell me more on dates again.

Please don't think I'm being negative, but I don't want to lead you up the garden path. However if your health has suffered from those damp problems (and the direct link can be proved with medical evidence as back-up) then you may have a claim against the Landlord. I'll have to research this a bit more, but it could be a seen as a Personal Injury or negligence claim.

[loring]

Re: Rental Deposit held by Agent

Hi again plan B, still got a query about who to send the letter about the deposit to.
In a previous post you said send to to the landlord: in my case the landlords names are on the agreement as " Mr and Mrs Smith" and the agreement is signed on their behalf by the agent.Is it OK for me to write to "Mr and Mrs Smith" or should to Mrs Smith whose first name I know. Please let me know your thoughts on this.
Thanks
loring

[PlanB]

Re: Rental Deposit held by Agent

Hi again plan B, still got a query about who to send the letter about the deposit to.
In a previous post you said send to to the landlord: in my case the landlords names are on the agreement as " Mr and Mrs Smith" and the agreement is signed on their behalf by the agent.Is it OK for me to write to "Mr and Mrs Smith" or should to Mrs Smith whose first name I know. Please let me know your thoughts on this.
Thanks
loring

You send that Letter Before Action to Mr & Mrs Smith if they're both named as joint Landlords on your tenancy agreement. Don't worry about first names. The AST could be in the name of anybody such as Queen Victoria or Shrek and it's often in the name of a limited company. But under section 148 of the Landlord & Tenanct Act 1987 boring the Landlord has a statutory duty to provide the Tenant with the name and address of who will accept service of any legal stuff and it must be embodied in that tenancy agreement Was this s.148 mentioned in your AST because it must be and it's bad legal news for the Landlord if it isn't

But I'm getting a funny feeling about this set-up between the Agent and Landlord Was your Landlord an innocent party who paid the Agent to take care of everything and the Agent didn't do the job properly And did your Landlord perhaps believe that the Agent had insured the deposit on its behalf and the Agent failed to do this hence the silence

That's why it's good a thing if you send your LBA to both so that one can't hide behind the other and the truth will out

It's nice to think that an AAD member will be sending out a LBA instead of the other way round

[loring]

Re: Rental Deposit held by Agent

Hi Plan B
The agreement does mention the Landlord and tenant Act Section 48.
Your suspicions about the Landlord and the Agent are well founded, the previous tenant wrote to the landlord in an attempt to get his deposit back and the landlord passed it to the agent to respond. The previous tenant eventually gave up.
That is why I described the landlord in my first post as faceless. They are totally hands off and the agent deals with everything and claims verbally that the landlord does not want to spend money on the property.

There is a clause in the contract which at best can be described as inaccurate or unreliable. It claims:
" Notice is hearby given that possession might be recovered under Ground 1,Schedule 2 of the Housing Act 1998 if applicable. That is, that the landlord used to live in the property as his or her main home: or intends to occupy the property as his or her only or main home. The landlord has never lived in the property, the landlord and their five children own a very large house in a very sought after area and it would be unrealistic for all of them to live in a small one bedroomed flat. I believe this clause is there so that if a tenant becomes awkward or or with holds monies while waiting for repairs to be carried out they would be served with a notice to quit.

[loring]

Re: Rental Deposit held by Agent

Hi plan B
I have sent off the letter as suggested in Post 8. I have asked for a response in writing only as I expect it to be passed to the agent to deal with and I can negotiate with the agent as he always goes back on what he says, I would need it in writing from him.

[PlanB]

Re: Rental Deposit held by Agent

Hi plan B
I have sent off the letter as suggested in Post 8. I have asked for a response in writing only as I expect it to be passed to the agent to deal with and I can negotiate with the agent as he always goes back on what he says, I would need it in writing from him.

The Landlord can pass your letter to whomever they want but it'll make no difference to their legal responsibility to insure your deposit