Confusing times! Deposit not protected and about to end tenancy

Shunsui

Hello all, long time lurker, first time caller. I'm in an absolute twist and thought that amongst the fine brains that populate the MSE forums I might find some sage advice.

To cut a very long story short(ish), I am currently renting a property on a periodic tenancy. The letting agent that I signed the initial AST with went bust, apparently taking with them several month's rent and my deposit. The AST began on the 7th of February 2008. That's right, despite it saying very clearly in the tenancy agreement that my deposit would be held with the Deposit Protection Service, this never actually happened :mad:. After much ringing around I finally established that it was the landlord's responsibility to refund the deposit in these circumstances (I have checked with all the deposit schemes that I can find, not one of them have heard of the former letting agent or this property so that money is sadly vanished).

Now greedy little me would just love to go bouncing into court and demand a huge sum of cash, especially in these dire times. Fear not though, the sensible side says that I should not get something for nothing, and that just getting my deposit back would be fine. However this is being thwarted by the letting agency that took over management of the property. They insist that I should chase the bust company for my money, which I am advised is totally incorrect.

To cap it all off, having not signed anything with the new agency, they have started demanding that I allow quarterly visits, which I was not made aware of prior to the letter telling me that they would be coming round, with or without accompaniment. The first "inspection" that they wanted to perform was on the 23rd of December, which I made clear would be unacceptable as I was away visiting relatives (at present I don't live in a massively desirable area and would not be happy for strangers to go prodding about my abode without me being present, especially at that time of year). They agreed to rescheduling in the new year, then turned up anyway :rolleyes2, but fortuitously did not have a key. There are some other issues, and frankly I'm fed up of feeling bullied by an agency that did not make things clear at the start. I'm not unreasonable, I was happy for them to perform an inspection when they took over the property in September, but I am definitely one of those people that considers every three months to be a bit much.
I will be moving in with my OH at the start of March, so giving notice... gosh, this week :eek:

There is a point to all this, I promise! Given that I will be leaving soon, and the obstruction that the letting agency seem to be placing on return of my poor unprotected deposit, where do I stand with withholding the final month's rent? I have just cancelled the standing order with a view to discussing this via 'phone and in writing with the agency, to hopefully reach a mutually acceptable conclusion.

I hope this ramble makes sense , any advice or views would be greatly appreciated!

Debt_Free_Chick

Effectively, you have no lawful right to withhold the rent. The rent covers your right to occupy the property - the deposit is entirely separate.

If you come to a mutual arrangement - in writing - to withhold the rent, that's a different matter. But you cannot insist on withholding rent as a way of getting your deposit back.

The new agents may be right - the lost deposit is almost certainly nothing to do with them. But I think you know this as you know that it's the LL's responsibility? Essentially, you claim the deposit from the LL and getting anything out of the old LA is the LL's problem.

Shunsui

Yep yep, I know it's the landlord's responsibility, but getting the letting agents to recognize that seems to be a different matter .
I'm not withholding the rent as a bargaining tool for the deposit, well at least that's not my current intention, but with the way things are going with this agency I am concerned that I will leave the property and face a lengthy battle to get the money back from the landlord, who may well have been given the same erroneous advice from the agents, i.e. that it is not their (the landlord's) problem.

RainMaker_2

Sunsui....

Shunsui wrote: »

The letting agent that I signed the initial AST with went bust, apparently taking with them several month's rent and my deposit. The AST began on the 7th of February 2008.

You are not responsible for the well being of the LL’s agent. It is the LL that will take the financial hit in this case, not you.

That's right, despite it saying very clearly in the tenancy agreement that my deposit would be held with the Deposit Protection Service, this never actually happened .

Now greedy little me would just love to go bouncing into court and demand a huge sum of cash, especially in these dire times.

There is an awful lot of duff info banding around over this one, primarily because the law was badly written. Providing the LL protects the deposit before the court hearing you have no case for compensation. Similarly, if the deposit is refunded before the court hearing you have no case for compensation.


Fear not though, the sensible side says that I should not get something for nothing, and that just getting my deposit back would be fine. However this is being thwarted by the letting agency that took over management of the property. They insist that I should chase the bust company for my money, which I am advised is totally incorrect.

You’ve had good advice. Once again, it is the LL that is responsible for your deposit, and he cannot abdicate this responsibility.

To cap it all off, having not signed anything with the new agency, they have started demanding that I allow quarterly visits, which I was not made aware of prior to the letter telling me that they would be coming round, with or without accompaniment.

There will almost certainly be a clause in your original agreement allowing for periodic inspections. There is also a LL’s right to inspection written into housing law. I would suggest quarterly is quite reasonable.

The first "inspection" that they wanted to perform was on the 23rd of December, which I made clear would be unacceptable as I was away visiting relatives (at present I don't live in a massively desirable area and would not be happy for strangers to go prodding about my abode without me being present, especially at that time of year). They agreed to rescheduling in the new year, then turned up anyway , but fortuitously did not have a key.

No harm done then.

I'm not unreasonable, I was happy for them to perform an inspection when they took over the property in September, but I am definitely one of those people that considers every three months to be a bit much.

Don’t think every 3 months is excessive. Only takes 20 minutes, and you don’t even have to be there.

There is a point to all this, I promise! Given that I will be leaving soon, and the obstruction that the letting agency seem to be placing on return of my poor unprotected deposit, where do I stand with withholding the final month's rent?

Unless I’ve missed something here, how exactly are the letting agency “obstructing” the return of your deposit. It’s not even owed to you yet !

Most agreements require 1.5 x monthly rent as a deposit precisely to cover this scenario of Tenant withholding final month’s rent. You can expect to kiss goodbye to the remaining 0.5 x monthly rent deposit if you withhold the final months rent.

I have just cancelled the standing order with a view to discussing this via 'phone and in writing with the agency, to hopefully reach a mutually acceptable conclusion.

Good for you. See above.

RainMaker_2

Shunsui wrote: »

Yep yep, I know it's the landlord's responsibility, but getting the letting agents to recognize that seems to be a different matter .
I'm not withholding the rent as a bargaining tool for the deposit, well at least that's not my current intention, but with the way things are going with this agency I am concerned that I will leave the property and face a lengthy battle to get the money back from the landlord, who may well have been given the same erroneous advice from the agents, i.e. that it is not their (the landlord's) problem.

Your contract is with the LL, not his agent, or his agent's mum, or the agent's mum's sister, and so on.

You are "concerned" to face a "lengthy battle" to get your deposit back ?

Welcome to the Tenancy deposit scheme. Even when you're out, you're in. Go figure :rolleyes:

Shunsui

Thanks guys.
Rainmaker, I paid 1 month's deposit, don't know if that's now considered unusual? The main reason I don't want things to drag on too long is because of the move in March, it would be great if I could get the money back within a few weeks as is usual, but if it takes longer then that's what it takes I suppose.

I'll agree to disagree on quarterly inspections , it's mainly that I wanted to be there at a rearranged time and the agency disregarded this.

Sorry for being such a noob, I've was out of the rental scenario for a while and it all seemed to change overnight!

tbs624

On the inspections, it is reasonable for a LAto be asked to arrange an appointment for when the tenant can be there, if that is preferred.There is, as Rainmaker says, an implied term that a LL or his/her agent may inspect the property, so that they can comply with their repairing obligations, but the law also expects both parties to be reasonable.

Do you have the LLs name and address? If not, whilst you are still a tenant ask the LA in writing for this info - they have to give it to you within 21 days ( it's an offence to fail to do so)

It doesn't matter what anyone has told the LL, the fact is that under the tenancy deposit laws the LL *is* wholly responsible for the return of your deposit.

You should contact the LL and say that you would like him/her to personally call round at an agreed time to discuss the return of the deposit, and see what they say. It gives the LL chance to highlight any potential problems with the condition of the property (& you chance to rectify them where appropriate).

You may have to resort the small claims court but if you have good written notes on phone conversations, your original deposit receipt etc, and copy letters that show you have made attempts to reach resolve it will make things easier.

RainMaker_2

Shunsui wrote: »

Thanks guys.
Rainmaker, I paid 1 month's deposit, don't know if that's now considered unusual?

Very unusual in my experience.

Shunsui

tbs624, what a good idea, I wonder when the landlord was last even in this property?

Rainmaker, I suppose it may say something about the former agency then, 1 month rent and deposit up front, no inventory on a supposedly "part furnished" (read bloodied futon) property, and... no deposit receipt that I remember >_>. And then they soaped up their shop windows and ran. Lesson rather well learnt, I think.

paintpot

What's the adress for service of notices in your tenancy agreement? If it's the old agent's address, the new agent should have served you with a S48 notice (Landlord & Tenant Act 1987) when they took over stating their address unless the address for service of notice has always been the landlord's address. If you weren't served with a S48 as required, then you can legally withold rent until you are. However, you do have to repay any rent witheld once they comply. Your tenancy should refer to S48 and the service of notices so have a look.

Thus, if you don't have the landlord's details, the agent won't supply them and the agent hasn't complied with the law in relation to the S48 then you may have another avenue in explore.

clutton_2

if there is no inventory it is unlikely the LL has any case in law to claim back your deposit for damage